About a year since the COVID-19 pandemic began, an increasing number of businesses have transitioned to touchless and contactless payments, with the use of cash taking a backseat to debit and credit cards. Not coincidentally, with increased use of financial cards comes increased financial card theft. Continue reading
Tag Archives: larceny
The “Single Taking” Rule
When a defendant steals personal property that belonged to someone who recently died, who should be alleged as the victim in the criminal pleading? I’ve been asked this question several times, so I thought I would try to answer it here on the blog. Continue reading →
Theft, Possession, and Hendricksen
Defendant commits an armed robbery in county A, obtaining stolen goods that he transports to county B. May the defendant be prosecuted and punished for armed robbery in county A and be separately prosecuted and punished for possession of stolen goods in county B?
The court of appeals recently decided that an indictment alleging that a defendant stole some shirts from “Belk’s Department Stores, an entity capable of owning property,” did not sufficiently identify the victim as an entity capable of owning property. State v. Brawley, __ N.C. App. __, __ S.E.2d __, 2017 WL 4632820 (Oct. 17, 2017). This post summarizes the decision, considers the possibility of further review, and explains how other states handle this issue. Continue reading →
Shoplifting and Larceny
I recently had occasion to think about the relationship between shoplifting and larceny. Continue reading →
The web has several stories about large retail stores banning people caught shoplifting from returning, sometimes for life, sometimes from all of the stores in the chain. Sometimes the incident prompting the ban goes to court, with the person convicted of shoplifting. Sometimes the store does not pursue criminal charges but rather has the person sign an agreement acknowledging that he or she is not permitted to come back. What happens if the person returns, reenters the store, and is caught shoplifting again? In some districts in North Carolina, the person is charged not with trespassing and shoplifting, both misdemeanors, but rather with felony breaking or entering under G.S. 14-54(a). I have reservations about whether the law supports this charge. Continue reading →
The Doctrine of Recent Possession
Recently a caller asked: Does the fact that the defendant was found in possession of goods five days after they were stolen create an inference that he stole them? The answer: It depends. Continue reading →
In some states, theft of an automobile is a felony regardless of the value of the vehicle. See, e.g., Fla. Stat. § 812.014. Not so in North Carolina. Motor vehicles don’t have any special status under our larceny statute, G.S. 14-72. Therefore, theft of an automobile is a misdemeanor unless the vehicle is worth more than $1,000, or the theft falls under one of the other felony provisions of G.S. 14-72(b).
In this post, I’ll summarize the appellate cases that consider whether there was sufficient evidence that a vehicle was worth more than $1,000.
No presumption that motor vehicles are worth more than $1,000. If the State presents no evidence of a vehicle’s value, that is insufficient to sustain a felony conviction. In other words, there’s no presumption that a motor vehicle is worth more than $1,000. State v. McRae, __ N.C. App. __, 752 S.E.2d 731 (2014) (reversing a conviction based on felony larceny of a vehicle because the State introduced no evidence of the vehicle’s value; the vehicle belonged to a high school student and the indictment alleged that it was worth $2500). Cf. In re Mecklenburg County, 191 N.C. App. 246 (2008) (vacating a juvenile adjudication based on an admission to felony larceny; while the juvenile acknowledged stealing a truck, the “prosecutor’s statement of facts does not contain any statement or evidence that the pickup truck was worth more than $1,000,” so there was no factual basis for the felony admission).
Evidence that an older vehicle is well-kept is not sufficient. In State v. Holland, 318 N.C. 602 (1986), the state supreme court found insufficient evidence of value where “the State offered no direct evidence of the [stolen] Cordoba’s value,” even though there was “evidence tending to show that the victim owned two automobiles and that the 1975 Chrysler Cordoba was his favorite one of which he took especially good care, always keeping it parked under a shed,” and “a picture of this automobile was exhibited to the jury for the purpose of establishing the location of the automobile when discovered after its theft.” Interesting aside: I checked Hemmings Motor News and a couple of other websites, and a 1975 Cordoba in good condition could be worth $10,000 today.
Evidence that a vehicle is shiny and new is sufficient. By contrast, in State v. Dobie, 2014 WL 3824257 (N.C. Ct. App. Aug. 5, 2014) (unpublished), the court of appeals ruled that there was sufficient evidence of felony larceny where photographs of the vehicle in question showed that it was a “late model BMW sedan that ha[d] no exterior defects.” The holding makes sense on the facts presented, but I wonder how far it extends. I have a previous-generation Toyota Camry that looks pretty good except for some scuffing on the trunk lid. Does that count? How about my wife’s minivan, which runs well but has several dents and is missing a hubcap?
The owner’s testimony regarding the vehicle’s value may be sufficient. The owner may testify to the value of a vehicle under State v. Huggins, 338 N.C. 494 (1994). But note State v. Haney, 28 N.C. App. 222 (1975), where the court made clear that value means fair market value, not the price at which the owner would be willing to sell the vehicle. The court suggested that testimony that owner would not sell a vehicle for less than $2000 was “[i]ncompetent,” though sufficient given that defendant did not object to it.
Evidence of the price the owner paid for the vehicle may be sufficient. Evidence of a recent sale above the threshold amount may be adequate. State v. Rascoe, 170 N.C. App. 198 (2005) (evidence of purchase price months or years before the theft may be sufficient evidence of value where there is no reason to believe that “extraordinarily rapid depreciation” had greatly reduced the vehicle’s value).
Blue book value may be sufficient. Finally, under State v. Dallas, 205 N.C. App. 216 (2010), the NADA Guide and similar references are admissible evidence on the value of a vehicle. I glanced at cases from other jurisdictions and it appears that other states generally agree. See, e.g., Walker v. Com., 704 S.E.2d 124 (Va. 2011) (rejecting Confrontation Clause argument because such guides are not testimonial); State v. Erickstad, 620 N.W.2d 136 (S.D. 2000) (collecting cases and ruling that such guides fall within the hearsay exception for market reports and commercial publications). This seems like a sure and simple course for the State in most cases.
On another topic, regular readers may have noticed that there was no post yesterday. I’m sorry. I was caught up in other matters and just didn’t get to it. We should be back on track now.
Larceny of a Motor Vehicle
There’s a popular video game — or really, series of video games — called Grand Theft Auto. And many states have a crime called grand theft auto, or have some other theft offense that is specific to motor vehicles. In fact, according to this handy chart from the National Conference of State Legislatures, it appears that at least half of all states have a vehicle theft crime. When I told a group of magistrates the other day that North Carolina doesn’t have such an offense, they gave me a collective look that said “we’re too polite to contradict you during class, but you’re hopelessly dim.” So I did a little poking around.
First of all, we really don’t have a separate vehicle theft offense. We have an unauthorized use of a vehicle offense, G.S. 14-72.2, and a crime for stealing gasoline, G.S. 14-72.5, and an offense covering the theft of certain motor vehicle parts, G.S. 14-72.8, and even a special offense for receiving or transferring a stolen vehicle, G.S. 20-106. But there is no distinct statutory offense for stealing a car. Motor vehicle thefts are prosecuted under the general larceny statute, G.S. 14-72, meaning that such a theft is generally a misdemeanor when the vehicle is worth less than $1000, and is a felony when the vehicle is worth more than $1000. [Update: a thoughtful reader pointed out that G.S. 20-106 also covers possession of a stolen vehicle, and it’s a felony regardless of value, meaning that a person who steals a car worth less than $1000 can virtually always be charged with a felony offense, even if not felony larceny.]
Nonetheless, it seems to be very common to speak of “larceny of a motor vehicle” as if it were a separate offense. Our appellate courts have used that description many, many times. Just in published cases in the last year, for example, there’s State v. Kidwell, __ N.C. App. __, 720 S.E.2d 795 (2012) (“[D]efendant was indicted for larceny of a motor vehicle.”); State v. Teague, __ N.C. App. __, 715 S.E.2d 919 (2011) (stating that the defendant was sentenced to “15 to 18 months imprisonment for the larceny of a motor vehicle conviction”); State v. Flaugher, __ N.C. App. __, 713 S.E.2d 576 (2011) (“[D]efendant was indicted for . . . larceny of a motor vehicle.”); and State v. Womack, __ N.C. App. __, 712 S.E.2d 193 (2011) (“At the habitual felon sentencing hearing, the State introduced certified copies of documents establishing Defendant’s convictions for larceny of a motor vehicle.”). I suspect that practicing lawyers, officers, and others also talk about larceny of a motor vehicle as if it were a distinct offense.
As far as I can tell, the reason for that is that the computer system used by magistrates to create charging documents in criminal cases has a separate form or option for larceny of a motor vehicle. So if an officer wants to arrest someone for stealing a TV, the magistrate will generate an arrest warrant that is simply captioned “larceny,” but if an officer wants to arrest someone for stealing a car, the magistrate will generate an arrest warrant that is captioned “larceny of a motor vehicle.” Even though both warrants will refer to G.S. 14-72, this practice creates the perception that there is a separate crime called larceny of a motor vehicle. A quick glance at recent AOC data suggests that felony larceny of a motor vehicle is charged a few thousand times per year, while misdemeanor larceny of a motor vehicle is charged a few hundred times per year. Why the computer system creates this artificial distinction, I don’t know. One thoughtful person suggested that it might facilitate the collection of data on stolen vehicles, which might be of interest to the DMV and others.
In any event, I don’t think there’s any harm to the practice. I just thought it was interesting and figured that others might, too.
Larceny: Spouse vs. Spouse Edition
I was recently asked whether one spouse can properly be charged with larceny for stealing joint property from the other spouse. Apparently, this question comes up frequently with separated spouses. For example, assume that Harry and Sally are separated. Sally lives at the house they formerly shared, and Harry lives in an apartment nearby. If Harry comes to the house one day while Sally’s at work, and takes the BBQ grill from the back yard, has he committed a larceny?
Generally, the answer is no. If the BBQ grill is joint property, not Sally’s family heirloom that she had way before she met Harry, Harry has just as much right to it as Sally does, and if he wants to take it, he can. It isn’t a larceny because it isn’t the property of another. But there are some interesting caveats to that general rule.
1. Work-arounds. Sally can tell Harry, “don’t come on this property ever again,” and then Harry’s trespassing if he comes to get the BBQ grill. And even absent such an instruction, if Harry goes into the house, there’s likely a breaking or entering charge. So there are some things that Sally, as a practical matter, can do to keep Harry’s paws off the grill.
2. Separation agreements. If there’s a separation agreement in place that says that Sally gets the grill, then Harry’s definitely committing a larceny if he takes it. Cf. State v. Lindley, 81 N.C. App. 490 (1986).
3. Not playing nice. The most interesting and controversial exception is what I hereby term the “not playing nice” exception. If Harry’s not just taking the BBQ grill to use it — which, again, he’s entitled to do just as much as Sally is — but is taking the BBQ grill intending to (1) make it his own, exclusively, and thereby deprive Sally of her interest in it, or (2) destroy it in bad faith, several courts have sustained criminal charges. See, e.g., People v. Llamas, 51 Cal.App.4th 1729 (Cal. Ct. App. 4 Dist. 1997) (when one spouse “tak[es] . . . [property], even with the intent to temporarily deprive [the other] spouse of its use, the actor does not exceed his or her property right and the problem is properly viewed as a domestic and not a criminal one,” but when the spouse intends permanently to deprive the other spouse of the property, a crime has been committed); LaParle v. State, 957 P.2d 330 (Alaska Ct. App. 1998) (recognizing that “[i]n most instances, both spouses have equal right to possess, use, or dispose of marital property. Thus, one spouse’s unilateral decision to draw funds from a joint checking account or to give away or sell a marital possession normally will not constitute theft,” but finding otherwise where a husband secreted the contents of a marital checking account in anticipation of a divorce).
I confess that the cited cases aren’t from North Carolina. I don’t know of an in-state case on point, but nothing in the cited cases depends on distinctive features of the forum states’ laws. I suspect that in sufficiently compelling circumstances our appellate courts would rule similarly, though my impression is that some of my colleagues disagree. Even if I’m right, the exact contours of the “not playing nice” exception are unclear. If one separated spouse joins an ascetic cult and gives all the couple’s joint property to charity, is that OK? Time will tell.