Appeal by defendant from judgment entered 9 October 2001 by
Judge James E. Ragan in Wayne County Superior Court. Heard in the
Court of Appeals 30 January 2003.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Elizabeth F. Parsons, for the State.
Jeffrey Evan Noecker for defendant-appellant.
HUNTER, Judge.
Scottie Terrill Bailey (“defendant”) appeals his convictions
and sentencing for possession of stolen goods, possession of a
stolen motor vehicle, and being an habitual felon. We conclude
defendant was properly adjudicated as an habitual felon; however,
defendant's convictions for both possession offenses violated
double jeopardy thereby requiring this Court to vacate his
conviction for possession of stolen goods and remand this case to
the trial court for resentencing.
On 6 August 2001, defendant was indicted by a Wayne County
Grand Jury for possession of stolen goods and possession of a
stolen motor vehicle (01CRS003182). Defendant was also indicted
for being an habitual felon (01CRS007464) due to three prior felonyconvictions. Defendant's trial began on 8 October 2001, during
which the following evidence was introduced.
On the morning of 2 April 2002, Tony Crain (“Crain”) drove
his company's vehicle, a black 2000 Chevrolet Suburban (“the
Suburban”) with a vanity tag that read “'1 ALLIED,'” to meet with
a customer at a construction site in Raleigh, North Carolina. Upon
arriving at the site, Crain parked the Suburban and left his
keyring in the driver's seat. While conferring with the customer
at a distance of approximately thirty feet from the Suburban, Crain
noticed a man ride by on a bicycle. As Crain walked back towards
the Suburban approximately fifteen minutes later, he saw the
vehicle being driven away. He had not given anyone permission to
drive the Suburban. A bicycle was found lying on the ground near
where the Suburban had been parked.
The Suburban was equipped with OnStar, a computer tracking and
roadside assistance system. Thus, Crain immediately called OnStar
and reported the vehicle had been stolen. He also called the
Raleigh police. Crain told the police he was unable to identify
the bicyclist whom he believed had stolen the Suburban.
By that afternoon, the Suburban was spotted in Goldsboro,
North Carolina, by Officer Dorothy Ardes (“Officer Ardes”). She
and several other Goldsboro police officers pulled the Suburban
over without incident. As Officer Ardes approached the vehicle,
she saw defendant in the driver's seat and two other passengers in
the Suburban. Defendant informed the officer that he had gotten
the Suburban from a friend (whose name he would not give) and thathe was in Goldsboro visiting his child. When defendant and the
passengers asked why they had been stopped, the police indicated
that the vehicle had been reported stolen.
Upon receiving confirmation that defendant was driving the
stolen Suburban, the police placed him under arrest. Pursuant to
the arrest, the police searched defendant and the two passengers.
Crain's keyring, which included the Suburban key and Crain's
residence key, was found in defendant's possession. Over
defendant's objection, Officer Ardes and another officer, Officer
Raymond Yeager (“Officer Yeager”), testified that drug
paraphernalia was found on one of the passengers. Officer Yeager
also testified, over defendant's objection, that defendant invoked
his right to remain silent after being read his Miranda rights.
Following the presentation of all the evidence, the trial
court instructed the jury on the charges of felony possession of
stolen goods, i.e. the Suburban, and felony possession of a stolen
motor vehicle, also the Suburban. The jury returned with two
guilty verdicts for these Class H felonies.
Thereafter, the trial court and the attorneys discussed the
previously obtained habitual felon indictment, the existence of
which had not been revealed to the jury prior to its verdicts on
the possession offenses. Defense counsel indicated that defendant
was prepared to admit his habitual felon status in order to forgo
a second trial. However, the court stated that it was necessary to
first go through a transcript of plea because defendant's
stipulation alone was insufficient. Following his review of thetranscript of plea in the courtroom, defendant pled guilty to being
an habitual felon. This Class C felony conviction and defendant's
two Class H felony convictions were consolidated for judgment as
part of a plea agreement. Defendant was sentenced to a term of
seventy-three months to ninety-seven months in the North Carolina
Department of Corrections. Defendant appeals.
I.
We first consider defendant's third assignment of error
regarding whether the trial court erred in failing to dismiss both
possession charges against him due to insufficiency of the
evidence.
To withstand a motion to dismiss for insufficient evidence,
the trial court is to consider the evidence in the light most
favorable to the State, which entitles the State “to every
reasonable intendment and every reasonable inference to be drawn
from the evidence[.]”
State v. Earnhardt, 307 N.C. 62, 67, 296
S.E.2d 649, 653 (1982). The evidence considered must be
“substantial evidence (a) of each essential element of the offense
charged, or of a lesser offense included therein, and (b) of
defendant's being the perpetrator of the offense.”
Id. at 65-66,
296 S.E.2d at 651. Whether the evidence presented is substantial
is a question of law for the court.
State v. Stephens, 244 N.C.
380, 384, 93 S.E.2d 431, 433 (1956).
A defendant charged with possession of
stolen property under G.S. 14-71.1 or
possession of a stolen vehicle under G.S.
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, 635-36 (1984)
(emphasis added). Defendant contends his motion to dismiss these
charges should have been granted because there was insufficient
evidence establishing that he “knew or had reason to believe” the
Suburban was stolen. We disagree.
The evidence offered in the case at bar consisted of the
following: (1) Defendant was found driving the Suburban several
hours after it was stolen; (2) defendant claimed the vehicle
belonged to a “friend,” but would not give that friend's name; (3)
Crain testified that he had not given anyone permission to drive
the Suburban on the day in question; and (4) defendant was found
with Crain's group of keys in his possession. This evidence
establishing defendant's knowledge or reasonable belief that the
Suburban was stolen was circumstantial at best because Crain could
not identify defendant as the bicyclist whom he believed stole his
vehicle. Nevertheless, “the rule for determining the sufficiency
of evidence is the same whether the evidence is completely
circumstantial, completely direct, or both.”
State v. Wright, 302
N.C. 122, 126, 273 S.E.2d 699, 703 (1981) (citations omitted).
Regardless of the circumstantial nature of the evidence in this
case, a strong inference can be deduced that defendant knew or had
reasonable grounds to believe the vehicle was stolen. Therefore,
the trial court did not err in denying defendant's motion to
dismiss and submitting the case to the jury.
II.
Defendant assigns plain error to testimony given by Officers
Ardes and Yeager concerning drug paraphernalia being found on one
of the passengers in the Suburban. Defendant contends that
although his objection to that portion of each officer's testimony
was sustained, his failure to move to strike or request an
instruction that the jury disregard it may have resulted in the
jury associating one illegal act with another, especially in the
absence of “strong” evidence establishing defendant's guilty
knowledge or reasonable belief that the Suburban was stolen. We
disagree.
A prerequisite to our engaging in a “plain
error” analysis is the determination that the
instruction complained of constitutes “error”
at all. Then, “[b]efore deciding that an
error by the trial court amounts to 'plain
error,' the appellate court must be convinced
that absent the error the jury probably would
have reached a different verdict.”
State v. Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468 (1986)
(quoting
State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83
(1986)). In light of (1) defendant's objection being sustained,
(2) our analysis regarding defendant's third assigned error, and
(3) clear evidence that the drug paraphernalia was
not found on
defendant, we fail to ascertain how the challenged testimony in
this case constituted error at all. Thus, a “plain error” analysis
is inappropriate.
III.
Next, defendant argues his Fifth Amendment rights were
violated by the admission of evidence that he refused to answer
questions after being read his
Miranda rights. “[A] defendant'sexercise of his constitutionally protected rights to remain silent
and to request counsel during interrogation may not be used against
him at trial. However, such a constitutional error will not
warrant a new trial where it was harmless beyond a reasonable
doubt.”
State v. Elmore, 337 N.C. 789, 792, 448 S.E.2d 501, 502
(1994) (citations omitted). We conclude the court's error in the
instant case was harmless beyond a reasonable doubt.
During the trial, Officer Yeager testified that after
defendant was read his
Miranda rights and signed a waiver form
acknowledging that he understood those rights, Officer Yeager
“asked [defendant] did he wish to answer any questions . . . and he
indicated no, he did not.” Defendant contends the State improperly
elicited this testimony from Officer Yeager. However, the
officer's testimony was not solicited by the prosecutor, but was
merely offered in response to a question requesting a chronology of
the events surrounding defendant's arrest. Moreover, the record
does not indicate that further reference was made at any other time
during the trial to defendant asserting his post-arrest right to
remain silent. Finally, as discussed earlier, there was strong
circumstantial evidence establishing defendant's guilt. Therefore,
any violation of defendant's constitutional right to remain silent
was
de minimis, resulting in defendant's argument being overruled.
See id.
IV.
Defendant also argues his sentence offends double jeopardy
because his convictions for possession of stolen goods andpossession of a stolen vehicle were both based on his possession of
the Suburban. We agree.
The Double Jeopardy Clauses of “[b]oth the Fifth Amendment to
the United States Constitution and Article I, Section 19 of the
North Carolina Constitution protect against multiple punishments
for the same offense.”
State v. Fernandez, 346 N.C. 1, 18, 484
S.E.2d 350, 361 (1997). When analyzing multiple offenses for
double jeopardy purposes, our United States Supreme Court has held
that “where the same act or transaction constitutes a violation of
two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether
each provision requires proof of an additional fact which the other
does not.”
Blockburger v. United States, 284 U.S. 299, 304, 76 L.
Ed. 306, 309 (1932). However, the presumption raised by what is
referred to as the
Blockburger test:
[I]s only a federal rule for determining
legislative intent as to violations of federal
criminal laws and is neither binding on state
courts nor conclusive. When utilized, it may
be rebutted by a clear indication of
legislative intent; and, when such intent is
found, it must be respected, regardless of the
outcome of the application of the
Blockburger
test.
State v. Gardner, 315 N.C. 444, 455, 340 S.E.2d 701, 709 (1986).
“The traditional means of determining the intent of the legislature
where the concern is only one of multiple punishments for two
convictions in the same trial include the examination of the
subject, language, and history of the statutes.”
Id. at 461, 340
S.E.2d at 712. In the case
sub judice, defendant was convicted of possession
of stolen property (the Suburban) pursuant to Section 14-71.1 and
possession of a stolen vehicle (the Suburban) pursuant to Section
20-106. As previously stated (and further detailed here):
The elements of a violation of G.S. 14-71.1
are: (1) possession of personal property, (2)
which has been stolen, (3) the possessor
knowing or having reasonable grounds to
believe the property was stolen, and (4) the
possessor acting with a dishonest purpose.
The elements of a violation of G.S. 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)
(citations omitted).
When considering the subject of these statutes, it is clear
that the Legislature sought to address a defendant's illegal
possession of another's property. Yet, the language of the
statutes clearly indicates their central focus is different because
one “requires proof of an additional fact which the other does
not.”
Blockburger, 284 U.S. at 304, 76 L. Ed. at 309. The offense
of possessing a stolen motor vehicle specifically requires a
finding that the stolen property being possessed was a motor
vehicle. Conversely, the offense of possessing stolen goods does
not require that one of the “goods” stolen was actually a motor
vehicle. Additionally, statutory history reveals Section 20-106
was enacted as part of the Motor Vehicle Act of 1937 to “discourage
the possession of stolen vehicles by one who knows it is stolen or
has reason to believe that it is stolen.”
State v. Rook, 26 N.C.App. 33, 35, 215 S.E.2d 159, 161 (1975). Sixty years later, our
Legislature neither amended nor repealed Section 20-106, choosing
instead to enact Section 14-71.1 to discourage the possession of
any stolen property regardless of whether that property was a motor
vehicle.
See generally State v. Perry, 305 N.C. 225, 287 S.E.2d
810 (1982). Thus, the distinctions in language and history between
the two statutes suggest the Legislature intended possession of
stolen goods and possession of a stolen vehicle to be separate
crimes.
The fact that these possession statutes represent two separate
and distinct offenses for which a defendant may be punished does
not mean however that he is so punishable when possession of the
same property is at issue. As our Supreme Court held in
Perry,
although “a defendant may be indicted and tried on charges of
larceny, receiving, and possession of the same property, [our
Legislature intended that he] be
convicted of only one of those
offenses.”
Id. at 236-37, 287 S.E.2d at 817 (emphasis added). The
Supreme Court reasoned that the Legislature did not intend to
punish a defendant for possessing or receiving the same property
which he himself stole.
Id. By analogizing
Perry to the present
case, we also reason that the Legislature did not intend to punish
a defendant for possession of the same property twice. Thus, while
defendant could have been indicted and tried pursuant to Section
20-106 and Section 14-71.1 based on his possession of the stolen
Suburban, he could only have been convicted once for possession of
it. Accordingly, since both possession statutes have the same
class and record level, we vacate defendant's conviction under
Section 14-71.1 because defendant's unlawful possession of a stolen
vehicle is exactly the type of crime Section 20-106 was enacted to
discourage.
V.
Finally, defendant argues the trial court erred in entering a
judgment against him based on his being an habitual felon.
Specifically, defendant contends he was never properly adjudicated
as an habitual felon because the trial court simply stated “[o]kay”
after going through a transcript of the plea with defendant.
Defendant further contends the judgment form contained fatal errors
because it failed to indicate defendant was adjudged an habitual
felon or that his punishment class was being enhanced from Class H
to Class C. Defendant asks this Court to remand his case to the
trial court with directions to vacate his habitual felon
adjudication and re-sentence him as a Class H felon.
With respect to defendant's first contention, this Court holds
that although a defendant's status as an habitual felon should be
determined by a jury, a defendant may chose to enter a guilty plea
to such a charge.
See State v. Gilmore, 142 N.C. App. 465, 471,
542 S.E.2d 694, 699 (2001). However, a trial court may not accept
a defendant's plea of guilty as an habitual felon without first
addressing the defendant personally and making the following
inquiries of that defendant as required by Section 15A-1022 of our
statutes: (1) Informing [the defendant] that he
has a right to remain silent and
that any statement he makes may be
used against him;
(2) Determining that he understands the
nature of the charge;
(3) Informing him that he has a right to
plead not guilty;
(4) Informing him that by his plea he
waives his right to trial by jury
and his right to be confronted by
the witnesses against him;
(5) Determining that the defendant, if
represented by counsel, is satisfied
with his representation;
(6) Informing him of the maximum
possible sentence on the charge for
the class of offense for which the
defendant is being sentenced,
including that possible from
consecutive sentences, and of the
mandatory minimum sentence, if any,
on the charge; and
(7) Informing him that if he is not a
citizen of the United States of
America, a plea of guilty or no
contest may result in deportation,
the exclusion from admission to this
country, or the denial of
naturalization under federal law.
N.C. Gen. Stat. § 15A-1022(a) (2001).
Here, the necessary inquiries needed to establish a record of
defendant's guilty plea were asked by the trial court, resulting in
defendant's guilt as an habitual felon being duly stipulated.
See
State v. Williams, 133 N.C. App. 326, 330, 515 S.E.2d 80, 83
(1999). The trial court's response of “[o]kay[,]” although not the
most legally appropriate word choice, signified the court's
approval of this stipulation when considering the word's plainmeaning.
See Webster's New Word Dictionary 418 (2nd ed. 1987).
Further, defendant's sentence clearly suggests he was adjudicated
an habitual felon because the sentence was within the presumptive
range for someone with a prior record level I convicted of a Class
C felony with a prior record level I and not a Class H felony.
See
N.C. Gen. Stat. § 15A-1340.17(c), (e) (2002).
Defendant's second contention pertains to the judgment form's
failure to indicate that he was adjudged an habitual felon or that
his punishment class was being enhanced to Class C. However, this
Court need not address this contention of defendant's because,
having vacated one of his convictions, we remand defendant's case
to the trial court for resentencing.
In conclusion, defendant was properly adjudicated as an
habitual felon, but erroneously convicted twice for possession of
the same stolen property. Thus, defendant's conviction of
possession of stolen goods must be vacated and his case remanded to
the trial court for resentencing.
Vacated in part and remanded for resentencing.
Judges McGEE and CALABRIA concur.
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