State v Whitehurst, (02-985) 06/17/2003

Appeal by defendant from judgment entered 15 November 2001 by Judge Jerry R. Tillet in Superior Court, Pasquotank County. Heard in the Court of Appeals 20 May 2003.

Attorney General Roy Cooper, by Assistant Attorney General Elizabeth J. Weese, for the State.

Hosford & Hosford, P.L.L.C., by Geoffrey W. Hosford, for the defendant-appellant.

    WYNN, Judge.

    From convictions for robbery with a dangerous weapon, second degree kidnapping, and possession of a firearm by a felon, defendant, Larry Terrell Whitehurst, appeals and assigns error to the trial court's (1) denial of his motion to dismiss, (2) denial of his motion to suppress, and (3) jury instruction on the doctrine of recent possession. We find no error.
    At trial, the State's evidence tended to show that on 13 December 2000, a masked man entered the Southern Pig Barbeque Restaurant in Elizabeth City, North Carolina. The man held a gunto the head of Catherine Howell, an employee, and demanded access to the cash register. When Ms. Howell could not open the register, the man forced her into the back of the restaurant. Thereafter, the masked man, holding the gun to Ms. Howell's neck, demanded that Dorothy and Thomas Kerring, the owners of the Southern Pig, open the cash register or he would “blow [Ms. Howell's] head off.” Ms. Kerring opened the register, gave the man the cash, and allowed the man to take a roll of quarters wrapped in plastic. Thereafter, the man forced Ms. Kerring to open another register, wherein the man obtained more cash, including a $50 bill that Ms. Howell had marked with a special yellow pen earlier in the day.
    After the robber left the Southern Pig, Mr. Kerring called 911 and described the robber as a masked man, with a mustache, about 5'10" to 6'1" tall. Upon arriving at the scene, Ms. Howell told an Elizabeth City Police Detective, Robin Vanscoy, that through the mask she noticed that the robber was an African-American male with a mustache. Furthermore, Ms. Howell described the assailant as 5'8", wearing a black-leather coat, a blue-fleece shirt, brand-new blue jeans, gloves, thick boots, and carrying a silver gun with a black handle.
    Meanwhile, the detectives went to a housing project near the Southern Pig and noticed defendant, dressed in all dark clothing, get out of a taxi cab. Defendant made two trips up and down the apartment building stairs, at which time Officer John Ethridge approached defendant and initiated a conversation. After a short conversation in which Officer Ethridge questioned the veracity ofdefendant's identity, defendant fled on foot. Upon apprehending defendant, Officer Ethridge conducted a “pat-down” and discovered $100 in various denominations in defendant's pockets, including a $50 bill marked with a yellow pen.
    After placing defendant under arrest, Officers Edwards and Vanscoy went to an apartment rented by Denise Riddick where defendant was known to have stayed the previous night. Inside the apartment, the officers discovered a plastic coin wrapper and a receipt tape. Furthermore, Ms. Riddick told the officers that she had packed up a suitcase of defendant's belongings and taken it to defendant's aunt's house. Ms. Riddick told the officers that the suitcase contained a silver gun and clothing.
    At trial, various witnesses identified defendant as well as the gun, clothing, plastic coin wrapper, and receipt tape, as involved in the 13 December 2000 robbery of the Southern Pig. Upon hearing the evidence, arguments from counsel, and instructions from the court, the jury returned a verdict of guilty on all counts. The court sentenced defendant to a combined term of between 313 months and 400 months imprisonment.
    On appeal, defendant first contends the trial court committed reversible error in denying his motion to dismiss. Defendant does not contend the State failed to produce sufficient evidence of each element of the offenses charged. Instead, defendant argues “the State failed to prove that Larry Whitehurst [was] the man who committed this robbery.” In support of this proposition, defendant relies on Ms. Howell's (1) assertion that the masked man had apermanent mark beneath his eye, whereas defendant does not have such a mark, (2) description of the assailant as 5'8", whereas defendant is 6'0", and (3) her inability to determine, with absolute certainty, that the clothing items presented by the State were the exact items worn by the robber.
    “In ruling on a motion to dismiss for insufficient evidence, the trial court must consider the evidence in the light most favorable to the State, which is entitled to every reasonable inference which can be drawn from that evidence.” State v. Dick, 126 N.C. App. 312, 317, 485 S.E.2d 88, 91 (1997). “Any contradictions or discrepancies in the evidence are for the jury to resolve and do not warrant dismissal.” State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). Furthermore, on a motion to dismiss “the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged . . . and (2) of defendant's being the perpetrator of such offense.” State v. Brayboy, 105 N.C. App. 370, 373-74, 413 S.E.2d 590, 592 (1992). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Williams, 133 N.C. App. 326, 328, 515 S.E.2d 80, 82 (1999) (citation omitted).
    In this case, the State presented overwhelming evidence that defendant robbed the Southern Pig on 13 December 2000. For instance, when asked by counsel how certain she was that defendant was the robber, Ms. Howell testified: “I'm sure. I'm absolutely one hundred percent positive.” Furthermore, when arrested byOfficer Ethridge, a $50 bill was discovered in defendant's pocket, and the $50 bill bore a yellow pen mark that Ms. Howell identified as the one she made on that bill earlier in the day. Finally, items taken from the Southern Pig, as well as a distinctive silver pistol, were found in defendant's suitcase and temporary residence. The silver pistol was identified by Ms. Howell and the Kerrings, from a lineup containing six guns, as the gun used in the robbery. Likewise, the items discovered at defendant's temporary residence, which included clothing, a white bag, a coin wrapper taken from the register, and the register tape, were all positively identified by Ms. Howell and the Kerrings. We hold that this was substantial evidence from which a reasonable mind could conclude that defendant was the individual who robbed the Southern Pig on 13 December 2000. Accordingly, the trial court did not commit error in denying defendant's motion to dismiss.
    Defendant next contends the trial court committed reversible error by denying his motion to suppress the coins and currency obtained by Officer Ethridge in searching defendant's body. According to defendant, Officer Ethridge did not have a “reasonable suspicion” that defendant was involved in criminal activity, and, therefore, his search was unconstitutional. However, we hold, for reasons stated herein, that defendant failed to preserve his right to contest the admissibility of this evidence on appeal.
    “Chapter 15A, Article 53, of the General Statutes sets forth the exclusive method for challenging evidence on the ground that its exclusion is constitutionally required.” State v. Maccia, 311N.C. 222, 227, 316 S.E.2d 241, 244 (1984); see also N.C. Gen. Stat. § 15A-975. “The defendant has the burden of showing that he has complied with the procedural requirements of Article 53.” Maccia, 311 N.C. at 227, 316 S.E.2d at 244. “In Superior Court a 'defendant may move to suppress evidence only prior to trial' unless he falls within certain exceptions.” Id. (citing N.C. Gen. Stat. § 15A-975). “When no exception to the general rule applies, failure to make a timely motion to suppress prior to trial is a waiver of any right to contest the inadmissibility of evidence on constitutional grounds.” Maccia, 311 N.C. at 228, 316 S.E.2d at 244.
    In this case, the record reflects that defendant did not make a pre-trial motion to exclude the evidence. Moreover, our review of the record indicates that no exceptions apply. Therefore, we hold that defendant waived his right to contest the admission of the coins and currency found on his body at the time of his arrest.
    By his final argument, defendant contends the trial court committed reversible error by instructing the jury on the doctrine of recent possession. As defendant did not object to this instruction at trial, our appellate review of this assignment error is limited to a “plain error” analysis. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). As our Supreme Court noted in Odom, “when the 'plain error' rule is applied, 'it is the rare case in which an improper instruction will justify reversal of a criminal conviction.” Id. at 660-61, 300 S.E.2d at 378.
    In this case, we hold that the State presented sufficientevidence that defendant perpetrated the robbery under the doctrine of recent possession. “This doctrine allows the jury to infer that the possessor of the stolen property is guilty of its taking.” State v. Reid, 151 N.C. App. 379, 382, 565 S.E.2d 747, 750 (2002) (citation omitted). “The doctrine of recent possession applies where the State can prove three things: (1) that the property was stolen; (2) that the defendant had possession of this stolen property . . . ; and (3) 'that the defendant had possession of this property so soon after it was stolen and under such circumstances as to make it unlikely that he obtained possession honestly.'” Id. (citations omitted).
    Defendant argues that the instruction was erroneous because the State failed to present sufficient evidence that he had “possession” of the stolen property. As defendant concedes, constructive possession is sufficient to support the possession requirement of the doctrine. See e.g., State v. Osborne, 149 N.C. App. 235, 562 S.E.2d 528, aff'd by 356 N.C. 424, 571 S.E.2d 584 (2002) (holding that “trial court did not err in instructing the jury as to the doctrine of recent possession based upon evidence of defendant's constructive possession of the property.”). Accordingly, to support the element of possession under the doctrine of recent possession, actual physical possession of the property is not necessary. State v. Perry, 316 N.C. 87, 96, 340 S.E.2d 450, 456 (1986). “Evidence of constructive possession is sufficient to support a conviction if it would allow a reasonable mind to conclude that defendant had the intent and capability toexercise control and dominion over the” stolen property. State v. Carr, 122 N.C. App. 369, 372, 470 S.E.2d 70, 73 (1996). “Where a defendant does not have exclusive possession of the place where the [stolen property is] found, the State must show other incriminating circumstances before constructive possession may be inferred.” State v. Butler, 147 N.C. App. 1, 11, 556 S.E.2d 304, 311 (2001). This Court has consistently emphasized that “constructive possession depends on the totality of the circumstances in each case.” Id.; State v. Jackson, 103 N.C. App. 239, 243, 405 S.E.2d 354, 357 (1991).
    In this case, the stolen items were found in the residence of Denise Riddick and in a suitcase. Denise Riddick testified that defendant stayed in her apartment on the night of 12 December 2000. On the morning of 13 December 2000, Ms. Riddick gave defendant a key to her apartment. Ms. Riddick testified that no one else had a key to her apartment and that usually the apartment is locked. During the course of the day, Ms. Riddick heard about the robbery at the Southern Pig. Upon returning to her apartment, Ms. Riddick noticed that her apartment was messy and that defendant's suitcase was in her son's room. Suspecting something unusual, Ms. Riddick opened the suitcase and discovered a silver gun and other items. Upon discovering the silver gun, Ms. Riddick took the suitcase to defendant's aunt's house. After returning from defendant's aunt's house, the police were waiting for Ms. Riddick at her apartment. In the apartment, Officer Vanscoy discovered a plastic coin wrapper and a receipt tape which were both later identified by Ms. Kerringas items stolen from the cash register at the Southern Pig. Furthermore, the silver gun, as well as other items in the suitcase, were also identified as belonging to the robber.
    Based upon the totality of the circumstances, we hold that this evidence was sufficient to establish the incriminating circumstances necessary to infer constructive possession where a defendant does not have exclusive possession of the place where stolen property is found. See State v. Osborne, 149 N.C. App. 235, 562 S.E.2d 528, aff'd by 356 N.C. 424, 571 S.E.2d 584 (2002). Therefore, the trial court did not commit error, and this assignment of error is overruled.
    No Error.
    Judges McCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

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