2. Possession of Stolen Property--felonious possession of stolen goods--motion to
dismiss--sufficiency of evidence--doctrine of recent possession
The trial court did not err by denying defendant's motion to dismiss the charge of
felonious possession of stolen goods even though defendant contends there was insufficient
evidence to show that he knew or had reasonable grounds to believe that the generator he
possessed had been stolen pursuant to a breaking and entering, because: (1) defendant's
possession of the generator shortly after its theft supported the instruction of the doctrine of
recent possession; (2) defendant offered no explanation at trial for his possession of the stolen
generator or his representation to another person that the generator belonged to him; and (3) from
the evidence presented, the jury could have believed that defendant did not actually break into or
enter the victim's storage shed, but was present and assisted in transporting the generator away
from the victim's property or otherwise aided and abetted in the taking of the property.
3. Sentencing--habitual felon--no contest plea
Although defendant contends the trial court erred in a felonious possession of stolen
goods case by accepting defendant's plea of no contest to the habitual felon charge, this
assignment of error is dismissed because defendant's argument is based entirely upon his
contention that the trial court erred by sentencing him for felonious possession of stolen goods,
and the Court of Appeals already rejected that contention.
Attorney General Roy Cooper, by Assistant Attorney General J.
Douglas Hill, for the State.
William D. Spence for defendant appellant.
WYNN, Judge.
Defendant David Michael McQueen appeals from judgment of thetrial court entered upon a jury verdict finding him guilty of
felonious possession of stolen goods, and upon his plea of no
contest to habitual felon status. Defendant argues the trial court
erred in denying his motions for a mistrial and to dismiss the
charges against him. Defendant further contends the trial court
improperly sentenced him for felonious possession of stolen goods
and habitual felon status. For the reasons hereafter stated, we
find no error by the trial court.
The State presented evidence at trial tending to show the
following: Alfred Mott testified he owned a storage shed located
on Mott Town Road in Atkinson, North Carolina, in which he stored
an electric generator. Mott described his machine as a 5200-watt
“blue generator” with a distinguishing scratch under the
carburetor. Mott stated he had paid $900.00 for the generator, and
that it was two years old.
In the late afternoon of 29 September
2001, Mott observed Defendant walking by as he worked with the
generator. At approximately 6:00 p.m., Mott finished his work,
placed the machine inside his storage shed, and locked the front
door. The storage shed, however, also contained double doors which
did not lock, but were secured only by a board. Mott testified
that “anybody [who] went in my shed . . . would [have known] that's
the way I lock[] it.”
When Mott returned to his storage shed the following morning,
the electric generator was gone. The front door to the storage
shed remained locked, but the double doors were not fully closed.
He noticed automobile tracks approximately 120 feet away from the
storage shed, but observed no markings on the ground to indicatethe generator had been dragged. Mott testified that “it seemed
like to me that [whoever broke into the storage shed] had to know
what they [were] doing, because they didn't tear my door down.”
Mott further explained he was “puzzled in my mind how in the world
one man can pick that big generator up and tote it that far, and
all I could do was to move it.”
Defense counsel cross-examined Mott extensively regarding his
cousin, Jerome Mott, who lived approximately two miles away from
where the storage shed was located. Mott confirmed that Jerome was
familiar with his storage shed and the method by which Mott secured
the double doors. Mott denied having suspected Jerome of being
involved in the disappearance of the generator, but testified that
Jerome was acquainted with “people who receive stolen goods.”
After he discovered the generator missing, Mott summoned the
sheriff's department, which located the generator several days
later with the assistance of Noel Brooks. Brooks testified that
Defendant came to his residence in the early morning hours of 30
September 2001 with an electric generator. Defendant asked Brooks
to loan him one hundred dollars for one week and offered the
generator as collateral for the loan. Defendant told Brooks the
generator belonged to him, and that he needed the money in order to
have his automobile repaired. Brooks loaned Defendant the money
and took the generator in exchange. Brooks suspected, however,
that the generator was possibly stolen and contacted a friend at
the sheriff's department a few days later. Mott identified the
generator given to Brooks by Defendant as the same generator taken
from his storage shed. Doris Jacobs Herring testified on behalf of Defendant.
Herring stated she and Defendant were installing carpet at their
residence the evening of 29 September 2001, and that Defendant did
not leave the house during that time. At 8:00 a.m. the following
morning, Herring observed Jerome Mott
approach Defendant while he
was standing outside the residence and state, “I want to see you.”
Herring agreed that it was “unusual for [Jerome] to be there that
early in the morning.” Herring shut the door of the residence and
did not observe any further interaction between Defendant and
Jerome. Defendant told Herring he was going to work and left the
residence soon afterwards. Herring never saw Defendant with a
generator.
Defendant was indicted on charges of felonious breaking or
entering, felonious larceny, felonious possession of stolen
property, and habitual felon status. Upon conclusion of the
evidence, the jury found Defendant not guilty of felonious breaking
or entering, but guilty of felonious larceny and felonious
possession of stolen goods. Defendant then entered a plea of no
contest to habitual felon status. The trial court arrested
judgment on the felonious larceny conviction and sentenced
Defendant to an active minimum term of imprisonment of eighty
months, with a maximum term of 105 months. Defendant appealed.
___________________________________________________
Defendant presents four assignments of error on appeal,
arguing the trial court erred by (1) denying Defendant's motion for
a mistrial; (2) denying Defendant's motion to dismiss the charges
against him; (3) sentencing Defendant for felonious possession ofstolen goods; and (4) sentencing Defendant for habitual felon
status. We find no error by the trial court.
[1] By his first assignment of error, Defendant argues the
trial court erred in denying his motion for a mistrial after Mott
testified that he “learned that [Defendant] was in prison.”
Defendant correctly notes that such evidence was inadmissible, and
he contends Mott's statement substantially and irreparably
prejudiced his case in the minds of the jurors. In light of such
prejudice, Defendant argues the trial court erred in failing to
declare a mistrial, thereby entitling him to a new trial. We do
not agree.
The trial court must declare a mistrial upon the defendant's
motion “if there occurs during the trial an error or legal defect
in the proceedings, or conduct inside or outside the courtroom,
resulting in substantial and irreparable prejudice to the
defendant's case.” N.C. Gen. Stat. § 15A-1061 (2003). The
decision to grant or deny the defendant's motion for a mistrial is
discretionary, and such a decision “is to be given great deference
because the trial court is in the best position to determine
whether the degree of influence on the jury was irreparable.”
State v. Hill, 347 N.C. 275, 297, 493 S.E.2d 264, 276 (1997), cert.
denied, 523 U.S. 1142, 140 L. Ed. 2d 1099 (1998).
A mistrial
should be declared only if there are serious improprieties making
it impossible to reach a fair and impartial verdict. State v.
McCarver, 341 N.C. 364, 383, 462 S.E.2d 25, 35-36 (1995), cert.
denied, 517 U.S. 1110, 134 L. Ed. 2d 482 (1996). “When a court
withdraws incompetent evidence and instructs the jury not toconsider it, any prejudice is ordinarily cured.” State v. Walker,
319 N.C. 651, 655, 356 S.E.2d 344, 346 (1987). Absent
circumstances indicating otherwise, jurors are presumed to follow
a trial court's instructions. McCarver, 341 N.C. at 384, 462
S.E.2d at 36.
In the instant case, the trial court immediately sustained
Defendant's objection to the inadmissible evidence and granted his
motion to strike. The trial court then instructed the jury that
Mott's statement was “inappropriate [and] inadmissible,” and stated
that “you are not to consider in any way his statement when you
adjudicate the facts in the case.” In light of the trial court's
curative instruction, we conclude the trial court did not abuse its
discretion in denying Defendant's motion for a mistrial. State v.
Morgan, 164 N.C. App. 298, 302, 595 S.E.2d 804, 808 (2004).
[2] Defendant next argues the trial court erred in denying his
motion to dismiss the charge of felonious possession of stolen
goods at the close of the State's evidence and again at the close
of all the evidence. Defendant contends the State presented
insufficient evidence that he knew or had reasonable grounds to
believe that the generator he possessed had been stolen pursuant to
a breaking and entering.
The standard for ruling on a motion to dismiss is “whether
there is substantial evidence (1) of each essential element of the
offense charged and (2) that defendant is the perpetrator of the
offense.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814
(1990). Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).
The trial court must consider the evidence in the light most
favorable to the State, giving the State the benefit of every
reasonable inference that might be drawn therefrom. State v.
Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). The test for
sufficiency of the evidence is the same regardless of whether the
evidence is circumstantial or direct. State v. Earnhardt, 307 N.C.
62, 68, 296 S.E.2d 649, 653 (1982). We must therefore determine
whether there was substantial evidence to support the essential
elements of felonious possession of stolen property.
The essential elements of felonious possession of stolen
property are: (1) possession of personal property, (2) which was
stolen pursuant to a breaking or entering, (3) the possessor
knowing or having reasonable grounds to believe the property to
have been stolen pursuant to a breaking or entering, and (4) the
possessor acting with a dishonest purpose. See N.C. Gen. Stat. §§
14-71.1, 14-72(c) (2003); State v. Hargett, 148 N.C. App. 688, 691,
559 S.E.2d 282, 285 (2002). Defendant takes issue with the third
element, contending there was insufficient evidence to demonstrate
that he knew or should have known the property had been stolen
pursuant to a breaking or entering.
In order to show that Defendant knew or had reasonable grounds
to believe the generator was stolen pursuant to a breaking or
entering, the State relied on the doctrine of recent possession.
The doctrine of recent possession is a rule of law creating the
presumption that a person in possession of recently stolen property
is guilty of its wrongful taking and of the unlawful entryassociated with that taking. State v. Hamlet, 316 N.C. 41, 44-45,
340 S.E.2d 418, 420 (1986);
State v. Walker, 86 N.C. App. 336, 338,
357 S.E.2d 384, 386 (1987), affirmed per curiam, 321 N.C. 593, 364
S.E.2d 141 (1988). “'The presumption is strong or weak depending
upon the circumstances of the case and the length of time
intervening between the larceny of the goods and the discovery of
them in the defendant's possession.
'” Hamlet, 316 N.C. at 44, 340
S.E.2d at 420 (quoting State v. Maines, 301 N.C. 669, 673-74, 273
S.E.2d 289, 293 (1981)). “The presumption or inference arising
from recent possession of stolen property 'is to be considered by
the jury merely as an evidential fact, along with the other
evidence in the case, in determining whether the State has carried
the burden of satisfying the jury beyond a reasonable doubt of the
defendant's guilt.'” Maines, 301 N.C. at 674, 273 S.E.2d at 293
(quoting State v. Baker, 213 N.C. 524, 526, 196 S.E. 829, 830
(1938)
).
For the doctrine of recent possession to apply, the State must
show: (1) the property was stolen, (2) defendant had possession of
the property, subject to his control and disposition to the
exclusion of others, and (3) the possession was sufficiently recent
after the property was stolen, as mere possession of stolen
property is insufficient to raise a presumption of guilt
. State v.
Barnes, 345 N.C. 184, 240, 481 S.E.2d 44, 75 (1997), cert. denied,
523 U.S. 1024, 140 L. Ed. 2d 473 (1998); Hargett, 148 N.C. App. at
692, 559 S.E.2d at 285.
As to recency, our Supreme Court has
stated that
[a]lthough the passage of time between the
theft and the discovery of the property in aperson's possession is a prime consideration
in establishing whether property has recently
been stolen, our North Carolina Courts have
also recognized that the nature of the
property is a factor in determining whether
the recency is sufficient to raise a
presumption of guilt. Thus, if the stolen
property is of a type normally and frequently
traded in lawful channels, a relatively brief
time interval between the theft and the
finding of an accused in possession is
sufficient to preclude an inference of guilt
from arising. Conversely, when the article is
of a type not normally or frequently traded in
lawful channels, then the inference of guilt
may arise after the passage of a longer period
of time between the larceny of the goods and
the finding of the goods in the accused's
possession.
Hamlet, 316 N.C. at 43-44, 340 S.E.2d at 420.
Here, the State presented substantial evidence from which the
jury could find that (1) the generator belonging to Mott was stolen
from his storage shed pursuant to a breaking or entering; (2)
Defendant offered and Brooks accepted the stolen generator as
collateral for a $100.00 loan; and (3) Defendant was in exclusive
possession of the stolen generator the morning following its theft.
We conclude that Defendant's possession of the generator shortly
after its theft supported the instruction of the doctrine of recent
possession and the denial of Defendant's motion to dismiss. See
Hargett, 148 N.C. App. at 691-92, 559 S.E.2d at 285 (upholding the
use of the doctrine of recent possession to show there was
sufficient evidence that the defendant knew or should have known
the property was stolen pursuant to a breaking or entering in
support of charge of felonious possession of stolen property).
Defendant argues the doctrine of recent possession is
inapplicable to the crime of felonious possession of stolenproperty and cannot support his conviction. In a related argument,
Defendant contends that, as the jury found him not guilty of
breaking or entering, he could not be convicted of felonious
possession of stolen property, because there was no evidence that
he knew the property had been taken pursuant to a breaking or
entering. We do not agree.
Although the jury found Defendant not guilty of breaking or
entering, it found him guilty of felonious larceny, a conviction
later arrested by the trial court. Mott testified he believed only
a person familiar with the storage shed would have known his method
of securing the double doors, and he doubted a single man could
have transported the generator without assistance. Defendant was
in possession of the generator the morning following its theft, and
he represented to Brooks that the generator belonged to him.
Herring testified that Jerome Mott, a person familiar with Mott's
storage shed, appeared at Defendant's residence earlier that same
morning in order to talk to him, a circumstance Herring confirmed
as unusual. Defendant offered no explanation at trial for his
possession of the stolen generator or his representation to Brooks
that the generator belonged to him.
From the evidence presented, the jury could have believed that
Defendant did not actually break into or enter Mott's storage shed,
but was present and assisted in transporting the generator away
from Mott's property, or otherwise aided and abetted in the taking
of the property. See State v. Curry, 288 N.C. 312, 319, 218 S.E.2d
374, 378 (1975) (upholding the defendant's conviction of felonious
larceny where the jury acquitted the defendant of breaking orentering and holding that the jury's not guilty verdict on the
breaking or entering count was not necessarily a finding by the
jury that the larceny was not committed by the defendant pursuant
to a breaking or entering, where there was evidence that the
defendant aided and abetted two other men in a larceny they
committed pursuant to a breaking or entering by them, but did not
aid or abet them in the breaking or entering).
Notably, the jury
sent an inquiry to the trial court during deliberations requesting
further instruction on whether the “defendant [had] to perpetrate
the [breaking or entering] or just know the property was obtained
through a [breaking or entering] . . . to be found guilty of
felonious larceny[?]” From this inquiry and the ultimate verdict,
it is clear the jury believed Defendant did not perpetrate the
breaking or entering, but that he nevertheless knew the generator
had been stolen by means of a breaking or entering, and had
participated in its larceny.
We conclude there was substantial
evidence to support the jury's finding that Defendant was guilty of
felonious possession of stolen property.
[3] By his final assignment of error, Defendant contends the
trial court erred in accepting a plea of no contest to the habitual
felon charges. As Defendant's argument is based entirely upon his
earlier contention that the trial court erred in sentencing him for
felonious possession of stolen goods, we necessarily reject this
assignment of error.
In the judgment of the trial court we find,
No error.
Judges CALABRIA and LEVINSON concur.
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