State v. Sexton

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.

NO. COA13-1086
NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

STATE OF NORTH CAROLINA

v. Wake County
No. 12 CRS 213765
ANTHONY JOHN SEXTON

Appeal by defendant from judgment entered 14 February 2013

by Judge Michael J. O’Foghludha in Wake County Superior Court.

Heard in the Court of Appeals 22 January 2013.

Roy Cooper, Attorney General, by Elizabeth A. Fisher,
Assistant Attorney General, for the State.

Daniel F. Read for defendant-appellant.

DAVIS, Judge.

Anthony John Sexton (“Defendant”) appeals from his

conviction for felonious larceny of a dog. On appeal, he argues

that the trial court erred by (1) denying his motion to dismiss

the charge against him for insufficient evidence; and (2)

allowing testimony regarding his temper and use of profane

language, his conduct towards one of the State’s witnesses, his

physical appearance at the time of the subject incident, and his
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conduct the day after the incident. After careful review, we

conclude that Defendant received a fair trial free from error.

Factual Background

The State presented evidence at trial tending to establish

the following facts: On 16 June 2012, Linwood Marshall (“Mr.

Marshall”), Denise Marshall (“Mrs. Marshall”), and their

children left for a weekend trip to the beach to celebrate

Father’s Day. The Marshalls left their dog, Malibu, at their

home in Youngsville, North Carolina, having previously arranged

for Mrs. Marshall’s mother to visit the house and care for

Malibu. When Mrs. Marshall’s mother visited the house to feed

Malibu on 16 June 2012, she discovered that Malibu was not in

her pen.

Upon returning home and discovering that Malibu was

missing, Mr. Marshall searched the neighborhood for the dog. He

learned that one of the neighborhood children had been walking

Malibu, that the child had accidentally dropped her leash, and

that Malibu then “took off.”

The same morning that Malibu was discovered to be missing,

Richard Aleksic (“Mr. Aleksic”) — who was staying with his

girlfriend, Charlene Dossett, in the residence next door to

Defendant’s home — witnessed Defendant chasing Malibu through a

wooded area near his house. Mr. Aleksic saw Defendant grab

Malibu’s leash and say: “I got you now, you motherf——er. . . .
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I’m going to take care of this f——ing sh—t once and for all.”

Approximately one month earlier, an altercation had

occurred between Mrs. Marshall and Defendant when his dogs

chased her while she was walking Malibu. When Mrs. Marshall

confronted Defendant about his dogs’ behavior, Defendant

responded: “[M]y dogs? Your dog comes over here all the time .

. . [S]he was over here last week and I got a video of it.”

After this incident, Mrs. Marshall did not walk Malibu by

Defendant’s house anymore.

On 17 June 2012, Deputy B.J. Simmons (“Deputy Simmons”) of

the Wake County Sheriff’s Office was on duty and received a call

from dispatch to meet Mr. Marshall at his home regarding a

missing dog. After Deputy Simmons arrived, Mr. Marshall

explained to him that Malibu was missing and that one of their

neighbors had seen Defendant “grab what appeared to be their

dog.” After gathering some information from Mr. Marshall,

Deputy Simmons proceeded to knock on Defendant’s door, identify

himself as a deputy sheriff, and inform Defendant that he was

looking for the Marshalls’ dog. When Deputy Simmons told

Defendant that Mr. Aleksic had seen him grab Malibu the previous

day, Defendant replied that he had been at work that Saturday

morning and that he did not know Mr. Aleksic.

Two days later, Mr. Aleksic was driving in his car and

discovered that Defendant was following him. For approximately
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twenty minutes, Defendant continued to follow Mr. Aleksic while

making “obscene gestures, giving [him] the finger . . . [and]

riding [his] bumper.” Mr. Aleksic called the Highway Patrol and

was instructed to turn on his four-way flashers. Once Mr.

Aleksic did so, Defendant stopped following him. Mr. Aleksic

believed that Defendant’s actions were “retaliatory” and that

Defendant was “trying to scare [him] or trying to run [him] off

the road” because Mr. Aleksic “knew the situation” with Malibu.

On 7 August 2012, Defendant was indicted and charged with

felonious larceny of a dog in violation of N.C. Gen. Stat. § 14-

81(a)(1). A jury trial was held beginning on 13 February 2013

in Wake County Superior Court. The jury found Defendant guilty,

and the trial court entered judgment on the jury’s verdict. The

trial court sentenced Defendant to 6 to 17 months imprisonment,

suspended the sentence, and placed Defendant on supervised

probation for a period of 24 months. Defendant gave notice of

appeal in open court.

Analysis

I. Denial of Motion to Dismiss

Defendant’s first argument on appeal is that the trial

court erred in denying his motion to dismiss based on the

insufficiency of the evidence. Defendant argues that the

evidence presented at trial raised only a “mere suspicion” of

his guilt of the larceny of Malibu such that dismissal of the
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charge was warranted. We disagree.

A trial court’s denial of a defendant’s motion to dismiss

is reviewed de novo. State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007). When ruling on a motion to dismiss, “the

trial court must determine whether there is substantial evidence

(1) of each essential element of the offense charged and (2)

that defendant is the perpetrator of the offense.” State v.

Bradshaw, 366 N.C. 90, 93, 728 S.E.2d 345, 347 (2012) (citation

and quotation marks omitted). “Substantial evidence is such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79,

265 S.E.2d 164, 169 (1980).

In reviewing challenges to the sufficiency
of evidence, we must view the evidence in
the light most favorable to the State,
giving the State the benefit of all
reasonable inferences. Contradictions and
discrepancies do not warrant dismissal of
the case but are for the jury to resolve.
The test for sufficiency of the evidence is
the same whether the evidence is direct or
circumstantial or both. Circumstantial
evidence may withstand a motion to dismiss
and support a conviction even when the
evidence does not rule out every hypothesis
of innocence.

State v. Fritsch, 351 N.C. 373, 378-79, 526 S.E.2d 451, 455,

cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000) (citations

and quotation marks omitted). “If there is any evidence tending

to prove guilt or which reasonably leads to this conclusion as a
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fairly logical and legitimate deduction, it is for the jury to

say whether it is convinced beyond a reasonable doubt of

defendant’s guilt.” State v. Franklin, 327 N.C. 162, 171-72,

393 S.E.2d 781, 787 (1990).

To overcome a motion to dismiss a charge of larceny, the

State must present substantial evidence that the defendant “1)

took the property of another; 2) carried it away; 3) without the

owner’s consent; and 4) with the intent to deprive the owner of

the property permanently.” State v. Osborne, 149 N.C. App. 235,

242-43, 562 S.E.2d 528, 534 (citation and quotation marks

omitted), aff’d per curiam, 356 N.C. 424, 571 S.E.2d 584 (2002).

Here, the State offered testimony from Mr. Aleksic that

Defendant (1) ran after Malibu, chasing her through the wooded

area near his house; (2) grabbed Malibu’s leash and pulled her

back onto his property; and (3) shouted “I got you now, you

motherf——er. . . . I’m going to take care of this f——ing sh—t

once and for all” after he had grabbed Malibu’s leash.

The State’s evidence demonstrated that Defendant knew

Malibu was the Marshalls’ dog and that the Marshalls had not

given Defendant consent or permission to take Malibu. See State

v. Moore, 46 N.C. App. 259, 262, 264 S.E.2d 899, 900 (1980)

(concluding that person may be convicted of larceny when he

finds and keeps lost property if “at the time he finds the

property he knows or has reason to believe that he can ascertain
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the owner of the property” (citation omitted)). The State

offered circumstantial evidence of Defendant’s intent to

permanently deprive the Marshalls of their dog through Mr.

Aleksic’s testimony that he overheard Defendant state he was

“going to take care of this f——ing sh—t once and for all” and

the fact that Defendant never returned Malibu to the Marshalls.

Furthermore, the fact that Defendant followed Mr. Aleksic’s

vehicle for approximately twenty minutes under these

circumstances allowed the jury to infer that he was trying to

intimidate Mr. Aleksic so as to prevent him from testifying

against Defendant. See State v. Brockett, 185 N.C. App. 18, 26,

647 S.E.2d 628, 635 (“Generally, an attempt by a defendant to

intimidate a witness to affect the witness’s testimony is

relevant and admissible to show the defendant’s awareness of his

guilt.”), disc. review denied, 361 N.C. 697, 654 S.E.2d 483

(2007).

Based on all of this evidence, a reasonable juror could

have concluded that Defendant was guilty of taking and carrying

away Malibu without the Marshalls’ consent and with the intent

to permanently deprive them of their dog. Accordingly, we hold

that the trial court did not err in denying Defendant’s motion

to dismiss.

II. Admission of Evidence Concerning Defendant’s Conduct and
Physical Appearance
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Defendant next asserts that the trial court committed plain

error by admitting testimony relating to (1) his following Mr.

Aleksic’s car for approximately twenty minutes; (2) his use of

profane language; (3) the “big shaggy beard” he had at the time

of the incident and the fact that he shaved it prior to trial;

and (4) the fact that he was digging in his backyard with a

tractor the day after Malibu was discovered to be missing.

Defendant argues that although “individually these irrelevant

character attacks and arguments may not have risen to the level

of reversible error, taken together they served to deprive

[Defendant] of a fair trial.” Defendant acknowledges that he

did not object to the introduction of this evidence at trial and

is, therefore, limited to plain error review on appeal.

Under plain error review, Defendant bears the burden of

showing that the alleged error “had a probable impact on the

jury’s finding that the defendant was guilty.” State v.

Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(citation and quotation marks omitted). “[T]he plain error rule

may not be applied on a cumulative basis, but rather a defendant

must show that each individual error rises to the level of plain

error.” State v. Dean, 196 N.C. App. 180, 194, 674 S.E.2d 453,

463 (2009) (emphasis added).

Here, Defendant has failed to make such a showing. He

offers no argument or explanation as to how any of the alleged
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evidentiary errors committed by the trial court — on an

individual basis — were “so fundamental that justice could not

have been done” or why these errors had a probable impact on the

jury’s finding of guilt. State v. Cummings, 352 N.C. 600, 636,

536 S.E.2d 36, 61 (2000), cert. denied, 532 U.S. 997, 149

L.Ed.2d 641 (2001). As our Supreme Court has explained:

The right and requirement to specifically
and distinctly contend an error amounts to
plain error does not obviate the requirement
that a party provide argument supporting the
contention that the trial court’s [improper
admission of evidence] amounted to plain
error, as required by subsections (a) and
(b)(5) of Rule 28 [of the North Carolina
Rules of Appellate Procedure]. To hold
otherwise would negate those requirements,
as well as those in Rule 10(b)(2).
Defendant’s empty assertion of plain error,
without supporting argument or analysis of
prejudicial impact, does not meet the spirit
or intent of the plain error rule.

Id. at 636-37, 536 S.E.2d at 61 (internal citations omitted).

Because Defendant has failed to provide this Court with any

specific argument as to why the admission of each challenged

piece of evidence rose to the level of plain error, he has

failed to meet his burden of establishing plain error. See

State v. Wiley, 355 N.C. 592, 623-24, 565 S.E.2d 22, 44 (2002)

(holding that where defendant “asserts plain error but provides

no explanation as to why any alleged error rises to the level of

plain error. . . . , defendant has effectively failed to argue

plain error and has thereby waived appellate review”), cert.
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denied, 537 U.S. 1117, 154 L.Ed.2d 795 (2003).

Conclusion

For these reasons, we conclude that Defendant received a

fair trial free from error.

NO ERROR.

Judges STEELMAN and STEPHENS concur.

Report per Rule 30(e).