An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA15-221

                                  Filed: 6 October 2015

Forsyth County, Nos. 13 CRS 5891, 13 CRS 52447

STATE OF NORTH CAROLINA

              v.

BRIAN DEWAYNE MCCULLOUGH


       Appeal by defendant from judgment entered 25 June 2014 by Judge Edwin G.

Wilson in Forsyth County Superior Court.            Heard in the Court of Appeals 9

September 2015.


       Attorney General Roy Cooper, by Assistant Attorney General Cathy Hinton
       Pope, for the State.

       Charlotte Gail Blake, for defendant.


       CALABRIA, Judge.


       Brian Dewayne McCullough (“defendant”) appeals from judgment entered

upon a jury verdict finding him guilty of felony larceny from the person and his

subsequent admission to attaining the status of an habitual felon. We find no error.

       On 20 February 2013, Diana Morales (“Morales”) was working alone as a store

manager of Aces and Me Wireless. That morning, defendant entered the store and

asked Morales to answer questions about the company’s different cell phones and
                                STATE V. MCCULLOUGH

                                   Opinion of the Court



wireless plans. Once defendant picked out a phone, Morales provided him with an

activation form to complete.

      Morales then walked to the store’s stock room to retrieve the phone defendant

had chosen and, upon her return, she placed the phone on her desk, which was located

behind an “employee-only” counter. After Morales informed defendant of the phone’s

price, she moved to the computerized register and entered the relevant purchase

information. Morales also retrieved the activation form, returned to the register, and

continued standing there while she entered the information from the form defendant

had completed. At that time, defendant jumped across the counter, grabbed the

phone from Morales’ desk, and returned to his original position.          Fearing that

defendant might grab, hit, or otherwise assault her, Morales ran to “the other side.”

When defendant moved toward Morales again, she threw the activation form papers

at him, which prompted defendant to pick up the forms and run from the store.

      Defendant was indicted on one count of common law robbery and for attaining

the status of an habitual felon. His trial began in June 2014 before the Honorable

Edwin G. Wilson in Forsyth County Criminal Superior Court. At closing arguments,

defendant, through his trial counsel, admitted to misdemeanor larceny. During the

charge conference, the State requested a jury instruction on larceny from the person

as a lesser included offense of common law robbery. Defendant objected to the State’s

request, but the trial court overruled the objection. The jury instructions included the



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                                  Opinion of the Court



following possible verdicts: guilty of common law robbery, guilty of felonious larceny

from the person, guilty of misdemeanor larceny, or not guilty. After the jury returned

a verdict finding defendant guilty of felony larceny from the person, he pled guilty to

the habitual felon charge. The trial court sentenced defendant to a minimum of 58

and a maximum of 82 months in the custody of the North Carolina Division of Adult

Correction.

      On appeal, defendant challenges his conviction for felony larceny from the

person and his subsequent admission to attaining the status of an habitual felon.

Specifically, defendant contends that the evidence was “insufficient to show that the

cell phone was under [Morales’] protection or control when [he] grabbed” it.

      When the evidence would allow a jury to rationally find a defendant guilty of

a lesser included offense and to acquit him of the greater offense, an instruction on

the lesser offense must be given. State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d

767, 771 (2002).    But “[w]here jury instructions are given without supporting

evidence, a new trial is required.” State v. Porter, 340 N.C. 320, 331, 457 S.E.2d 716,

721 (1995). Challenges to the trial court’s decisions on how to instruct the jury are

reviewed de novo. State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009).

      “The essential elements of larceny are: (1) taking the property of another; (2)

carrying it away; (3) without the owner's consent; and (4) with the intent to deprive

the owner of the property permanently.” State v. Wilson, 154 N.C. App. 686, 690, 573



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                                  Opinion of the Court



S.E.2d 193, 196 (2002). When property is taken “[f]rom the person,” the larceny

becomes a Class H felony “without regard to the value of the property in question[.]”

N.C. Gen. Stat. § 14–72(b) (2013).

      “[F]or larceny to be ‘from the person,’ the property stolen must be in the

immediate presence of and under the protection or control of the victim at the time

the property is taken.” State v. Barnes, 345 N.C. 146, 149, 478 S.E.2d 188, 190 (1996)

(emphasis omitted) (citations omitted). This Court has recognized that the victim’s

awareness “of the theft at the time of the taking . . . is relevant to protection and

control.” State v. Boston, 165 N.C. App. 890, 893, 600 S.E.2d 863, 865 (2004); see also

State v. Sheppard, __ N.C. App. __, __, 744 S.E.2d 149, 152 (2013) (evidence was

sufficient to support the charge of larceny from the person where “the victim

remained next to her shopping cart and purse, within a hand's reach, while looking

at a jar of pickles . . . , [and] immediately realized the larceny at the moment it

occurred and pursued [the] defendant as he fled the store”).

      As we understand defendant’s argument, he concedes that the cell phone was

in Morales’ presence, but he insists that the State failed to prove the phone was under

her protection or control at the time it was stolen. In support of his argument,

defendant relies on State v. Lee, 88 N.C. App. 478, 363 S.E.2d 656 (1988) and Barnes.

      In Lee, the victim “took ‘four or five’ steps away” from her grocery cart for a

couple of minutes to help the defendant’s accomplice look for unsalted sweet peas. 88



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                                   Opinion of the Court



N.C. App. at 479, 363 S.E.2d at 656. During that time, the defendant stole the

victim’s shoulder bag from her cart. Id. “Upon returning to the cart and noticing

that the bag was missing, [the victim] reported the theft to store personnel and [the]

defendant was identified and apprehended a few minutes later.” Id. “[B]ecause the

record show[ed] that the larceny involved was not from the person of the [victim] as

charged in the bill of indictment, but was from an unattended grocery cart[,] this

Court vacated the defendant's conviction for larceny from the person. Id. at 478–79,

363 S.E.2d at 656–57.

      In Barnes, our Supreme Court held that the evidence did not support a

conviction for larceny from the person where the defendant stole a bank bag from an

unattended, freestanding shopping mall kiosk. 345 N.C. at 150–51, 478 S.E.2d at

191. Key evidence before the Barnes Court indicated that the kiosk salesperson was

twenty-five to thirty feet away from the kiosk, talking to a mall employee at a

neighboring shop, when the defendant secretly removed the unprotected bank bag

from below the register. Id. at 147, 478 S.E.2d at 189.

      In the instant case, unlike Lee and Barnes, Morales was keenly aware of

defendant’s theft at the time he took the cell phone from her desk. Significantly, she

immediately moved away from defendant in fear that he might physically assault

her. See id. at 150, 478 S.E.2d at 191 (“ ‘The reason the crime of larceny from a person

is afforded special consideration is to protect the person or immediate presence of the



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                                   Opinion of the Court



victim from invasion.’ ”) (citation omitted). Because Morales placed the cell phone on

her desk and near the cash register, in an employee-only area behind the store

counter, there was sufficient evidence from which the jury could conclude that the

phone was under her protection or control when defendant took it.

      Nevertheless, defendant argues that the phone was not under Morales’ control

because “he was still at a distance from [her]” when he jumped over the counter and

back. Our case law suggests that larceny from the person occurs when the defendant

and the victim are in rather close physical proximity. See State v. Buckom, 328 N.C.

313, 318, 401 S.E.2d 362, 365 (1991) (the defendant committed larceny from the

person when he took money from cash register when the cashier was standing in front

of register making change); Wilson, 154 N.C. App. at 691, 573 S.E.2d at 196 (same);

State v. Pickard, 143 N.C. App. 485, 491, 547 S.E.2d 102, 106–07 (2001) (evidence

that the defendant snatched the victim's purse from her arm while standing behind

her was sufficient to support conviction for larceny from the person); State v. Hull, __

N.C. App. __, __, 762 S.E.2d 915, 918–19 (2014) (where the defendants stole a laptop

computer that was “about three feet from [the victim], [while] the homework, from

which she was taking a momentary break, was still on the computer screen[,]” the

“trial court did not err in denying the motions of the defendants to dismiss the charge

of larceny from the person”). But we can discern no bright line “distance” rule from

this line of cases. And while distance may help determine the level of “protection or



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                                   Opinion of the Court



control” the victim had over the stolen item, this Court has previously noted that

physical proximity is relevant to “immediate presence,” the very element that

defendant concedes on appeal. Boston, 165 N.C. App. at 893, 600 S.E.2d at 865. In

any event, since the phone was near Morales in an enclosed area and under her eye

when defendant stole it, we need say little more than the property was under her

protection and control at the time it was taken. As a result, the trial court did not err

in instructing the jury on the charge of larceny from the person.

      NO ERROR.

      Judges STROUD and INMAN concur.

      Report per Rule 30(e).




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