An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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
C a r o l i n a R u l e s o f A p p e l l a t e P r o c e d u r e .
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-989
Filed: 17 February 2015
STATE OF NORTH CAROLINA
Cabarrus County
v.
Nos. 11 CRS 2421, 3027
CEDRIC DEVON YOUNG
Appeal by defendant from judgment entered 24 April 2014 by Judge
Christopher W. Bragg in Cabarrus County Superior Court. Heard in the Court of
Appeals 4 February 2015.
Attorney General Roy Cooper, by Assistant Attorney General Lora C. Cubbage,
for the State.
Bryan Gates for defendant-appellant.
INMAN, Judge.
Cedric Devon Young (“defendant”) appeals from judgment entered after a jury
convicted him of felony larceny from a merchant. Defendant’s sole argument on
appeal is that the trial court erred by admitting evidence of a similar crime allegedly
committed by defendant, in violation of Rule 404(b) of the North Carolina Rules of
Evidence.
After careful review, we find no prejudicial error.
STATE V. YOUNG
Opinion of the Court
Background
The following evidence was presented at trial: On 24 March 2010, Chase
Morgan (“Morgan”), a loss prevention employee at Burlington Coat Factory in
Concord, noticed two male subjects in the men’s department, one of whom Morgan
identified as defendant. Through the store’s video security camera, Morgan saw the
two men remove tags and sensors from pieces of merchandise, place the removed tags
and censors in the pockets of other articles of clothing in the store, then conceal the
pieces of clothing from which they had removed the tags and censors. Morgan
contacted the Concord Police Department to report a larceny in progress. After seeing
the two men leave the store, Morgan examined merchandise in that area and verified
that security sensors had been cut and placed into pockets of jeans in the men’s
department. When the police officers arrived at the scene, Morgan identified
defendant and another man as the two perpetrators. Although the other man
attempted to flee, officers were able to apprehend both individuals. The officers
searched defendant and found that he was concealing two shirts, two pairs of shorts,
a hat, and a wire-cutting tool. Morgan testified that the shirts would have been
affixed with security censors in the store, but the censors on the shirts concealed by
defendant had been removed. The total value of the goods recovered from defendant
was approximately $180.00.
The State also presented testimony from Deron Finney (“Finney”), another loss
prevention agent, who testified that he caught defendant stealing articles of clothing
-2-
STATE V. YOUNG
Opinion of the Court
from a Hollister clothing store at the Four Seasons Mall in Greensboro on 27
November 2012. Finney testified that he saw defendant and another man conceal
merchandise in the women’s department of the store. When Finney and other
security personnel attempted to apprehend defendant, defendant ran through an
emergency exit. Ultimately Finney and others were able to wrestle defendant to the
ground. Finney recovered articles of clothing that defendant attempted to discard
while being escorted back to the store, which Finney testified normally would have
been equipped with security sensors, but the sensors had been removed.
Defendant objected to the admission of Finney’s testimony primarily on the
ground that the two-and-a-half year difference in time between the alleged larceny at
the Burling Coat Factory and the Hollister store was not close enough to support the
State’s argument that this evidence could be used to show modus operandi, lack of
mistake, and a common scheme or plan. The trial court admitted the testimony over
defendant’s objection, finding the following similarities between the two incidents: (1)
both offenses occurred in large malls; (2) defendant acted with an accomplice in both
instances; (3) each act involved larceny of clothing; (4) each act involved removal of
an antishoplifting or inventory control device; (5) each act involved concealment of
clothing on the person of defendant; and (6) each act occurred outside defendant’s
home county of Forsyth.
The jury convicted defendant of larceny from a merchant, and defendant pled
guilty to having attained the status of an habitual felon. The trial court sentenced
-3-
STATE V. YOUNG
Opinion of the Court
defendant to 110 to 141 months imprisonment. Defendant gave notice of appeal in
open court.
Discussion
Defendant’s sole argument on appeal is that the trial court erred by allowing
Finney to testify regarding the alleged larceny committed at Hollister in 2012. We
hold that no prejudicial error occurred.
“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).” State
v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012). A trial court’s error
in admitting evidence that should have been excluded under Rule 404(b) warrants a
new trial only where the defendant demonstrates prejudice—that, absent the trial
court’s mistake, there was a reasonable possibility that the jury would have reached
a different outcome. N.C. Gen. Stat. § 15A-1443 (2013); see, e.g., State v. Morgan, 315
N.C. 626, 640, 340 S.E.2d 84, 93 (1986) (“Although we find that it was error to admit
the extrinsic conduct evidence pursuant to Rule 404(b) . . . we hold that there is no
reasonable possibility that, had the error in question not been committed, a different
result would have been reached at trial.” (citation and quotation marks omitted)).
Here, defendant contends that the trial court erred by admitting Finney’s
testimony regarding the alleged larceny at the Hollister in 2012 because the
-4-
STATE V. YOUNG
Opinion of the Court
similarities identified by the trial court between that incident and the underlying
crime are generic features of any larceny from a merchant and the incidents were too
remote in time to satisfy the requirement of temporal proximity.
Even assuming arguendo that the trial court erred by admitting Finney’s
testimony, defendant has failed to carry his burden of demonstrating prejudice. “The
essential elements of larceny are 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
permanently deprive the owner of the property.” State v. Coats, 74 N.C. App. 110,
112, 327 S.E.2d 298, 300 (1985). Under N.C. Gen. Stat. § 14-72.11 (2013), it is a Class
H felony to commit larceny against a merchant by “removing, destroying, or
deactivating a component of an antishoplifting or inventory control device to prevent
the activation of any antishoplifting or inventory control device.”
The State presented overwhelming evidence that defendant committed the
charged crime of larceny from a merchant against Burlington Coat Factory.
Specifically, the undisputed evidence at trial showed that: (1) defendant was seen by
Morgan and captured on camera removing antishoplifting devices from articles of
clothing in the men’s department at Burlington Coat Factory; (2) security censors had
been removed from articles of clothing and placed into the pockets of jeans in the
men’s department; (3) security footage captured defendant and his accomplice
attempting to leave the store with the concealed merchandise without paying; (4)
officers recovered articles of clothing on defendant’s person that Morgan testified
-5-
STATE V. YOUNG
Opinion of the Court
normally would have been equipped with security censors, but the sensors were
missing; and (5) officers found a wire-cutting tool in defendant’s front right pocket.
In light of this evidence, defendant has failed to demonstrate a reasonable
possibility that, but for the admission of Finney’s testimony, the jury would have
reached a different result. See State v. LePage, 204 N.C. App. 37, 43-44, 693 S.E.2d
157, 162 (2010) (finding no prejudicial error where the trial court’s allegedly
erroneous admission of evidence under Rule 404(b) would not have affected the jury’s
verdict in light of overwhelming evidence of guilt).
Conclusion
For the foregoing reasons, we hold that the trial court’s admission of Finney’s
testimony did not amount to prejudicial error.
NO PREJUDICIAL ERROR.
Judge DIETZ concurs.
Judge STEELMAN concurs in result by separate opinion.
Report per Rule 30(e).
No. COA14-989 – State v. Young
Judge STEELMAN, concurring in the result.
-6-
STATE V. YOUNG
STEELMAN, J., concurring
I would clearly hold that the learned trial judge did not err in admitting
evidence pursuant to Rule 404(b) of the North Carolina Rules of Evidence.
-7-
State v. Young
Combined Opinion