In his first assignment of error, defendant contends that the
trial court erred by instructing the jury on an offense for which
he was not indicted. Specifically, defendant contends that his
conviction must be reversed, because he was indicted for possession
of a stolen vehicle in violation of N.C. Gen. Stat. § 20-106,
however, the jury was instructed and subsequently convicted him of
possession of stolen goods in violation of N.C. Gen. Stat. § 14-
71.1.
We note initially that defendant failed to raise this issue at
trial. We therefore review the alleged error under plain error.
Plain error is “'fundamental error, something so basic, so
prejudicial, so lacking in its elements that justice cannot have
been done, or where [the error] is grave error which amounts to a
denial of a fundamental right of the accused.'”
State v. Odom, 307
N.C. 655, 660, 300 S.E.2d 375, 378 (1983)(quoting
United States v.
McCaskill, 676 F.2d 995, 1002 (4th Cir.),
cert. denied, 459 U.S.
1018, 74 L. Ed. 2d 513 (1982)). In order to prevail under plainerror, defendant must establish that the (1) trial court committed
error and that (2) absent the error, the jury would have reached a
different result.
State v. Morganherrring, 350 N.C. 701, 722, 517
S.E.2d 622, 634 (1999).
N.C. Gen. Stat. § 15A-924 (a)(5) (2001) mandates that every
bill of indictment contain:
A plain and concise factual statement in each
count which, without allegations of an
evidentiary nature, asserts facts supporting
every element of a criminal offense and the
defendant's commission thereof with sufficient
precision clearly to apprise the defendant or
defendants of the conduct which is the subject
of the accusation.
Further, “[a]n indictment or criminal charge is constitutionally
sufficient if it apprises the defendant of the charge against him
with enough certainty to enable him to prepare his defense and to
protect him from subsequent prosecution for the same offense.”
State v. Coker, 312 N.C. 432, 434, 323 S.E.2d 343, 346 (1984).
The elements of felonious possession of stolen property under
N.C. Gen. Stat. § 14-71.1 are: “(1) possession of personal
property, (2) valued at more than $400.00, [now $1,000.00] (3)
which has been stolen, (4) the possessor knowing or having
reasonable grounds to believe the property to have been stolen, and
(5) the possessor acting with a dishonest purpose.
State v.
Bartlett, 77 N.C. App. 747, 749, 336 S.E.2d 100, 101 (1985). The
elements of possession of a stolen vehicle in violation of N.C.
Gen. Stat. § 20-106 are: “(1) possession of a vehicle, and (2) the
possessor knowing or having reason to believe the vehicle has been
stolen or unlawfully taken.”
State v. Craver, 70 N.C. App. 555,559, 320 S.E.2d 431, 434 (1984). “A defendant charged with
possession of stolen property under N.C. Gen. Stat. § 14-71.1 or
possession of a stolen vehicle under N.C. Gen. Stat. § 20-106 may
be convicted if the State produces sufficient evidence that
defendant possessed stolen property (i.e, a vehicle) which he knew
or had reason to believe had been stolen or taken.”
State v.
Lofton, 66 N.C. App. 79, 83, 310 S.E.2d 633, 636 (1984).
The indictment in the present case reads as follows:
The jurors for the State upon their oath
present that on or about the date of offense
shown and in Forsyth County the defendant
named above unlawfully, willfully and
feloniously did possess a vehicle, a 1987
Dodge Caravan, N.C. tag being . . . , the
personal property of Armando Martinez
Hernandez, valued at $4000, which the
defendant knew or had reason to know it was
stolen or unlawfully taken.
Thus, defendant was indicted under N.C. Gen. Stat. § 20-106.
The trial court instructed the jury that they should return a
verdict of guilty if they found that the van was in defendant's
possession, that it worth more than one thousand dollars, that it
was stolen, and that defendant knew or had reason to know it was
stolen. Under the instructions provided by the court, defendant
was convicted of possession of stolen property under N.C. Gen.
Stat. § 14-71.1. The allegations set forth in the indictment
adequately apprised defendant that he was charged with possessing
stolen property and the allegations support a conviction under N.C.
Gen. Stat. § 14-71.1. Both offenses are punishable as Class H
felonies. Further, the State presented evidence tending to show
that on 24 April 2000, Martinez reported to law enforcementofficers that his vehicle, which was valued at $2,000, had been
stolen. Two days later, a convenience store owner identified
defendant as the person who walked into his store, brandished a
knife, and stole two cartons of cigarettes. Defendant was later
found by law enforcement officers in possession of the vehicle.
The evidence clearly tends to prove that defendant possessed the
vehicle and such possession was without permission. We therefore
hold that the factual allegations in the indictment were sufficient
to apprise defendant of the charges against him and support a
conviction under N.C. Gen. Stat. § 14-71.1. Furthermore, defendant
has failed to carry his burden under a plain error analysis, that
absent the error, a different result would have been obtained.
This assignment of error is overruled.
In his second assignment of error, defendant contends that the
trial court erred by allowing the State, over his objection, to
refer to an indictment evincing a prior felony conviction, for the
purpose of establishing his status as an habitual felon. We
disagree.
Section 14-7.4 of our General Statutes states:
In all cases where a person is charged . . .
with being an habitual felon, the record or
records of prior convictions of felony
offenses shall be admissible in evidence, but
only for the purpose of proving that said
person has been convicted of former felony
offenses. A prior conviction may be proved by
stipulation of the parties or by the original
or a certified copy of the court record of the
court record. The original or certified copy
of the court record, bearing the same name as
that by which the defendant is charged, shall
be prima facie evidence that the defendant
named therein is the same as the defendantbefore the court, and shall be prima facie
evidence of the facts set out therein.
N.C. Gen. Stat. § 14-7.4. In the instant case, the State
introduced three certified true copies of court records in
establishing prima facie evidence of defendant's three prior felony
convictions. Defendant offered no evidence to rebut this evidence.
We therefore overrule this assignment of error.
In his third assignment of error, defendant contends that the
trial court erred in denying his motion to dismiss his habitual
felon charge for the following reasons: (1) a letter written by
defendant and contained in the court file in support of a previous
conviction was not properly authenticated; and (2) the evidence was
insufficient due to inconsistencies in the recording of defendant's
name in various court documents. We disagree with defendant's
contentions.
“In ruling upon a motion to dismiss, the trial court must
examine the evidence in the light most favorable to the State,
giving the State the benefit of all reasonable inferences which may
be drawn from the evidence.”
State v. Hairston, 137 N.C. App. 352,
354, 528 S.E.2d 29, 30 (2000). “When a defendant moves for
dismissal, the trial court is to determine only whether there is
substantial evidence of each essential element of the offense
charged and of the defendant being the perpetrator of the offense.”
State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991).
“Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
State v.
Lucas, 353 N.C. 568, 580-81, 548 S.E.2d 712, 721 (2001). If thereis substantial evidence of each element of the charged offense and
of the defendant being the perpetrator of the offense, the case is
for the jury and the motion to dismiss should therefore be denied.
State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988).
N.C. Gen. Stat. § 8C-1, Rule 901 (a) (2001) of the North
Carolina Rules of Evidence provides:
The requirement of authentication or
identification as a condition precedent to
admissibility is satisfied by evidence
sufficient to support a finding that the
matter in question is what its proponent
claims.
N.C. Gen. Stat. § 8C-1, Rule 901 (b) (1) and (7) further provides
that authentication may be established through (1) “testimony of a
witness with knowledge -- that a matter is what is claimed to be”
. . . . or (7) by “evidence that a writing authorized by law to be
recorded or filed and in fact recorded or filed in a public office,
or a purported public record, report, statement . . . in any form,
is from the public office where items of this nature are kept.”
In the instant case, the letter submitted was properly
authenticated under Rule 901 (b) (1) and (7) of the North Carolina
Rules of Evidence. At trial, the clerk testified that defendant's
letter was contained in an official court file maintained in the
clerk's office of the superior court. The letter was addressed to
the assistant clerk of superior court and was further signed by
defendant and contained his birth date. Clearly, the fact that the
letter was contained in defendant's court file, written and signed
by defendant, supports the conclusion that the letter was authentic. Defendant further contends that his habitual felon charge
should be dismissed due to the discrepancies in defendant's name on
three certified judgments that were entered into evidence to support
the habitual felon charge. Defendant specifically points to the
fact that the judgment of conviction for one of the felonies was in
the name of “Edward V. McCrae,” the second, “Edward Van McCrae,” and
the third, “Van Edward McCrae.” Defendant argues that the State
failed to present prima facie evidence that the defendant named in
the above-stated judgments is the same as the defendant before the
court. This argument is without merit.
N.C. Gen. Stat. § 14-7.4 (2001) provides in pertinent part that
the “original or certified copy of the court record, bearing the
same name as that by which the defendant is charged, shall be prima
facie evidence that the defendant named therein, is the same as the
defendant before the court.”
In the instant case, three certified judgments were introduced
at trial to support defendant's habitual felon charge. The first
judgment entered 5 June 1997, identified defendant as “Edward V.
McCrae,” the second judgment entered 20 July 1998, identified
defendant as “Edward Van McCrae,” and the third judgment entered 17
October 1989, identified defendant as “Van Edward McCrae.” We hold
that the names on these certified copies satisfy the “same name”
requirement of N.C. Gen. Stat. § 14-7.4.
See State v. Petty, 100
N.C. App. 465, 470, 397 S.E.2d 337, 341 (1990) (holding that for
purposes of N.C. Gen. Stat. § 14-7.4, “Michael Hodge” and “William
Michael Hodge” are the same name, and that the documents constituted
prima facie evidence that defendant was the same defendant before
the court). We further note that any discrepancy between the
actual age of the defendant at the time of conviction and his age
as it appeared on the record of conviction, “goes to the weight of
the evidence not its admissibility.”
Id. We therefore hold that
the trial court properly denied defendant's motion to dismiss and
this assignment of error is overruled.
In his last assignment of error, defendant contends that the
trial court erred by not instructing the jury on misdemeanor
possession of stolen goods. We disagree.
Misdemeanor possession of stolen goods is a lesser included
offense of felonious possession of stolen goods.
See State v.
Brantley, 129 N.C. App. 725, 731, 501 S.E.2d 676, 679 (1998).
“[T]he trial court is not required to submit lesser degrees of a
crime to the jury 'when the State's evidence is positive as to each
and every element of the crime charged and there is no conflicting
evidence relating to any element of the charged crime.'”
State v.
McKinnon, 306 N.C. 288, 300-01, 293 S.E.2d 118, 126 (1982) (quoting
State v. Harvey, 281 N.C. 1, 13-14, 187 S.E.2d 706, 714 (1972)).
In the instant case, there was sufficient evidence in the
record to support the conclusion that the value of the vehicle
exceeded $1,000.00 and the trial court did not err in failing to
instruct the jury on a lesser included offense.
Based on the foregoing, we hold that defendant received a
trial, free from prejudicial error.
No error. Judges MARTIN and BRYANT concur.
Report per Rule 30(e).
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