State v. Hefner

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-435

Filed 06 June 2023

Jackson County, Nos. 18 CRS 52362; 19 CRS 393

STATE OF NORTH CAROLINA

v.

RICHARD LEE HEFNER

Appeal by Defendant from judgment entered 28 May 2021 by Judge Thomas

H. Lock in Jackson County Superior Court. Heard in the Court of Appeals 29

November 2022.

Attorney General Joshua H. Stein, by Assistant Attorney General Nicholas R.

Sanders, for the State.

Appellate Defender Glenn Gerding by Assistant Appellate Defender Katherine

Jane Allen, for Defendant.

WOOD, Judge.

Richard Hefner (“Defendant”) appeals from a judgment entered 28 May 2021

after being sentenced as a habitual felon. Based upon our reasoning below, we find

no error in sentencing.

I. Factual and Procedural Background

On the evening of 29 December 2018, Defendant and his girlfriend, Ms. Jones,

arrived at a Walmart in Sylva, North Carolina, with no items in their possession.

The couple made their way back to the electronics section of the store and began

STATE V. HEFNER

Opinion of the Court

looking at televisions. Defendant placed the television, a 43-inch Hisense valued at

$278.00, in their shopping cart. When the television was placed into the shopping

cart, an anti-theft device known as “spider-wire” was still on the device. Once the

television was placed in the shopping cart, the couple proceeded to the front of the

store. Briefly separating, Ms. Jones pushed the television through a closed cash

register while Defendant walked through self-checkout. The two then met again at

the exit. When asked by a store greeter to provide the receipt for the television,

Defendant stated that they had attempted to return the device but were denied a

refund. Defendant and Ms. Jones left Walmart with the television, placing the device

in their vehicle. After Defendant and Ms. Jones left with the television, spider-wire

was discovered in a toy aisle the two had walked down before leaving the store.

Subsequently, Defendant was arrested and Defendant was indicted by a grand

jury on 1 July 2019 for felony larceny and possession of stolen goods. On this same

day, the State obtained an indictment against Defendant charging him with attaining

habitual felon status. On 8 December 2020, the State gave notice of its intent to seek

an aggravated sentence against Defendant based on four aggravating factors:

Defendant was joined with more than one person in committing the offense and was

not charged with committing a conspiracy; Defendant committed the offense while on

pretrial release on another charge; Defendant has been found by a North Carolina

court to be in willful violation of the conditions of probation imposed pursuant to a

suspended sentence; and the offense committed was during the time in which

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Defendant was on supervised or unsupervised probation, parole, or post-release

supervision.

On 15 March 2021, the State obtained a superseding indictment on the

attaining habitual felon status charge. The indictment alleged the following

predicate felonies: (1) the felony of grand larceny in violation of South Carolina Code

of Laws Section 16-13-30 which Defendant committed on 27 August 2005 and of

which he was convicted on 25 October 2005; (2) the felony of possession of a stolen

motor vehicle in violation of N.C. Gen. Stat. § 20-106 which Defendant committed on

5 November 2009 and of which he was convicted on 28 April 2010; and (3) the felony

of possession of methamphetamine in violation of N.C. Gen. Stat. § 90-95(a)(3) which

Defendant committed on 18 October 2016 and of which he was convicted on 3 July

2017.

Defendant was tried during the 24 May 2021 Criminal Session of Jackson

County Superior Court and appeared pro se with appointed stand-by counsel,

although he elected to be represented by counsel during one day of the jury trial.

During the trial, the State called as its witness Mr. Kilby, the loss prevention

employee for Walmart. Mr. Kilby testified that an hour before Defendant and Ms.

Jones arrived at the store, he had inspected the televisions to ensure all of these

devices were secured in spider-wire. Mr. Kilby recalled that when he observed

Defendant and Ms. Jones walk towards the store’s exit, he noticed that the television

in their shopping cart was missing its spider-wire. Mr. Kilby confirmed that no 43-

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Opinion of the Court

inch television had been purchased while Defendant and Ms. Jones were present in

the store.

Testifying on his own behalf, Defendant stated that on the day in question, Ms.

Jones told him she had purchased a television online and needed to pick it up at

Walmart. Defendant testified that when they arrived at Walmart, they located the

electronics section, and he placed the television in their shopping cart. According to

Defendant, he then went to the bathroom. Once he returned, Defendant testified that

he and Ms. Jones began arguing over the television purchase, at which point Ms.

Jones decided to return the item. Defendant attempted to return the television

without a receipt at the Customer Service desk but was told it must be returned at

the Electronics Department. Defendant further testified that Ms. Jones then

changed her mind and elected to keep the television, and the couple moved towards

the store’s exit. Defendant stated that when they left, he showed the receipt of the

television purchase to the Walmart greeter.

On 27 May 2021, the jury found Defendant guilty of felony larceny and felony

possession of stolen goods. During the habitual felon phase of trial, the State

introduced the following evidence of the South Carolina conviction: the arrest

warrant, indictment, and judgment for grand larceny. The State called Jackson

County Assistant Clerk Stevie Bradley to authenticate the exhibits for Defendant’s

three predicate felony convictions. Ms. Bradley testified that the South Carolina

judgment reflected that “[t]he crime is grand larceny.”

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During the charge conference for the habitual felon trial, the State noted that

the South Carolina judgment for grand larceny did not explicitly state that the charge

was a felony, but the South Carolina statute in effect at the time Defendant

committed the crime identified the offense as a felony, and this offense is

substantially similar to North Carolina’s offense of felony larceny. Further, the State

argued that the question of whether the South Carolina conviction was a felony or a

misdemeanor was a question of law, not a question of fact for the jury. The State also

requested that the trial court replace the word “felony” with “crime” when giving the

pattern jury instruction for habitual felon status, N.C.P.I.–Crim. 203.10, as it related

to the South Carolina felony.

Defendant objected during the charge conference and stated: “Yeah, I just

would like to say if it doesn’t state in the actual code itself it’s not a felony, I would

like for it to stay the same, it’s not a felony.” Defendant’s objection was overruled.

The trial court concluded that the South Carolina conviction was a felony and agreed

to instruct the jury as requested. The trial court instructed the jury as follows:

For you to find the defendant guilty of being a habitual

felon, the State must prove three things beyond a

reasonable doubt. First, that on October 25, 2005, the

defendant in the Court of General Sessions for Cherokee

County, South Carolina, was convicted of the crime of

grand larceny that was committed on August 27th, 2005,

in violation of the law of the State of South Carolina.

On 28 May 2021, the jury found Defendant guilty of attaining habitual felon status.

On this same day, Defendant admitted to the existence of two aggravating factors

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Opinion of the Court

and an additional record point for purposes of sentencing; in exchange, the State

dismissed other pending charges. The trial court arrested judgment on the possession

of stolen goods conviction. Additionally, the trial court found the existence of two

aggravating factors, found Defendant to have 16 prior record points, and a prior

record level of V. Defendant was sentenced in the aggravated range of 120-156

months incarceration. Defendant gave oral notice of appeal in open court.

II. Analysis

On appeal, Defendant challenges his habitual felon status based upon his 2005

South Carolina conviction, arguing that it “cannot constitute a predicate conviction

for habitual felon purposes because, after June of 2010, the offense charged in the

South Carolina indictment is no longer a felony in South Carolina.” Based upon this

alleged error, Defendant argues that (1) the trial court erred in its instruction to the

jury on habitual felon status; (2) there was insufficient evidence to convict him of

attaining habitual felon status; and (3) the indictment charging him with attaining

habitual felon status was fatally defective. We review each of these arguments in

turn.

A. Jury Instructions.

First, Defendant argues that the trial court “deprived the jury of its fact-

finding responsibilities by failing to instruct the jury that it had to determine whether

he had been convicted of an offense which was a felony in South Carolina at the

relevant time.” Defendant contends that because the jury was instructed that they

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Opinion of the Court

could find Defendant had attained habitual felon status if it found he was convicted

of an offense which was a “crime” in South Carolina, not every essential element of

the charged habitual felon status was submitted to the jury. Defendant further

argues that since the “2005 South Carolina indictment obtained against [him] alleged

conduct which was no longer a felony under South Carolina law in 2018” – the time

period which Defendant committed the criminal conduct the State sought to

habitualize – “the omission of this essential element was not harmless beyond a

reasonable doubt.” We disagree.

Whether the trial court erred in instructing the jury over the defendant’s

objection is a question of law reviewed de novo. State v. Osorio, 196 N.C. App. 458,

466, 675 S.E.2d 144, 149 (2009). Pursuant to N.C. Gen. Stat. § 14-7.1, a defendant

who has been convicted of or pleaded guilty to three predicate felony offenses in any

federal or state court “is declared to be [a] habitual felon and may be charged as a

status offender[.]” N.C. Gen. Stat. § 14-7.1(a). A felony includes the following: (1) a

felony in North Carolina; (2) an “offense that is a felony under the laws of another

state or sovereign that is substantially similar to an offense that is a felony in North

Carolina” regardless of the sentence imposed; (3) an “offense that is a crime under

the laws of another state or sovereign that does not classify any crimes as felonies”

provided the offense meets several enumerated requirements; and (4) an “offense that

is a felony under federal law[,]” excluding certain offenses related to intoxicating

liquors. N.C. Gen. Stat. § 14-7.1(b)(1)–(4).

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On the issue of whether the jury should have determined that the South

Carolina grand larceny conviction was a felony, the State argues, “[w]hile the

question of whether a conviction under an out-of-state statute is substantially similar

to an offense under North Carolina statutes is a question of law to be resolved by the

trial court, whether a prior out-of-state conviction exists and whether it is a felony

are questions of fact.” However, the State makes a distinction that in this case, the

“ultimate inquiry, is whether the jury was properly instructed and could determine

whether the offense was a felony.” We agree with this distinction.

The relevant statute, N.C. Gen. Stat. § 14-7.1 was amended in 2017 to include

a subsection which addressed jurisdictions, such as New Jersey1, that do not

distinguish between felonies or misdemeanors. 2017 N.C. Sess. Law 176, § 2(a) (“S.B.

384”). In jurisdictions which do not “classify any crimes as felonies,” the amended

statute provides the mechanism whereby convictions from those other jurisdictions

can be treated as predicate felony convictions for attaining the status of habitual felon

in North Carolina. N.C. Gen. Stat. § 14-7.1(b)(3). As a result of the N.C. Gen. Stat.

§ 14-7.1 amendment, the pattern jury instruction for habitual felon was also amended

in 2019 to reflect this change to the statute. In keeping with the amended statute,

1 It is true that the New Jersey criminal code does not use the term

“felony.” State v. Smith, 181 A.2d 761, 767 (N.J. 1962), cert. denied,

374 U.S. 835, 83 S. Ct. 1879, 10 [L. Ed.] 2d 1055 (1963). Instead, all

crimes are classified as a crime of the first, second, third, or fourth

degree. N.J. Stat. Ann. § 2C:43-1 (2011).

State v. Hogan, 234 N.C. App. 218, 226-27, 758 S.E.2d 465, 472 (2014).

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Opinion of the Court

the amended patterned jury instruction provides the option to use “crime” instead of

“felony” language, such that it reads:

For you to find the defendant guilty of being a habitual

felon, the State must prove three things beyond a

reasonable doubt:

First, that on (name date) the defendant, in (name court)

[was convicted of] [pled guilty to] the [felony] [crime] of

(name felony or crime), that was committed on (name date)

in violation of the law of the [State of North Carolina]

[State of (name other state)] [United States].

N.C.P.I.-Crim. 203.10. According to Defendant, without citing case law or any other

authority, the option to use “crime” instead of “felony” is only “applicable when the

jurisdiction from which the predicate conviction was obtained does not classify any

crimes as felonies and the conviction cannot thus be identified as a felony in the jury

instructions.” In opposition, the State argues that the amended pattern jury

instruction for habitual felon status gives the option of using either “felony” or “crime”

as language to indicate predicate offenses, and that “this Court has not held that the

use of ‘crime’ in other contexts constitutes error.”

An error in a jury instruction is prejudicial and requires a new trial only if a

defendant meets his or her burden of establishing that “there is a reasonable

possibility that, had the error in question not been committed, a different result

would have been reached at the trial out of which the appeal arises.” N.C. Gen. Stat.

§ 15A-1443(a). Assuming arguendo that the trial court’s use of the word “crime” to

instruct the jury on the charge of habitual felon was erroneous, we believe that the

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Opinion of the Court

jury could still determine that Defendant’s earlier South Carolina predicate offense

constituted a felony under the applicable statute, so that there is not a reasonable

possibility that the jury would have reached a different result. At trial, the State

presented evidence showing that Defendant was convicted in 2005 of a felony – grand

larceny – under South Carolina law.

In 2005, the relevant South Carolina statute stated:

(A) Simple larceny of any article of goods, choses in action,

bank bills, bills receivable, chattels, or other article of

personalty of which by law larceny may be committed, or of

any fixture, part, or product of the soil severed from the soil

by an unlawful act, or has a value of one thousand dollars

or less, is petit larceny, a misdemeanor, triable in the

magistrate’s court. Upon conviction, the person must be

fined or imprisoned not more than is permitted by law

without presentment or indictment by the grand jury.

(B) Larceny of goods, chattels, instruments, or other

personalty valued in excess of one thousand dollars is

grand larceny. Upon conviction, the person is guilty of a

felony and must be fined in the discretion of the court or

imprisoned not more than:

(1) five years if the value of the personalty is more than one

thousand dollars but less than five thousand dollars;

(2) ten years if the value of the personalty is five thousand

dollars or more.

S.C. Code Ann. § 16-13-30 (2005). The statute distinguished between petit larceny

and grand larceny and set grand larceny as larceny of goods valued in excess of

$1,000.00. In 2010, the South Carolina General Assembly amended the above statute

to change the requisite monetary amount from $1,000.00 to $2,000.00. S.C. Code

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Ann. § 16-13-30 (2010).

However, Defendant’s sentence and the incidents of his punishments are

governed by statutes in effect at the time the crimes were committed. See Weaver v.

Graham, 450 U.S. 24, 28, 101 S. Ct. 960, 964, 67 L. Ed. 2d 17, 22 (1981). Thus, the

older version of the statute was in effect at the time Defendant committed the grand

larceny crime and he had been convicted and sentenced already by the time of the

new 2010 Amendment. Moreover, the relevant 2010 changes to S.C. Code Ann. § 16-

13-30, via the session law, also included a savings clause which provided that the

“amendment to § 16-13-30 does not affect liability incurred under the prior version of

the statute.” State v. Brown, 402 S.C. 119, 740 S.E.2d 493, 497 (S.C. 2013). While

the monetary amount required to establish grand larceny was raised in an

amendment five years after Defendant’s conviction, the 2010 amendment did not

change the classification of grand larceny as a felony. We, therefore, hold that

because Defendant’s 2005 South Carolina conviction for grand larceny constituted a

felony during the time in which the offense was committed and was not reclassified

by a later statutory amendment, it serves as a valid predicate conviction for

Defendant attaining habitual felon status.

B. Attainment of habitual felon status.

Next, Defendant argues the State failed to prove Defendant attained habitual

felon status because the State did not put on sufficient evidence as to each element

of the offense. Referencing previous contentions made in his first issue on appeal,

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Defendant again argues that “the State offered no evidence to prove to the jury

beyond a reasonable doubt that [his] 2005 South Carolina conviction for grand

larceny is a felony under the laws of South Carolina.”

Defendant acknowledges in his brief that at trial, he did not move to dismiss

the charge for insufficient evidence when the State rested and at the close of evidence;

therefore, his insufficiency claim was not preserved for appellate review pursuant to

Rule 10 of our Rules of Appellate Procedure. N.C. R. App. P. 10. In turn, Defendant

requests this Court to invoke Rule 2 of our Rules of Appellate Procedure to review the

merits of his claim. In our discretion and in order to prevent manifest injustice to

Defendant, we invoke Rule 2 to reach Defendant’s raised issue. State v. Batchelor,

190 N.C. App. 369, 378, 660 S.E.2d 158, 164 (2008).

In this case, the State presented substantial evidence of Defendant’s felony

conviction for grand larceny in South Carolina. During the trial, the State introduced

into evidence a certified copy of an indictment for the South Carolina offense alleging

the following:

That [Defendant] did in Cherokee County, on or about

August 26, 2005, with the intent to permanently deprive

the owner, take and carry away diamond ring from her

1994 Honda Accord valued at more than one thousand

dollars, belonging to Priscilla Smith, in violation of 16-13-

30 Code of Laws of South Carolina, 1976, as amended.

The State also admitted a copy of the judgment for the above offense which shows

that Defendant pled guilty to grand larceny and that this offense is “in violation of §

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Opinion of the Court

16-13-30 of the S.C. Code of Laws[.]” Thus, the indictment listed the elements of

grand larceny and the judgment described the offense as grand larceny, and together,

these court records established the statute which was violated. As we have

determined prior, the crime charged in South Carolina against Defendant constitutes

a felony under the laws of South Carolina. Hence, Defendant’s previous felony

conviction serves as a valid predicate offense for the sentencing as a habitual felon.

This offense was a felony because “grand larceny” is a felony under this statute.

Based upon the record before us, the State presented sufficient evidence to

demonstrate that Defendant’s South Carolina grand larceny conviction was a

predicate felony offense for his attaining habitual felon status.

C. Habitual Felon Indictment.

Finally, Defendant argues that his habitual felon indictment was fatally

defective because the indictment failed to allege three predicate felony convictions.

Defendant continues to point to the 2010 amendment to South Carolina statute § 16-

13-30 to argue that he is no longer charged with a crime that is a felony in South

Carolina, so that the previous conviction does not serve as a valid predicate conviction

for habitual felon purposes. According to Defendant, as a result of this invalid

predicate offense, the indictment “failed to allege the essential elements of habitual

felon status, rendering the indictment fatally defective and legally insufficient to

confer jurisdiction upon the trial court.” Thus, Defendant argues that the trial court

erred in trying him for attaining habitual felon status and entering judgment and

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Opinion of the Court

commitment against him on the habitual felon indictment. We disagree.

This Court reviews de novo the sufficiency of an indictment. State v. White,

372 N.C. 248, 250, 827 S.E.2d 80, 82 (2019). An indictment “is sufficient in form for

all intents and purposes if it expresses the charge against the defendant in a plain,

intelligible, and explicit manner[.]” N.C. Gen. Stat. § 15-153. For a habitual felon

status indictment, N.C. Gen. Stat. § 14-7.3 provides:

[a]n indictment which charges a person with being [a]

habitual felon must set forth the date that prior felony

offenses were committed, the name of the state or other

sovereign against whom said felony offenses were

committed, the dates that pleas of guilty were entered to or

convictions returned in said felony offenses, and the

identity of the court wherein said pleas or convictions took

place.

N.C. Gen. Stat. § 14-7.3.

In this case, Defendant’s habitual felon status indictment did not fail to charge

an essential element as it related to the South Carolina conviction. The indictment

clearly alleged the prior felony; the date the prior felony was committed; the name of

the state against whom the felony was committed; the date that conviction was

returned for the felony; and the identity of the court wherein the conviction took

place. For the reasons discussed above, the evidence further established that

Defendant’s 2005 conviction of grand larceny serves as a valid predicate felony

offense. The habitual felon indictment was therefore not fatally defective, because it

laid out all essential elements of the offense, particularly that of the South Carolina

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predicate conviction. See State v. Briggs, 137 N.C. App. 125, 131, 526 S.E.2d 678, 682

(2000). Therefore, Defendant’s argument is overruled.

III. Conclusion

We hold Defendant received a fair trial, free from prejudicial error, and find no

error in sentencing.

NO ERROR.

Judges ZACHARY and GORE concur.

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