An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in acc ordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-174
NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 09 CRS 237810
09 CRS 237821
10 CRS 17532
JOHN DONALD MATTHEWS
Appeal by defendant from judgments entered 31 July 2013 by
Judge Richard D. Boner in Mecklenburg County Superior Court.
Heard in the Court of Appeals 28 August 2014.
Roy Cooper, Attorney General, by Steven Armstrong,
Assistant Attorney General, for the State.
Jennifer Harjo, Public Defender, by Brendan O’Donnell,
Assistant Public Defender, for defendant-appellant.
STEELMAN, Judge.
Where the State presented substantial evidence that the
property stolen belonged to an entity capable of owning
property, the trial court did not err in denying defendant’s
motion to dismiss the charge of felonious larceny. Where
defendant failed to raise the constitutional issue of double
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jeopardy at trial, he cannot raise it for the first time on
appeal. Where the trial court admitted evidence pursuant to
Rule 404(b), and defendant’s argument on appeal is based solely
upon Rule 403, we hold that the trial court did not abuse its
discretion in admitting the evidence.
I. Factual and Procedural Background
John Donald Matthews (defendant) was indicted for felonious
breaking or entering, larceny after breaking or entering, and
larceny of a firearm arising from a 2 March 2009 break-in in
Charlotte. Defendant was also indicted for obtaining the status
of an habitual felon. Defendant was convicted, and appealed to
this Court. We held that the trial court erred in denying
defendant the right to make the final argument to the jury, and
remanded the case for a new trial. State v. Matthews, 218 N.C.
App. 277, 281, 720 S.E.2d 829, 833 (2012). The underlying facts
of this case are contained in that opinion.
On remand, defendant was tried for felonious breaking or
entering, larceny after breaking or entering, and obtaining the
status of an habitual felon. The State obtained a superseding
indictment on the habitual felon charge.
At trial, defendant represented himself, with standby
counsel present. The jury convicted defendant on all three
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counts. On 31 July 2013, the trial court sentenced defendant to
110-151 months imprisonment.
Defendant appeals.
II. Motion to Dismiss
In his first argument, defendant contends that the trial
court erred in denying his motion to dismiss the charge of
felonious larceny. We disagree.
A. Standard of Review
“This Court reviews the trial court’s denial of a motion to
dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650
S.E.2d 29, 33 (2007).
B. Analysis
Defendant was charged with, and found guilty of, felonious
larceny. A person is guilty of larceny when he takes and
carries away the personal property of another without the
latter’s consent and with intent to deprive the owner of its use
permanently. State v. Patterson, 194 N.C. App. 608, 613, 671
S.E.2d 357, 360 (2009). An indictment for larceny must name the
alleged owner or person in lawful possession of the property
and, if the victim is not a natural person, the indictment must
allege that the owner is a legal entity capable of owning
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property. State v. Phillips, 162 N.C. App. 719, 720-21, 592
S.E.2d 272, 273 (2004).
In the instant case, defendant’s indictment for larceny
stated that defendant “did steal, take and carry away cartons of
cigarettes, cigarette lighters, and United States currency, the
personal property of EGF Enterprises III, Inc., a corporation,
doing business as Value Mart, pursuant to a violation of Section
14-54 of the General Statutes of North Carolina.”
At trial, Elias Francis (Francis), one of the owners of EGF
Enterprises III, Inc. (EGF), testified as follows:
Q. And, Mr. Francis, are you associated with
EGF Enterprises III?
A. Yes, I own fifty percent of that store.
Q. Five-zero percent?
A. Yes, five-zero.
Q. And what did EGF Enterprises III operate?
A. Value Mart convenience store on McAlway.
Q. Who do you own that store with?
A. I own it with Abdelfattah Abdelmajid.
Q. Are there any other owners?
A. No.
. . .
Q. And on March 2nd, 2009 was EGF operating
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Value Mart at that location?
A. Yes.
He testified that, the day after the alleged burglary,
cartons of cigarettes were missing from the Value Mart store.
We hold that this constituted evidence that the property was
stolen from the store.
Defendant contends, nonetheless, that the evidence at trial
was “not legally sufficient to support the property-of-another
element of the larceny charge in at least two ways.” First,
defendant contends that there was no evidence as to who owned
the property stolen. This is not correct.
Francis’ testimony explicitly stated that the cigarette
cartons were discovered missing upon a review of the store’s
inventory. “Inventory” is defined as “[a] detailed list of all
things in one’s view or possession, esp. a periodic survey of
all goods and materials in stock.” The American Heritage
Dictionary, Second College Edition, 675 (1982). The cigarette
cartons were missing from inventory. Thus, they were missing
from the store’s possession. Based upon Francis’ testimony, the
store owned the missing cigarettes.
Second, defendant contends that there was no evidence that
EGF was an entity capable of owning property. Defendant
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concedes that, in the indictment, EGF is modified by “Inc.” and
“a corporation,” terms that are sufficient to convey that an
entity is capable of owning property. Patterson, 194 N.C. App.
at 613-14, 671 S.E.2d at 360-61. However, defendant contends
that no evidence was raised at trial of EGF’s status as an
entity capable of owning property.
As with defendant’s prior argument, this is not correct.
Francis’ testimony revealed that he and Mr. Abdelmajid owned
EGF, which operated Value Mart. We hold that Francis’ testimony
concerning the ownership of EGF and of EGF’s operation of the
Value Mart store constituted substantial evidence that EGF was
an entity capable of owning property. The trial court did not
err in denying defendant’s motion to dismiss the charge of
felonious larceny.
This argument is without merit.
III. Superseding Habitual Felony Indictment
In his second argument, defendant contends that the trial
court erred in permitting the State to proceed on a superseding
habitual felony indictment. We disagree.
A. Standard of Review
“An attack on an indictment is waived when its validity is
not challenged in the trial court.” State v. Wallace, 351 N.C.
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481, 503, 528 S.E.2d 326, 341, cert. denied, 531 U.S. 1018, 148
L. Ed. 2d 498 (2000). “However, where an indictment is alleged
to be invalid on its face, thereby depriving the trial court of
its jurisdiction, a challenge to that indictment may be made at
any time, even if it was not contested in the trial court.” Id.
B. Analysis
At the original trial, defendant was indicted for habitual
felon status (case number 09 CRS 68794). On remand from this
Court, the State obtained a superseding indictment for habitual
felon status (case number 13 CRS 21209). Defendant contends
that prosecution of this superseding habitual felon indictment
violated the Habitual Felons Act, N.C. Gen. Stat. § 14-7.1 et
seq., or alternatively violated double jeopardy.
First, defendant contends that the superseding indictment
was invalid because it came so long after his first trial.
Specifically, defendant notes that “the date of defendant’s plea
at the first trial was in October 2010 – long before . . . May
2013, the date of the superseding indictment.”
Defendant points to our decision in State v. Cogdell, in
which we held that “the critical event that forecloses
substantive changes in an habitual felon indictment is the plea
entered before the actual trial.” State v. Cogdell, 165 N.C.
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App. 368, 373, 599 S.E.2d 570, 573 (2004). In Cogdell, the
defendant was arraigned, and subsequently a superseding habitual
felon indictment was obtained by the State. This superseding
indictment was filed “approximately three months before
defendant’s trial.” Id. at 374, 599 S.E.2d at 573. We held
that “defendant received sufficient notice that he was being
prosecuted as an habitual felon[,]” and declined to find error.
Id. at 374, 599 S.E.2d at 574.
Defendant ignores our ruling in Cogdell, and instead pulls
language out of context to support his argument. Defendant also
ignores the fact that the superseding indictment in the instant
case was obtained after this case was appealed and remanded for
a new trial. The superseding indictment was filed in May of
2013; the new trial was held in July of 2013, two months after
the filing of the superseding indictment. In accordance with
our opinion in Cogdell, we hold that this time period gave
defendant sufficient notice that he was being prosecuted as an
habitual felon.
Next, defendant contends that the filing of a superseding
indictment constituted a violation of double jeopardy.
Defendant contends that “[t]here is no material difference
between indictments 13 CRS 21209 . . . upon which Mr. Matthews
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was convicted in this case, and indictment 09 CRS 68794 upon
which Mr. Matthews was previously convicted and sentenced.”
“[A] constitutional issue not raised at trial will
generally not be considered for the first time on appeal.”
State v. Maness, 363 N.C. 261, 279, 677 S.E.2d 796, 808 (2009).
In the instant case, defendant did not object to the habitual
felon charge against him. At no point during the trial did he
raise double jeopardy concerns regarding the superseding
indictment. Double jeopardy is a constitutional issue which
must be raised at trial to be preserved. Failure to raise
double jeopardy at trial constitutes waiver of such an argument.
See State v. Davis, 364 N.C. 297, 301, 698 S.E.2d 65, 67 (2010).
Because defendant failed to raise this issue at trial, it is not
preserved, and is not properly before this Court. The issue of
double jeopardy is dismissed.
This argument is without merit.
IV. Evidence of Later Crimes
In his third argument, defendant contends that the trial
court erred in admitting evidence of defendant’s later crimes.
We disagree.
A. Standard of Review
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“Evidentiary errors are harmless unless a defendant proves
that absent the error a different result would have been reached
at trial.” State v. Ferguson, 145 N.C. App. 302, 307, 549 S.E.2d
889, 893, disc. review denied, 354 N.C. 223, 554 S.E.2d 650
(2001).
“We review a trial court’s decision to exclude evidence
under Rule 403 for abuse of discretion.” State v. Whaley, 362
N.C. 156, 160, 655 S.E.2d 388, 390 (2008).
Though this Court has not used the term de
novo to describe its own review of 404(b)
evidence, we have consistently engaged in a
fact-based inquiry under Rule 404(b) while
applying an abuse of discretion standard to
the subsequent balancing of probative value
and unfair prejudice under Rule 403. For the
purpose of clarity, we now explicitly hold
that when analyzing rulings applying Rules
404(b) and 403, we conduct distinct
inquiries with different standards of
review. When the trial court has made
findings of fact and conclusions of law to
support its 404(b) ruling . . . we look to
whether the evidence supports the findings
and whether the findings support the
conclusions. We review de novo the legal
conclusion that the evidence is, or is not,
within the coverage of Rule 404(b). We then
review the trial court’s Rule 403
determination for abuse of discretion.
State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 158-59
(2012) (citations omitted).
B. Analysis
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Defendant contends that the trial court abused its
discretion under Rule 403 of the North Carolina Rules of
Evidence in admitting evidence of defendant’s later crimes.
Defendant bases his entire argument on this issue upon Rule 403.
On 26 June 2013, the State provided written notice to
defendant of its intent to offer evidence of a similar break-in
allegedly committed by defendant on 4 August 2009 as evidence
admissible pursuant to Rule 404(b) of the North Carolina Rules
of Evidence. Prior to calling a witness concerning the charges
in the indictment, the State called a witness to testify
concerning the 4 August 2009 break-in. The trial court allowed
this testimony for a limited purpose. Specifically, the trial
court held:
Mr. Matthews, again, the purpose of this
evidence is to show that at the time you are
alleged to have committed the crimes for
which you're being tried, you had the intent
to commit the crime and a scheme or method
or plan as to how to commit it. I've
instructed the jury that that's all they can
consider it for.
The trial court later elaborated the rule under which it
was allowing this evidence:
I've instructed the jury that they can only
consider it for the limited purpose for
which it's being offered. It's called 404(b)
evidence.
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Defendant, representing himself, acknowledged that the
evidence was being admitted under Rule 404(b), but protested
that “I don't even know what 404(b) is.”
Rule 403, concerning exclusion of relevant evidence,
provides that:
Although relevant, evidence may be excluded
if its probative value is substantially
outweighed by the danger of unfair
prejudice, confusion of the issues, or
misleading the jury, or by considerations of
undue delay, waste of time, or needless
presentation of cumulative evidence.
N.C. R. Evid. 403. By contrast, Rule 404(b), concerning the
admission of otherwise inadmissible character evidence for
limited purposes, provides that:
Other crimes, wrongs, or acts. - Evidence of
other crimes, wrongs, or acts is not
admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. R. Evid. 404(b).
Defendant has raised no argument on appeal with regard to
the admissibility of this evidence under Rule 404(b). As noted
above, defendant’s argument relies exclusively on Rule 403. We
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note that analysis under Rule 403 is part of a Rule 404(b)
analysis.
Alleged errors under Rule 403 are reviewed pursuant to an
abuse of discretion standard. “Abuse of discretion results
where the court’s ruling is manifestly unsupported by reason or
is so arbitrary that it could not have been the result of a
reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372
S.E.2d 523, 527 (1988).
We recognize that the evidence to which defendant objects
was necessarily prejudicial to defendant. “Most evidence tends
to prejudice the party against whom it is offered.” State v.
Braxton, 352 N.C. 158, 196, 531 S.E.2d 428, 450 (2000). But the
question under Rule 403 is not merely whether evidence is
prejudicial, but whether the trial court has balanced the
probative value of the evidence with any unfair prejudice it
might cause. Beckelheimer, 366 N.C. at 130, 726 S.E.2d at 158.
In the instant case, there was no unfair prejudice to defendant.
The trial court admitted the evidence for a limited purpose,
permitted by Rule 404(b), and carefully explained that purpose
to both the jury and defendant. We hold that the trial court
did not abuse its discretion in admitting this evidence pursuant
to Rule 404(b) of the North Carolina Rules of Evidence.
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This argument is without merit.
NO ERROR IN PART, DISMISSED IN PART.
Judge GEER concurs.
Judge HUNTER, Robert N., Jr. concurred prior to 6 September
2014.
Report per Rule 30(e).