Opinion
No. COA03-191
Filed April 6, 2004 This case not for publication
Appeal by defendant from judgment entered 11 June 2002 by Judge Jerry Braswell in Wayne County Superior Court. Heard in the Court of Appeals 24 February 2004.
Attorney General Roy Cooper, by Assistant Attorney General Robert R. Gelblum, for the State. Penny K. Bell and Mark A. Key, for defendant-appellant.
Wayne County, Nos. 01 CRS 012147, 01 CRS 055360.
Johnny Ray Adams ("defendant") appeals from a judgment entered after a jury found him guilty of felonious possession of stolen goods. He was sentenced to imprisonment for a minimum of 100 months and a maximum of 129 months as a habitual felon. We find no error.
I. Background
On 16 July 2001, Walter Robert Gainey ("Gainey") reported to the Wayne County Sheriff's Department that his North Star 8,000 watt generator had been stolen from a locked shed on his property. Gainey had paid $1,257.00 for the generator approximately two (2) months prior to the robbery.
The day before Gainey reported the theft, defendant was driving his truck with the generator located within plain view in the rear. Richard Camden ("Camden") occupied the passenger side of the truck. Both defendant and Camden worked for Gainey and had lived with him for a time.
Wayne County Sheriff Deputy Joseph Ray Smith ("Deputy Smith") stopped defendant's vehicle early in the morning of 15 July 2001. Deputy Smith observed Camden sitting on the passenger's side of the truck and was aware of an outstanding warrant for his arrest. He placed Camden into custody and questioned defendant about the generator in the back of the truck. Defendant denied knowing anything about the generator, informed Officer Smith that it had been given to him by Camden's brother, and stated, "if [the generator] is stolen, you know where I live." Since Gainey had not yet reported the generator stolen, Officer Smith did not take defendant into custody. Both defendant and Camden were arrested on 23 July 2001 and charged with felonious breaking and entering, as well as felonious larceny.
Defendant did not offer any evidence. The trial court granted defendant's motion to dismiss the charge of second-degree burglary. The jury found defendant not guilty of felonious larceny after breaking and entering and guilty of possession of stolen goods. Defendant appeals.
II. Issue
The sole issue on appeal is whether the trial court erred by denying defendant's motion to dismiss the charge of felonious possession of stolen property.
III. Motion to Dismiss
Defendant argues the State failed to present sufficient evidence satisfying the elements of the charge of felonious possession of stolen goods to survive his motion to dismiss. We disagree.
The State argues this issue is not properly before this Court because defendant did not move to dismiss the third charge of felonious possession of stolen goods. Defendant did move to dismiss at the close of all the evidence and presented the following argument:
We would ask the Court if it would consider dismissing Count I, the charge of second degree burglary . . . we would move to dismiss Count I. As to Count II we would also move to dismiss that. . . . I think the only thing they can possibly get to the jury might be possession of stolen goods, and I would argue against that as well, because there's not been a scintilla of evidence concerning that. . . .
We find that defense counsel's statement, "I would argue against that as well, because there's not been a scintilla of evidence concerning that," was sufficient to include this charge in defendant's motion to dismiss. Also, the trial court ruled, "[t]he Defendant having made a motion to dismiss Counts I, II, and III . . . is denied."
To withstand a motion to dismiss for insufficiency of the evidence, the trial court must consider all the evidence in the light most favorable to the State, giving the State every reasonable inference that can be drawn from the evidence. State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652-653 (1982). The evidence considered by the trial court must be substantial evidence tending to show each essential element of the offense charged and from which the jury could reasonably find that defendant perpetrated the offense. Id. at 65-66, 296 S.E.2d at 651-652. "The issue of whether the evidence presented constitutes substantial evidence is a question of law for the court. Substantial evidence is `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. at 66, 296 S.E.2d at 652 (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)).
A. Knowledge Element
To convict a defendant of possession of stolen property, the State must prove and the jury must find: "(1) possession of personal property; (2) which has been stolen; (3) the possessor knowing or having reasonable grounds to believe the property to have been stolen; and (4) the possessor acting with a dishonest purpose." State v. Perry, 305 N.C. 225, 233, 287 S.E.2d 810, 815 (1982); see also N.C. Gen. Stat. § 14-71.1 (2003); N.C. Gen. Stat. § 14-72 (2003). "The requisite guilty knowledge may be inferred from incriminating circumstances." State v. Haskins, 60 N.C. App. 199, 200, 298 S.E.2d 188, 189 (1982).
The evidence tended to show that in the early morning of 15 July 2001 Deputy Smith stopped defendant's truck and observed the generator, later reported as stolen, located in plain view in the back of defendant's truck. Deputy Smith questioned defendant regarding the generator, and defendant replied that he had obtained the generator from Camden's brother. Defendant informed Deputy Smith, "if [the generator] is stolen, you know where I live." The stolen generator was never recovered. Testimony showed Camden's brother was incarcerated both at the time the generator was stolen and on the day Deputy Smith stopped defendant.
On the morning of 16 July 2001, Gainey testified that he received a telephone call from someone who identified himself as defendant. The caller informed Gainey that if he reported the generator stolen, Camden was "going to tell about something Mr. Gainey had done in the past." In addition, Gainey recognized and identified defendant's voice. Defendant had lived with Gainey for several years. After receiving the phone call, Gainey discovered the broken lock on the shed and reported to the police that his generator had been stolen.
This evidence is sufficient to allow a reasonable juror to decide whether defendant knew or should have known the generator was stolen property. This assignment of error is overruled.
B. Value of the Generator
Defendant argues the trial court should have granted his motion to dismiss because the State did not provide sufficient evidence to show the generator was valued in excess of $1,000.00.
Defendant was indicted under N.C. Gen. Stat. § 14-71.1. N.C. Gen. Stat. § 14-71.1 and N.C. Gen. Stat. § 14-72 can be read together. State v. Taylor, 311 N.C. 380, 384, 317 S.E.2d 369, 371 (1984). In Taylor, the Supreme Court held,
G.S. 14-71.1 provides that anyone convicted of possession of stolen goods `shall be punished as one convicted of larceny.' G.S. 14-72(a) describes the crimes of larceny of property and receiving or possessing stolen goods, and designates whether the crime is a felony or a misdemeanor based upon whether the property is valued at more than [one thousand dollars].
Id. at 382, 317 S.E.2d at 370.
N.C. Gen. Stat. § 14-72(b)(2) (2003) states that property taken during a breaking and entering, pursuant to N.C. Gen. Stat. § 14-54, is a larceny without regard to the value of the property. See Taylor, 311 N.C. at 383, 317 S.E.2d at 371. Evidence of value is not a necessary element to convict defendant of felonious possession of stolen property if the evidence is sufficient to show that the taking amounted to a "larceny or a felony" as required by our statutes. N.C. Gen. Stat. § 14-72(c) (2003) provides that the possession of stolen goods with reasonable grounds to believe that they are stolen under the circumstances described in N.C. Gen. Stat. § 14-72(b) "is a felony, without regard to the value of the property in question." See also Taylor, 311 N.C. at 383, 317 S.E.2d at 371.
Count III of defendant's indictment alleges that the generator was stolen "pursuant to and after the felonious breaking and entering of a storage building within the curtilage of the residence of Walter Robert Gainey." The evidence tended to show that the shed remained locked, and Gainey possessed the only key to unlock the shed. Gainey testified he did not give anyone permission to remove the generator from his shed. The hasp on the shed had been pried open, and the generator was missing. Defendant's possession of the stolen generator after a breaking and entering is a felony, regardless of the generator's value. Taylor, 311 N.C. at 383, 317 S.E.2d at 371.
Although the jury acquitted defendant of felonious breaking and entering, the trial court did not err in failing to dismiss the charge of felonious possession of stolen goods. N.C. Gen. Stat. § 14-72(a) (2003) states, " [e]xcept as provided in subsections (b) and (c) . . . possession of stolen goods . . . where the value of the property or goods is not more than one thousand dollars ($1,000), is a Class 1 misdemeanor." (emphasis supplied). Sections (b) and (c) of this statute make possession of stolen goods "pursuant to a violation of G.S. 14-51, 14-53, 14-54 or 14-57" a "felony, without regard to the value of the property in question." N.C. Gen. Stat. § 14-72(b)-(c) (2003). Our Supreme Court, in interpreting the General Assembly's intent in this statute regarding larceny and possession of stolen goods, concluded the legislature intended to allow the State to proceed when it cannot prove a defendant committed the breaking and entering but can prove possession of the stolen goods. Perry, 305 N.C. at 236, 287 S.E.2d at 816.
The State was not required to show that defendant committed the breaking and entering, only that a breaking and entering occurred "pursuant to a violation of G.S. . . . 14-54." N.C. Gen. Stat. § 14-72(b)(2) (2003); see Taylor, 311 N.C. at 386, 317 S.E.2d at 372 (The trial court's instruction to the jury, which did not reference value, "contains all of the elements of the crime of possession of a stolen firearm, which is a felony." In so holding, the Court cited N.C. Gen. Stat. § 14-71.1 and N.C. Gen. Stat. § 14-72.). Defendant's assignment of error is overruled.
C. Remaining Elements
Defendant also contends that the State failed to produce sufficient evidence to show that the generator was stolen pursuant to a breaking and entering or that defendant possessed the generator with a dishonest purpose. We discussed above the State's evidence tending to show the generator was stolen from Gainey. The generator was last seen in defendant's possession and was never recovered. Also, defendant has not cited any authority to support his argument and has abandoned appellate review of these issues. N.C.R. App. P. 28(b)(6) (2004) ("Assignments of error . . . in support of which no reason or argument is stated or authority cited, will be taken as abandoned."). These assignments of error are dismissed.
IV. Conclusion
The State presented sufficient evidence tending to show that defendant committed the offense of felonious possession of stolen property. The trial court did not err in denying defendant's motion to dismiss.
No Error.
Judges WYNN and McGEE concur.
Report per Rule 30(e).