STATE OF NORTH CAROLINA
v. Guilford County
No. 00 CRS 23626
LARRY DUCKWORTH,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Claud R. Whitener, III, for the State.
Kay S. Murray for defendant-appellant.
WYNN, Judge.
Defendant, Larry Duckworth, presents the following issues on
appeal: (I) Did the trial court erroneously deny his motion to
dismiss based upon insufficient evidence identifying him as one of
the perpetrators; and, (II) Was the trial court's denial of his
motion to set aside the verdict an abuse of its discretion because
the state failed to establish defendant possessed the stolen
vehicle in this state. We find no error in defendant's trial.
The pertinent facts tend to show that on 2 August 1999, two
men approached Dustin Pelkey in Greensboro as he closed the sunroof
on his 1990 Acura Legend automobile. One of the men ordered Mr.
Pelkey to drop his car keys on the seat, remove his necklace, and
empty his pockets into the driver's seat of the vehicle. Mr.Pelkey complied when the man displayed a gun. The other man, who
had a gun under his jacket, took Mr. Pelkey's money clip.
Thereafter, the men ordered Mr. Pelkey to walk behind a dumpster,
and drove away in his vehicle.
Ten days later, Mr. Pelkey's vehicle was located in Baltimore,
Maryland, bearing a stolen New Jersey license plate. The vehicle
which had been burned, was occupied by defendant at the time it
caught fire; defendant was critically injured in the blaze.
After a trial, defendant was acquitted of the charge of
robbery with a dangerous weapon, and convicted of the charge of
felonious possession of stolen property. From his conviction and
sentence to a minimum term of 15 months and a maximum term of 18
months, he appeals.
On appeal, defendant contends the trial court erred by denying
his motion to dismiss for insufficient evidence. In ruling on a
motion to dismiss, the trial court determines whether the State has
presented substantial evidence of each element of the offense and
of perpetration of the offense by the accused. State v. Small, 328
N.C. 175, 180, 400 S.E.2d 413, 415 (1991). The court must examine
the evidence in the light most favorable to the State, giving it
the benefit of every reasonable inference that may be drawn from
the evidence. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756,
761 (1992). If the evidence is sufficient to allow the jury to
draw a reasonable inference of defendant's guilt of the crime
charged, then the case should be submitted to the jury. State v.
Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652 (1982). Defendant argues the evidence is insufficient to identify him
as one of the perpetrators of the offense. We disagree. At trial,
Mr. Pelkey identified defendant as one of the two men who took the
vehicle from him. The credibility and weight to be given his
identification testimony were for the jury to resolve. State v.
Turner, 305 N.C. 356, 363, 289 S.E.2d 368, 372 (1982). Thus, we
hold the court properly denied the motion to dismiss.
Defendant also contends that the trial court erred by denying
his motion to set aside the verdict on the ground the evidence
failed to establish he possessed the stolen vehicle in North
Carolina. A motion to set aside the verdict is addressed to the
sound discretion of the trial court. State v. McNeil, 280 N.C.
159, 162, 185 S.E.2d 156, 157-58 (1971). We find no abuse of
discretion. Mr. Pelkey's testimony that defendant and his
accomplice took the vehicle in Greensboro and drove it away is
sufficient to show defendant possessed the stolen vehicle in North
Carolina.
In sum, we hold defendant received a fair trial, free of
prejudicial error.
No error.
Judges TYSON and STEELMAN concur.
Report per Rule 30(e).
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