An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. COA13-1086

NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

STATE OF NORTH CAROLINA

v. Wake County

No. 12 CRS 213765

ANTHONY JOHN SEXTON

Appeal by defendant from judgment entered 14 February 2013 

by Judge Michael J. O’Foghludha in Wake County Superior Court. 

Heard in the Court of Appeals 22 January 2013.

Roy Cooper, Attorney General, by Elizabeth A. Fisher, 

Assistant Attorney General, for the State.

Daniel F. Read for defendant-appellant.

DAVIS, Judge.

Anthony John Sexton (“Defendant”) appeals from his 

conviction for felonious larceny of a dog. On appeal, he argues 

that the trial court erred by (1) denying his motion to dismiss 

the charge against him for insufficient evidence; and (2) 

allowing testimony regarding his temper and use of profane 

language, his conduct towards one of the State’s witnesses, his 

physical appearance at the time of the subject incident, and his 
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conduct the day after the incident. After careful review, we 

conclude that Defendant received a fair trial free from error.

Factual Background

The State presented evidence at trial tending to establish 

the following facts: On 16 June 2012, Linwood Marshall (“Mr. 

Marshall”), Denise Marshall (“Mrs. Marshall”), and their 

children left for a weekend trip to the beach to celebrate 

Father’s Day. The Marshalls left their dog, Malibu, at their 

home in Youngsville, North Carolina, having previously arranged 

for Mrs. Marshall’s mother to visit the house and care for 

Malibu. When Mrs. Marshall’s mother visited the house to feed 

Malibu on 16 June 2012, she discovered that Malibu was not in 

her pen.

Upon returning home and discovering that Malibu was 

missing, Mr. Marshall searched the neighborhood for the dog. He 

learned that one of the neighborhood children had been walking 

Malibu, that the child had accidentally dropped her leash, and 

that Malibu then “took off.”

The same morning that Malibu was discovered to be missing, 

Richard Aleksic (“Mr. Aleksic”) — who was staying with his 

girlfriend, Charlene Dossett, in the residence next door to 

Defendant’s home — witnessed Defendant chasing Malibu through a 

wooded area near his house. Mr. Aleksic saw Defendant grab 

Malibu’s leash and say: “I got you now, you motherf——er. . . . 
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I’m going to take care of this f——ing sh—t once and for all.”

Approximately one month earlier, an altercation had 

occurred between Mrs. Marshall and Defendant when his dogs 

chased her while she was walking Malibu. When Mrs. Marshall 

confronted Defendant about his dogs’ behavior, Defendant 

responded: “[M]y dogs? Your dog comes over here all the time . 

. . [S]he was over here last week and I got a video of it.” 

After this incident, Mrs. Marshall did not walk Malibu by 

Defendant’s house anymore.

On 17 June 2012, Deputy B.J. Simmons (“Deputy Simmons”) of 

the Wake County Sheriff’s Office was on duty and received a call 

from dispatch to meet Mr. Marshall at his home regarding a

missing dog. After Deputy Simmons arrived, Mr. Marshall 

explained to him that Malibu was missing and that one of their 

neighbors had seen Defendant “grab what appeared to be their 

dog.” After gathering some information from Mr. Marshall, 

Deputy Simmons proceeded to knock on Defendant’s door, identify 

himself as a deputy sheriff, and inform Defendant that he was 

looking for the Marshalls’ dog. When Deputy Simmons told 

Defendant that Mr. Aleksic had seen him grab Malibu the previous 

day, Defendant replied that he had been at work that Saturday 

morning and that he did not know Mr. Aleksic.

Two days later, Mr. Aleksic was driving in his car and 

discovered that Defendant was following him. For approximately 
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twenty minutes, Defendant continued to follow Mr. Aleksic while 

making “obscene gestures, giving [him] the finger . . . [and] 

riding [his] bumper.” Mr. Aleksic called the Highway Patrol and 

was instructed to turn on his four-way flashers. Once Mr. 

Aleksic did so, Defendant stopped following him. Mr. Aleksic 

believed that Defendant’s actions were “retaliatory” and that 

Defendant was “trying to scare [him] or trying to run [him] off 

the road” because Mr. Aleksic “knew the situation” with Malibu.

On 7 August 2012, Defendant was indicted and charged with 

felonious larceny of a dog in violation of N.C. Gen. Stat. § 14-

81(a)(1). A jury trial was held beginning on 13 February 2013 

in Wake County Superior Court. The jury found Defendant guilty, 

and the trial court entered judgment on the jury’s verdict. The 

trial court sentenced Defendant to 6 to 17 months imprisonment, 

suspended the sentence, and placed Defendant on supervised 

probation for a period of 24 months. Defendant gave notice of 

appeal in open court.

Analysis

I. Denial of Motion to Dismiss

Defendant’s first argument on appeal is that the trial 

court erred in denying his motion to dismiss based on the

insufficiency of the evidence. Defendant argues that the 

evidence presented at trial raised only a “mere suspicion” of 

his guilt of the larceny of Malibu such that dismissal of the 
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charge was warranted. We disagree.

A trial court’s denial of a defendant’s motion to dismiss 

is reviewed de novo. State v. Smith, 186 N.C. App. 57, 62, 650 

S.E.2d 29, 33 (2007). When ruling on a motion to dismiss, “the 

trial court must determine whether there is substantial evidence 

(1) of each essential element of the offense charged and (2)

that defendant is the perpetrator of the offense.” State v. 

Bradshaw, 366 N.C. 90, 93, 728 S.E.2d 345, 347 (2012) (citation 

and quotation marks omitted). “Substantial evidence is such 

relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 

265 S.E.2d 164, 169 (1980).

In reviewing challenges to the sufficiency 

of evidence, we must view the evidence in 

the light most favorable to the State, 

giving the State the benefit of all 

reasonable inferences. Contradictions and 

discrepancies do not warrant dismissal of 

the case but are for the jury to resolve. 

The test for sufficiency of the evidence is 

the same whether the evidence is direct or 

circumstantial or both. Circumstantial 

evidence may withstand a motion to dismiss 

and support a conviction even when the 

evidence does not rule out every hypothesis 

of innocence.

State v. Fritsch, 351 N.C. 373, 378-79, 526 S.E.2d 451, 455, 

cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000) (citations 

and quotation marks omitted). “If there is any evidence tending 

to prove guilt or which reasonably leads to this conclusion as a 
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fairly logical and legitimate deduction, it is for the jury to 

say whether it is convinced beyond a reasonable doubt of 

defendant’s guilt.” State v. Franklin, 327 N.C. 162, 171-72, 

393 S.E.2d 781, 787 (1990).

To overcome a motion to dismiss a charge of larceny, the 

State must present substantial evidence 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 deprive the owner of 

the property permanently.” State v. Osborne, 149 N.C. App. 235, 

242-43, 562 S.E.2d 528, 534 (citation and quotation marks 

omitted), aff’d per curiam, 356 N.C. 424, 571 S.E.2d 584 (2002). 

Here, the State offered testimony from Mr. Aleksic that 

Defendant (1) ran after Malibu, chasing her through the wooded 

area near his house; (2) grabbed Malibu’s leash and pulled her 

back onto his property; and (3) shouted “I got you now, you 

motherf——er. . . . I’m going to take care of this f——ing sh—t 

once and for all” after he had grabbed Malibu’s leash.

The State’s evidence demonstrated that Defendant knew 

Malibu was the Marshalls’ dog and that the Marshalls had not 

given Defendant consent or permission to take Malibu. See State 

v. Moore, 46 N.C. App. 259, 262, 264 S.E.2d 899, 900 (1980) 

(concluding that person may be convicted of larceny when he 

finds and keeps lost property if “at the time he finds the 

property he knows or has reason to believe that he can ascertain 
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the owner of the property” (citation omitted)). The State 

offered circumstantial evidence of Defendant’s intent to 

permanently deprive the Marshalls of their dog through Mr. 

Aleksic’s testimony that he overheard Defendant state he was 

“going to take care of this f——ing sh—t once and for all” and 

the fact that Defendant never returned Malibu to the Marshalls.

Furthermore, the fact that Defendant followed Mr. Aleksic’s 

vehicle for approximately twenty minutes under these 

circumstances allowed the jury to infer that he was trying to 

intimidate Mr. Aleksic so as to prevent him from testifying 

against Defendant. See State v. Brockett, 185 N.C. App. 18, 26, 

647 S.E.2d 628, 635 (“Generally, an attempt by a defendant to 

intimidate a witness to affect the witness’s testimony is 

relevant and admissible to show the defendant’s awareness of his 

guilt.”), disc. review denied, 361 N.C. 697, 654 S.E.2d 483 

(2007).

Based on all of this evidence, a reasonable juror could 

have concluded that Defendant was guilty of taking and carrying 

away Malibu without the Marshalls’ consent and with the intent 

to permanently deprive them of their dog. Accordingly, we hold 

that the trial court did not err in denying Defendant’s motion 

to dismiss.

II. Admission of Evidence Concerning Defendant’s Conduct and 

Physical Appearance
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Defendant next asserts that the trial court committed plain 

error by admitting testimony relating to (1) his following Mr. 

Aleksic’s car for approximately twenty minutes; (2) his use of

profane language; (3) the “big shaggy beard” he had at the time 

of the incident and the fact that he shaved it prior to trial;

and (4) the fact that he was digging in his backyard with a 

tractor the day after Malibu was discovered to be missing.

Defendant argues that although “individually these irrelevant 

character attacks and arguments may not have risen to the level 

of reversible error, taken together they served to deprive 

[Defendant] of a fair trial.” Defendant acknowledges that he 

did not object to the introduction of this evidence at trial and 

is, therefore, limited to plain error review on appeal.

Under plain error review, Defendant bears the burden of 

showing that the alleged error “had a probable impact on the 

jury’s finding that the defendant was guilty.” State v. 

Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) 

(citation and quotation marks omitted). “[T]he plain error rule 

may not be applied on a cumulative basis, but rather a defendant 

must show that each individual error rises to the level of plain 

error.” State v. Dean, 196 N.C. App. 180, 194, 674 S.E.2d 453, 

463 (2009) (emphasis added).

Here, Defendant has failed to make such a showing. He 

offers no argument or explanation as to how any of the alleged 
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evidentiary errors committed by the trial court — on an 

individual basis — were “so fundamental that justice could not 

have been done” or why these errors had a probable impact on the 

jury’s finding of guilt. State v. Cummings, 352 N.C. 600, 636, 

536 S.E.2d 36, 61 (2000), cert. denied, 532 U.S. 997, 149 

L.Ed.2d 641 (2001). As our Supreme Court has explained:

The right and requirement to specifically 

and distinctly contend an error amounts to 

plain error does not obviate the requirement 

that a party provide argument supporting the 

contention that the trial court’s [improper 

admission of evidence] amounted to plain 

error, as required by subsections (a) and 

(b)(5) of Rule 28 [of the North Carolina 

Rules of Appellate Procedure]. To hold 

otherwise would negate those requirements, 

as well as those in Rule 10(b)(2). 

Defendant’s empty assertion of plain error, 

without supporting argument or analysis of 

prejudicial impact, does not meet the spirit 

or intent of the plain error rule.

Id. at 636-37, 536 S.E.2d at 61 (internal citations omitted).

Because Defendant has failed to provide this Court with any

specific argument as to why the admission of each challenged

piece of evidence rose to the level of plain error, he has 

failed to meet his burden of establishing plain error. See 

State v. Wiley, 355 N.C. 592, 623-24, 565 S.E.2d 22, 44 (2002) 

(holding that where defendant “asserts plain error but provides 

no explanation as to why any alleged error rises to the level of 

plain error. . . . , defendant has effectively failed to argue 

plain error and has thereby waived appellate review”), cert.
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denied, 537 U.S. 1117, 154 L.Ed.2d 795 (2003).

Conclusion

For these reasons, we conclude that Defendant received a 

fair trial free from error.

NO ERROR.

Judges STEELMAN and STEPHENS concur.

Report per Rule 30(e).