State v. Miller
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-216 NORTH CAROLINA COURT OF APPEALS Filed: 5 November 2013 STATE OF NORTH CAROLINA v. Duplin County Nos. 10 CRS 50519-20 12 CRS 51263 MCKENZIE KEYELLE MILLER Appeal by defendant from judgment entered 16 October 2012 by Judge John E. Nobles, Jr. in Duplin County Superior Court. Heard in the Court of Appeals 28 August 2013. Attorney General Roy Cooper, by Assistant Attorney General Elizabeth A. Fisher, for the State. Michael J. Reece for defendant-appellant. HUNTER, Robert C., Judge. Defendant McKenzie Keyelle Miller ( defendant ) appeals from judgment sentencing him to 88-110 months imprisonment after being convicted on two counts of possession of a stolen motor vehicle and two counts of obtaining property by false pretenses. On appeal, defendant argues that the trial court erred by giving one instruction for two counts of obtaining property by false pretenses and not distinguishing between the two, thus denying -2defendant a unanimous jury verdict. After careful review, we find no error. Background Defendant was indicted in case numbers 10 CRS 50519 and 10 CRS 50520 for charges of larceny of a motor vehicle, possession of a stolen motor vehicle, obtaining pretenses, and misdemeanor larceny. property by false All charges stemmed from one incident where a 1992 Dodge van was stolen and sold to Duplin Auto Salvage and Recycling, LLC ( Duplin Auto Salvage ). Defendant was also charged in both cases with attaining habitual felon status. Before trial, however, the prosecutor dropped the charge for larceny of a motor vehicle. Defendant was also indicted in case number 12 CRS 51263 for charges of larceny of a motor vehicle, possession of a stolen motor vehicle, and obtaining property by false pretenses. charges stemmed from a second incident where a Sentra was stolen and sold to Duplin Auto Salvage. 1991 These Nissan Defendant was again charged in this case with attaining habitual felon status. The prosecution also dropped this charge for larceny of a motor vehicle before trial. All three cases against defendant were joined for trial on 15 October 2012. At trial, the prosecution presented evidence relating to the theft of both the 1992 Dodge van and the 1991 Nissan Sentra. Specifically, the prosecution presented evidence -3of two checks paid to defendant by Duplin Auto Salvage for the sales of both vehicles. Moreover, defendant stipulated that it was his signature on the back of both checks. The prosecution presented further evidence of an eye witness identification of defendant as the individual who sold both cars, as well as sales records containing defendant s identification information. Finally, the prosecution presented a recorded phone conversation wherein defendant admitted taking a car to the junk yard. Defendant put forth no evidence at trial. At the close of evidence, the parties reached an agreement on the proposed jury instructions. The trial court first instructed the jury on the law for both counts of possession of a stolen motor vehicle, differentiating between each count by vehicle make instruction and for model. two counts Next, of the trial obtaining court gave property by pretenses as follows: The defendant has been charged with obtaining property by false pretenses. For you to find the defendant guilty of this offense, the State must prove five things beyond a reasonable doubt: First, that the defendant representation to another. made a Second, that this representation was false. Third, that this representation calculated and intended to deceive. Fourth, that the victim was, in was fact, one false -4deceived by this representation. And, fifth, that the defendant thereby obtained or attempted to obtain property from the victim. The trial court further instructed the jury to remember the evidence and they must agree upon a unanimous verdict as to each charge. After the instructions were read, defendant responded in the negative when asked by the trial court if he had anything to add to the previous instructions. Both attorneys indicated they were satisfied with verdict sheets before they were sent back to the jury. the The trial court then presented the jury with three verdict sheets, one from each case. The first two verdict sheets were for case numbers 10 CRS 50519 and 10 CRS 50520 involving the 1992 Dodge van. Each of these verdict sheets contained only one count each; 10 CRS 50519 contained one count of possession of a stolen motor vehicle and 10 CRS 50520 contained one count of obtaining property by false pretenses. The third verdict sheet was for case number 12 CRS 51263 concerning the 1991 Nissan Sentra. This verdict sheet contained two counts, one for obtaining property by false pretenses and another for possession of a stolen motor vehicle. In total, there were three cases and four counts. During jury deliberation, the trial court received notice from the jury foreman there was confusion on the number of -5counts for possession of a stolen motor vehicle. The trial court, with agreement from both parties, allowed the jury to reenter the courtroom to address the confusion. The trial court learned the confusion stemmed from a typo in the verdict sheet and informed the jurors the count should read possession not possess of a stolen motor vehicle. The jurors were further instructed to recall the number of vehicles in the matter to determine the number of counts. The jury then signified their confusion was clarified and returned to deliberate. Seven minutes later, the jury returned a verdict of guilty on all four counts. One verdict sheet contained a scribbled-out mark next to not guilty for one count of obtaining property by false pretenses; the foreman wrote his scratched-out mark. [R. p. 83]. their previous verdict when polled. initials next to the All jurors later ratified [T2. p. 150]. Defendant then entered a negotiated plea for habitual felon status for all three cases and was sentenced to a minimum of 88 and maximum of 110 months convicted. in prison for the four counts in which he was Defendant timely appealed this verdict. Discussion I. Jury Unanimity Defendant argues he was denied a unanimous jury verdict when the trial court gave one instruction for, and failed to distinguish between, two separate counts of obtaining property -6by false pretenses. Specifically, defendant contends that without this information the jury could not know the specific count for which it was convicting him. We disagree. Defendant failed to object at trial that he was denied a unanimous jury verdict; however, [v]iolations of constitutional rights, such as the right to a unanimous verdict . . . are not waived by the failure to object at trial and may be raised for the first time on appeal. State v. Wiggins, 161 N.C. App. 583, 592, 589 S.E.2d 402, 409 (2003). The standard of review for alleged violations of constitutional rights is de novo. State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009), appeal dismissed and disc. review denied, 363 N.C. 857, 694 S.E.2d 766 (2010); see also Piedmont Triad Reg l Water Auth. v. Sumner Hills, Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001) ( [D]e novo review is ordinarily appropriate in cases where constitutional omitted). Therefore, rights we are review implicated. ) defendant s (citations argument he was by the denied a unanimous jury verdict de novo. No person shall be convicted of any unanimous verdict of a jury in open court. § 24. crime but N.C. Const. art. I, In all criminal cases the defendant has the right to be tried by a jury of 12 whose verdict must be unanimous. Gen. Stat. § 15A-1201 (2011). N.C. This Court has previously held that when the defendant presents a question of jury unanimity -7 we must examine instructions, the and verdict, the evidence the charge[s], to determine ambiguity as to unanimity has been removed. the whether jury any State v. Brewer, 171 N.C. App. 686, 692, 615 S.E.2d 360, 364 (2005), disc. review denied, 360 N.C. 484, 632 S.E.2d 493 (2006) (citation omitted); see also State v. Bates, 179 N.C. App. 628, 633, 634 S.E.2d 919, 922-23 (2006). Thus, to determine whether defendant was denied a unanimous jury verdict, we examine the following four factors: (1) the charges; (2) the evidence; (3) the jury instructions; and (4) the verdict. A. Factors (1) and (2): Charges and Evidence This Court has previously held [t]here is no risk of a lack of unanimity convicted of the where same the defendant number of offenses, supported that number of offenses. 693, 615 S.E.2d at 364. counts of obtaining for property obtaining presented into evidence. charged and with the of evidence offenses. charges put equals forth evidence Brewer, 171 N.C. App. at by false pretenses and was During defendant s trial, only two property by false pretenses were One incident involved a 1992 Dodge van and the other incident involved a 1991 Nissan Sentra. number and Here, defendant was charged with two convicted of two counts. incidents was the during number trial of Thus, the convictions supports that and the number of -8B. Factor (3): Jury Instructions When reviewing a trial court's charge to the jury, the instructions must be considered in their entirety. Davis, 321 N.C. 52, 59, 361 S.E.2d 724, 728 (1987). State v. This Court has held that the trial court may protect the defendant's right to a unanimous verdict by instructing the jury that they must be unanimous as to the particular defendant committed. criminal offense that the Brewer, 171 N.C. App. at 693, 615 S.E.2d at 364 (citation and quotation omitted). Here, the trial court gave one instruction for, and failed to distinguish between, both counts of obtaining property by false pretenses. The trial court, however, previously distinguished between the two incidents by the make and model of the vehicle in its instructions on both counts of possession of a stolen motor vehicle. The trial court further instructed the jury must that charged. its decision be unanimous as to each count Thus, the trial court s instructions, taken in their entirety, make it clear that the jury should have considered charges surrounding both the 1992 Dodge van and the 1991 Nissan Sentra and rendered a unanimous verdict as to each count charged. Furthermore, in the case of State v. Massey, 174 N.C. App. 216, 222, 621 S.E.2d 633, 637 (2005), rev d in part on other grounds, 361 N.C. 406, 646 S.E.2d 362 (2007), the defendant -9argued the trial court erred when it did not separately instruct the jury as to each count. This Court held that the trial court does not have to instruct on each count separately. 222, 621 S.E.2d at 638. court in property this by case false to Id. at Therefore, the failure of the trial instruct pretenses on each separately count does of not obtaining constitute error. C. Factor (4): Verdict Sheets This Court has ruled that where the verdict sheets . . . identified the . . . offenses only by the felony charged . . . and their respective case numbers . . . the verdict sheets did not lack the required degree of specificity needed for a unanimous verdict if they could be properly understood by the jury based on the evidence presented at trial. App. at 634, omitted). two 634 S.E.2d at 922 (internal Bates, 179 N.C. quotation Here, there were three verdict sheets. verdict sheets contained one count verdict sheet contained two counts. each and marks The first the third All three verdict sheets were distinguished by the case number listed at the top and the corresponding counts of each charge below. The jury was only presented with two incidents during the presentation of evidence in which obtaining property by false pretenses could have occurred; one incident involved the 1992 Dodge van and the other involved the 1991 Nissan Sentra. Accordingly, there can be no -10assignment of error with the verdict sheets in this case because they effectively allowed the jury to match each verdict of guilty with the specific crime charged. In addition to the four factors listed above, we also note the following: (1) when polled, all jurors ratified their verdict of guilty on all four counts; (2) the jury s confusion during deliberation did not concern the two counts for obtaining property by false pretenses and was quickly cleared up by the court; (3) after the confusion was cleared up, the jury needed only seven minutes to return its verdict; and (4) the jury foreman corrected his mistake by placing his initials next to the scribbled-out mark beside the option of not guilty of obtaining property by false pretenses. Based on the foregoing analysis, we find that defendant was not denied a unanimous jury verdict and the trial court committed no error in its instruction. II. Defendant s Motion to Dismiss Defendant listed as a proposed issue on appeal whether the trial court erred in denying his motion to dismiss at the close of the State s evidence. However, defendant does not address this on issue questions in not abandoned. his brief argued by appeal. Defendant in All his other brief issues are or deemed State v. Brooks, 204 N.C. App. 193, 195, 693 S.E.2d 204, 207 (2010). Since defendant did not present an issue in -11his brief concerning the motion to dismiss, it is abandoned on appeal. Conclusion In consideration of the foregoing analysis under the framework developed by this Court in Brewer and Bates combined with other factors of note, we find defendant was not denied a unanimous jury verdict. to defendant s We also find that any argument related motion to dismiss Accordingly, we find no error. NO ERROR. Judges GEER and McCULLOUGH concur. Report per Rule 30(e). has been abandoned.
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