An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1373


Filed: 1 July 2003


         v.                        Guilford County
                                No. 00 CRS 23626

    Appeal by defendant from judgment entered 24 April 2002 by Judge Ronald E. Spivey in Superior Court, Guilford County. Heard in the Court of Appeals 30 June 2003.

    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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