STATE OF NORTH CAROLINA
v
.
Rockingham County
Nos. 00 CRS 9435
00 CRS 11574
JOHN EDWARD WADDELL
Attorney General Roy Cooper, by Assistant Attorney General E.
Clementine Peterson, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Aaron Edward Carlos, and Assistant Appellate Defender
Daniel R. Pollitt, for defendant-appellant.
CAMPBELL, Judge.
John Edward Waddell (“defendant”) was indicted for felony
larceny in violation of N.C. Gen. Stat. § 14-72 and possession of
a stolen vehicle in violation of N.C. Gen. Stat. § 20-106.
Defendant was also indicted for being an habitual felon in
violation of N.C. Gen. Stat. § 14-7.1. The felony larceny and
possession of a stolen vehicle charges were tried at the 14 March
2001 Criminal Session of Rockingham County Superior Court.
The evidence tended to show that defendant did not go to work
on 11 August 2000, but instead spent the day drinking, driving to
the liquor store, and pitching horseshoes with friends. Byapproximately 11:00 p.m. that night, defendant had drunk more than
a fifth of liquor and four, twenty-four ounce beers. At about that
time, defendant reported to the highway patrol that his car, a red
four-door 1991 Chevrolet Corsica, had been involved in an accident.
Shortly thereafter, defendant was arrested at his residence for
driving while intoxicated, hit and run, and driving without a
license. Defendant asserted that he had loaned his car to Kenny
McCaster (“Kenny”) earlier that day in exchange for crack cocaine
and that Kenny, not defendant, was driving the car when it was
involved in the accident.
Following his arrest, defendant's car was impounded and
defendant was taken to the County Government Center where he was
asked to submit to a breathalyzer test. Defendant refused the
breathalyzer and was taken to the magistrate's office where he was
formally charged with driving while intoxicated. Defendant was
then released by the magistrate on an unsecured bond. Defendant
testified that he was still drunk when the magistrate released him
from custody.
Defendant asked the arresting patrolman to give him a ride
home but the patrolman responded that he could not. Defendant then
used the telephone in the magistrate's office to call his cousin,
who told defendant that she would try to send someone to pick him
up. Defendant left the magistrate's office and walked to the
sheriff's office to wait for a ride. While waiting at the
sheriff's office, defendant noticed a red car pull up in the
Government Center parking lot. Defendant testified that the car“kinda looked like my car, but it wasn't.” The car, a red four-
door 1989 Ford Tempo, was owned and driven by Officer Richard
Johnson (“Officer Johnson”). Defendant asked Officer Johnson for
a ride home but Officer Johnson was unable to provide one. Officer
Johnson testified that he detected an odor of alcohol coming from
defendant when defendant asked him for the ride home. Defendant
then asked another officer for a ride home and was again refused.
Defendant testified that he then talked to some people outside
the sheriff's office for approximately five minutes before going
back inside the office. Approximately 2:30 a.m., defendant, tired
of waiting for a ride, left the office and walked to Officer
Johnson's car. Defendant opened the door, sat in the car, and
noticed that there were keys lying on the car seat. Defendant used
one of the keys to start the car and then drove it from the
Government Center to his residence. When asked at trial why he had
driven Officer Johnson's car home, defendant responded, “I kind of
made a mistake.” When asked to elaborate, defendant responded, “I
took the car thinking it was mine . . . [b]ecause they had took my
car the same night and brought it here.”
Defendant further testified that he realized the car was not
his when he arrived at his residence. Defendant then went inside
and drank a couple of beers. Kenny, to whom defendant had been
loaning his car all week in exchange for crack cocaine, arrived at
defendant's residence and asked him about the car. Defendant made
it clear to Kenny that the car was not his. Defendant then told
Kenny that he could have the car in exchange for more crackcocaine. Defendant traded Officer Johnson's car for one rock of
crack cocaine and Kenny drove the car away.
Following the presentation of evidence, defendant was found
guilty of felony larceny and possession of a stolen vehicle.
Defendant then pled guilty to being an habitual felon. On 15 March
2001, the trial court arrested judgment on the felony larceny
conviction, entered judgment on the possession of a stolen vehicle
conviction, and sentenced defendant as an habitual felon to a
prison term of 133 to 169 months. Defendant appeals.
On 14 December 2001, the State filed a motion to dismiss
defendant's appeal, arguing that defendant's notice of appeal was
untimely filed. Defendant responded by filing a petition for writ
of certiorari. We grant the State's motion to dismiss defendant's
appeal. However, we likewise grant defendant's petition for writ
of certiorari in order to address the merits of defendant's case.
N.C. R. App. P. 21(a)(1) (2001).
Turning to defendant's assignments of error, we initially note
that several are deemed abandoned pursuant to N.C. R. App. P.
28(b)(6) for defendant's failure to argue them in his brief. We
address only those assignments of error properly set forth and
argued in defendant's brief.
Defendant first contends that he is entitled to a new trial on
the possession of stolen vehicle charge because the trial court
erred in refusing to instruct the jury on the defense theory of
mistake of fact. The theory of mistake of fact was set forth by this Court in
State v. Lamson, 75 N.C. App. 132, 330 S.E.2d 68 (1985) as follows:
Ordinarily, a crime consists in the
concurrence of prohibited conduct and culpable
mental state. 1 Wharton's Criminal Law § 27
(14th ed. 1978). A crime is not committed if
the mind of the person doing the act is
innocent. State v. Welch, 232 N.C. 77, 59
S.E.2d 199 (1950). If there is evidence from
which an inference can be drawn that the
defendant committed the act without a criminal
intent, then the law with respect to intent
should be explained and applied by the court
to the evidence. State v. Walker, 35 N.C.
App. 182, 241 S.E.2d 89 (1978).
Id. at 136, 330 S.E.2d at 70.
In State v. Walker, 35 N.C. App. 182, 241 S.E.2d 89 (1978),
this Court applied the mistake in fact theory in a child abduction
case. In Walker, the defendant, who was charged with abducting a
child, testified that when he took the child from the school bus he
believed she was his granddaughter, and as soon as he discovered
his mistake he returned her to the school. This court held that
the evidence permitted the inference that the defendant was
laboring under a mistake as to the identity of the little girl
which could negate any criminal intent, and the trial judge erred
in failing to instruct the jury on the defense of mistake of fact.
Id. at 186-87, 241 S.E.2d at 92.
In the instant case, defendant contends that he was entitled
to an instruction on mistake of fact because his testimony
permitted the inference that he took Officer Johnson's car from the
Government Center under the mistaken belief that it was in fact his
own vehicle. Defendant maintains that this mistake of fact negatestwo of the essential elements of the crime of possession of a
stolen vehicle--(1) that defendant knew or had reason to know that
the vehicle had been stolen or unlawfully taken, and (2) that the
vehicle had in fact been stolen or unlawfully taken. While we
agree with defendant that the evidence presented at trial does
permit the inference that defendant took the car under the mistaken
belief that it was his own, we disagree with defendant's contention
that he was entitled to an instruction on mistake of fact as to the
possession of stolen vehicle charge.
Defendant was charged and convicted of possession of a stolen
vehicle in violation of N.C. Gen. Stat. § 20-106. The statute
reads:
Any person who . . . has in his
possession any vehicle which he knows or has
reason to believe has been stolen or
unlawfully taken, and who is not an officer of
the law engaged at the time in the performance
of his duty as such officer shall be punished
as a Class I felon.
N.C. Gen. Stat. § 20-106 (2001). The purpose of this statute being
to discourage the possession of stolen or unlawfully taken
vehicles, the State need only prove that the defendant had
possession of a stolen or unlawfully taken vehicle and that the
defendant knew or had reason to know that the vehicle had been
stolen or unlawfully taken. See N.C.G.S. § 20-106; State v. Suitt,
94 N.C. App. 571, 573, 380 S.E.2d 570, 571 (1989); State v. Craver,
70 N.C. App. 555, 559, 320 S.E.2d 431, 434 (1984); State v. Lofton,
66 N.C. App. 79, 83, 310 S.E.2d 633, 635-36 (1984); State v. Baker,
65 N.C. App. 430, 436, 310 S.E.2d 101, 107 (1983); State v. Rook,26 N.C. App. 33, 35, 215 S.E.2d 159, 161 (1975). The State is not
required to prove felonious intent on the part of the defendant.
Baker, 65 N.C. App. at 436, 310 S.E.2d at 107 (citing State v.
Murchinson, 39 N.C. App. 163, 168, 249 S.E.2d 871, 875 (1978)
overruled on other grounds, 45 N.C. App. 510, 263 S.E.2d 298
(1980)). Further, a defendant may be convicted under this statute
even if the State does not have sufficient evidence to prove the
underlying larceny or unlawful taking. Lofton, 66 N.C. App. at 83,
310 S.E.2d at 636 (citing State v. Kelly, 39 N.C. App. 246, 249
S.E.2d 832 (1978)); see also State v. Perry, 305 N.C. 225, 287
S.E.2d 810 (1982) (holding that possession of stolen property under
N.C.G.S. § 14-71.1 and larceny are two separate and distinct
offenses).
In the instant case, defendant testified that he realized the
car that he had driven from the Government Center to his house was
not his own at the moment he arrived at his house and got out of
the car. At that point, defendant was in possession of a vehicle
which he knew did not belong to him. Defendant also knew that he
had taken the vehicle from the Government Center parking lot
without the express or implied consent of the vehicle's rightful
owner, Officer Johnson. Although defendant's taking of Officer
Johnson's car may not have risen to the level of a felony larceny,
due to defendant's belief that the car was in fact his when he
started it up and drove it from the Government Center to his house,
the taking was clearly an unauthorized use of a motor vehicle, and
thus an unlawful taking, because there is no evidence thatdefendant had, or was under the mistaken belief that he had, the
express or implied consent of Officer Johnson to be driving the
car. See N.C. Gen. Stat. § 14-72.2(a) (2001); State v. McCullough,
76 N.C. App. 516, 333 S.E.2d 537 (1985).
Faced with the knowledge that he had in his possession a
vehicle that was not his and had been unlawfully taken from the
Government Center parking lot, defendant had two options.
Defendant could either contact law enforcement or otherwise attempt
to return the car to its rightful owner, Officer Johnson, or
defendant could act in a manner that was inconsistent with Officer
Johnson's ownership interest in the car and indicative of
defendant's intent to deprive Officer Johnson of that ownership
interest. Faced with these two options, defendant chose the
latter. Defendant testified that, after realizing the car was not
his, he went inside his house and drank two beers. Shortly
thereafter, Kenny, who had been borrowing defendant's car all week
in exchange for crack cocaine, came to defendant's house and
inquired about Officer Johnson's car. After making it clear to
Kenny that the car did not belong to him, defendant exchanged
Officer Johnson's car for one rock of crack cocaine. By acting in
a manner inconsistent with the ownership rights of the rightful
owner of the car, we conclude that defendant negated any mistake of
fact defense to which he may have been entitled on the possession
of a stolen vehicle charge. Accordingly, we hold that the trial
court did not err in failing to instruct the jury on mistake of
fact as to the possession of a stolen vehicle charge. Defendant next contends that he is entitled to a new trial on
the possession of a stolen vehicle charge because the trial court
erred in failing to instruct the jury on two essential elements of
the charged offense--(1) that the car was in fact stolen or
unlawfully taken, and (2) that defendant acted with a dishonest
purpose. In support of his contention, defendant argues that our
Supreme Court has held that these two elements are essential
elements of the crime of possession of stolen property under N.C.
Gen. Stat. § 14-71.1, this State's general statute prohibiting the
possession of stolen goods. See Perry, 305 N.C. at 233, 287 S.E.2d
at 815.
We begin by noting that this Court has consistently held that
the two essential elements of a violation of N.C.G.S. § 20-106 are
(1) possession of a stolen or unlawfully taken vehicle (2) knowing
or having reason to know that the vehicle was stolen or unlawfully
taken. Suitt, 94 N.C. App. at 573, 380 S.E.2d at 571; Craver, 70
N.C. App. at 559, 320 S.E.2d at 434; Lofton, 66 N.C. App. at 83,
310 S.E.2d at 635-36; Baker, 65 N.C. App. at 436, 310 S.E.2d at
107. Here, the trial court instructed the jury on these two
essential elements.
Further, we conclude that the two elements on which defendant
contends the trial court erroneously failed to instruct, are
contained by implication within the two elements on which the trial
court did instruct. The fact that the State must prove that the
vehicle was in fact stolen or unlawfully taken is implicit in the
first element of the offense--that the defendant possess a stolenor unlawfully taken vehicle. The dishonest purpose element is
likewise implicit in the second element of possession of a stolen
vehicle--that the defendant know or have reason to know that the
vehicle was stolen or unlawfully taken. Possession of a vehicle
which the possessor knows or has reason to know has been stolen or
unlawfully taken is, as a matter of law, conduct committed with a
dishonest purpose. Thus, defendant's second argument is overruled.
By his next two arguments, defendant contends that he is
entitled to a new trial on the possession of a stolen vehicle
charge due to errors allegedly committed in relation to the felony
larceny charge. However, the trial court arrested judgment on the
felony larceny charge, as it was required to do under State v.
Perry. In Perry, the Supreme Court held that a defendant cannot be
punished for both larceny of property and possession of the same
property which the defendant stole. Perry, 305 N.C. at 236, 287
S.E.2d at 817. Accordingly, any error as to the felony larceny
charge was rendered harmless by arresting judgment on that charge.
Further, we disagree with defendant's contention that the alleged
errors as to the felony larceny charge prejudiced defendant's
conviction for possession of a stolen vehicle.
Defendant's final argument concerns the proper action to be
taken were this Court to find prejudicial error on the possession
of a stolen vehicle charge. Having found no error on the
possession charge, we do not address this final contention.
In conclusion, we hold that defendant was not entitled to an
instruction on mistake of fact on the possession of stolen vehiclecharge and that the trial court correctly instructed the jury on
the essential elements of possession of a stolen vehicle.
No error.
Judges MARTIN and TIMMONS-GOODSON concur.
Report per Rule 30(e).
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