Summary
In Ethridge, the defendant was charged with breaking and entering, larceny after breaking and entering, and possession of stolen goods.
Summary of this case from State v. HarvellOpinion
No. COA03-1715
Filed 1 February 2005
1. Burglary and Unlawful Breaking or Entering; Larceny; Possession of Stolen Property — defendant as perpetrator — sufficiency of evidence
The trial court correctly denied defendant's motion to dismiss charges of felonious breaking and entering, felonious larceny, and felonious possession of stolen goods where the State provided substantial circumstantial evidence that defendant was the perpetrator. Defendant's vehicle was seen at the site, pulled to the door of the house with its tailgate open and a coffee table inside, and defendant was placed next door on the day the offenses were committed.
2. Criminal Law — flight — instruction supported by the evidence
There was no error in giving the Pattern Jury Instruction on flight in a prosecution for felonious breaking and entering, felonious larceny, and felonious possession of stolen goods. The State provided evidence that reasonably supports the theory that defendant fled after the commission of the crimes.
3. Criminal Law — recent possession of stolen property — instruction
The trial court did not err by giving the Pattern Jury Instruction on possession of recently stolen property in a prosecution for felonious breaking and entering, felonious larceny, and felonious possession of stolen goods.
4. Sentencing — possession of stolen goods and larceny — same goods
The trial court erred by entering judgment for possession of stolen goods where defendant's convictions for possession of stolen goods and felonious larceny were based on taking and possessing the same goods.
Judge HUNTER dissenting.
Appeal by Defendant from conviction and sentence entered 23 July 2003 by Judge Jerry Braswell in Superior Court, Lenoir County. Heard in the Court of Appeals 19 October 2004.
Attorney General Roy Cooper, by Assistant Attorney General Kathleen M. Waylett, for the State. Sue Genrich Berry, for the defendant-appellant.
Defendant Robert Louise Ethridge appeals from his conviction and sentence. He argues that the trial court erred by: (1) failing to dismiss charges of felonious breaking and entering, felonious larceny, and felonious possession of stolen goods; (2) including in its jury instruction Pattern Jury Instruction 104.35 regarding flight; (3) including in its jury instruction Pattern Jury Instruction 104.40 regarding the doctrine of recent possession of stolen property; and (4) entering judgment on the felonious larceny and possession of stolen property convictions where the latter offense is based on possession of the items that were the subject of the former offense. For the reasons stated herein, we affirm in part and reverse in part Defendant's conviction and sentence.
A brief procedural and factual history of the instant appeal is as follows: On 24 May 2002, Jackie Brown received calls informing her that furniture was being taken out of a vacant home owned by her cousin. Ms. Brown watched the house for her cousin, was the only holder of the keys to the house, and kept the house doors locked and reinforced with plywood. When Ms. Brown arrived at the house, she found it had been broken into and property — more than thirty items, including coffee tables, a television, and air conditioners — had been removed. She also found items that had been in the house scattered around the backyard.
Malena Jones lived next door to the house owned by Ms. Brown's cousin. On 24 May 2002, Ms. Jones returned home from work at approximately 3:00 p.m. and noticed a blue station wagon with tinted windows in the driveway of the house. The rear of the car faced the back door of the house and the car's tailgate was open. Ms. Jones testified she saw what appeared to be a coffee table hanging out the back of the car. Ms. Jones recognized one of two men standing by the car to be Derrick Hembry, with whom her daughter had a relationship and who visited her home with some frequency. Ms. Jones's daughter recognized the car, which by then was driving away, to be the one in which Mr. Hembry had arrived at her home earlier that day and knew the car belonged to Defendant.
The blue station wagon was registered to Defendant. Mr. Hembry acknowledged his acquaintance with Defendant and stated that Defendant had driven him to Ms. Jones's house on the day of the commission of the crimes.
The police officers quickly located Defendant's car but not Defendant. Ultimately, Defendant was found about a month later, arrested, and tried on charges of breaking and entering, larceny after breaking and entering, and possession of stolen goods. On 23 July 2003, the jury found Defendant guilty on all charges. Defendant received sentences of six to eight months imprisonment, twelve months probation, and fees and costs totaling $5931 for breaking and entering, six to eight months imprisonment and twelve months probation for larceny after breaking and entering, and six to eight months imprisonment and twelve months probation for possession of stolen goods. Defendant appealed.
On appeal, Defendant first contends that the trial court erred by denying his motions to dismiss charges of felonious breaking and entering, felonious larceny, and felonious possession of stolen goods at the close of the State's evidence and at the close of all evidence because "the evidence was insufficient to prove the Defendant was the perpetrator of the offenses" (Assignments of Error Nos. 1, 2, and 3). To survive a motion to dismiss, the State must present substantial evidence of each element of the offense charged and the defendant's being the perpetrator. State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000). In considering whether such substantial evidence, i.e., "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) (citations omitted)), exists, the trial court must view the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference. State v. Price, 344 N.C. 583, 587, 476 S.E.2d 317, 319 (1996).
Here, the State provided substantial circumstantial evidence to prove the Defendant was the perpetrator of the offenses, including: A vehicle registered to Defendant and identified by others as belonging to Defendant, was seen at the crime scene. The vehicle, with its tailgate open, was pulled up to the door of the house. A coffee table was seen in the car. Defendant was placed by Mr. Hembry next door to the crime scene on the day the offenses occurred. We hold that, in the light most favorable to the State, the State provided substantial circumstantial evidence that Defendant perpetrated the offenses. State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 919 (1993) (On a motion to dismiss, circumstantial evidence constitutes sufficient substantial evidence where "the court decides that a reasonable inference of defendant's guilt may be drawn[.]"). We therefore affirm the trial court's denial of Defendant's motion to dismiss.
Defendant next contends that the trial court erred by including in its jury instructions Pattern Jury Instruction 104.35 regarding flight (Assignment of Error No. 4). An instruction on flight "is appropriate where `there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime[.]'" State v. Kornegay, 149 N.C. App. 390, 397, 562 S.E.2d 541, 546 (2002) (quoting State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977)). "`The relevant inquiry concerns whether there is evidence that defendant left the scene of the [crime] and took steps to avoid apprehension.'" Id. (quoting State v. Levan, 326 N.C. 155, 165, 388 S.E.2d 429, 434 (1990)). If we find "some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged, the instruction is properly given. The fact that there may be other reasonable explanations for defendant's conduct does not render the instruction improper." Irick, 291 N.C. at 494, 231 S.E.2d at 842 (citation omitted).
Here, the State provided some evidence of flight. Defendant left the crime scene shortly after Ms. Jones arrived home. Furniture that had been in the house was found scattered in the backyard. While the police found Defendant's vehicle, they were not able to locate Defendant for several weeks. This evidence reasonably supports the theory that Defendant fled after commission of the crimes charged. We therefore find no error with the trial court's instructing the jury on flight.
Defendant also contends that the trial court erred by including in its jury instructions Pattern Jury Instruction 104.40 regarding the doctrine of recent possession of stolen property (Assignment of Error No. 5). The doctrine of recent possession is "a rule of law that, upon an indictment for larceny, possession of recently stolen property raises a presumption of the possessor's guilt of the larceny of such property." State v. Maines, 301 N.C. 669, 673, 273 S.E.2d 289, 293 (citing State v. Bell, 270 N.C. 25, 153 S.E.2d 741 (1967); State v. Allison, 265 N.C. 512, 144 S.E.2d 578 (1965)). The recent possession presumption is allowed only where:
the State shows beyond a reasonable doubt: (1) the property described in the indictment was stolen; (2) the stolen goods were found in defendant's custody and subject to his control and disposition to the exclusion of others though not necessarily found in defendant's hands or on his person so long as he had the power and intent to control the goods; and (3) the possession was recently after the larceny, mere possession of stolen property being insufficient to raise a presumption of guilt.
Maines, 301 N.C. at 674, 273 S.E.2d at 293 (citations omitted).
Here, as in State v. Joyner, 301 N.C. 18, 269 S.E.2d 125 (1980), while the trial court referred to the doctrine of recent possession at the State's request, it
nowhere charged that the fact of possession raised a presumption or even an inference that defendant was guilty of any of the crimes charged against him. [The trial judge] merely stated that the jury might consider defendant's recent possession together with all the other facts and circumstances in deciding whether or not the defendant is guilty of larceny.
Joyner, 301 N.C. at 29, 269 S.E.2d at 132 (quotation omitted). "`Whenever goods have been taken as a part of the criminal act, the fact of subsequent possession is some indication that the possessor was the taker, and therefore the doer of the whole crime.'" Id. (quoting 1 WIGMORE ON EVIDENCE § 153 (3d ed. 1940). We therefore find that the trial judge properly instructed the jury that, if it found recent possession, it could consider that recent possession as relevant in determining whether Defendant was guilty of the crimes charged.
Lastly, Defendant contends, and the State agrees, that the trial court erred in entering judgment for the offense of possession of stolen goods. Defendant's convictions for possession of stolen goods and felonious larceny were based on the taking and possessing of the same goods. North Carolina, however, does not "punish an individual for larceny of property and the possession of the same property which he stole." State v. Perry, 305 N.C. 225, 235, 287 S.E.2d 810, 816 (1982). Defendant's conviction for the possession of stolen goods is therefore reversed.
Defendant expressly abandoned his other assignments of error.
No error in part; reversed in part.
Judge THORNBURG concurred prior to 31 December 2004.
Judge HUNTER dissents in a separate opinion.