An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-97


Filed: 1 June 2004


v .                         Forsyth County
                            Nos. 01 CRS 36355, 01 CRS 26882,
KENNETH DEAN FRYE                 01 CRS 60883, 01 CRS 60886

    Appeal by defendant from judgment dated 14 August 2002 by Judge L. Todd Burke in Superior Court, Forsyth County. Heard in the Court of Appeals 24 February 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Edwin L. Gavin II, for the State.

    Allen W. Boyer for defendant-appellant.

    McGEE, Judge.

    Kenneth Dean Frye (defendant) was convicted on 14 August 2002 of two counts of breaking or entering a motor vehicle in violation of N.C. Gen. Stat. § 14-56, two counts of possession of stolen goods in violation of N.C. Gen. Stat. § 14-71.1, and two counts of attempt to obtain property by false pretenses in violation of N.C. Gen. Stat. § 14-100. Defendant stipulated to his status as an habitual felon. The trial court entered judgment, finding defendant to have a prior record level III, and sentenced defendant to a minimum term of 115 months and a maximum term of 147 months in prison. Defendant appeals.

    The State's evidence at trial tended to show that at 7:00 a.m.on 26 October 2001, Paul Lynn Estes (Lynn Estes), William Estes, and Charles Rogers (Rogers), three workers employed by I.L. Long Construction Company, arrived in separate vehicles at their Lawrence Joel Coliseum work site in Winston-Salem, North Carolina. Lynn Estes testified that he had tools locked in his truck but William Estes failed to lock the tools that were in his truck. Lynn Estes also testified that on that morning, he and William Estes had all of their "regular tools," including a miter box saw and a reciprocating saw. Rogers, a superintendent with the construction company, testified that he arrived at the work site at the same time as Lynn Estes and William Estes. Rogers arrived in a company truck which had a tool box located behind the cab. The tool box contained a socket set. Rogers further testified that between 10:00 and 10:15 a.m., he noticed "William's lid up on his truck."     William Estes testified that around 10:30 a.m., he noticed that the camper lid to his truck was open and asked his employees whether any of them had been to his truck. The employees responded negatively. William Estes went to his truck and discovered that his miter box saw and reciprocating saw were missing.
Lynn Estes testified that after William Estes discovered the missing tools, William Estes told him to go to the pawn shop across the street from the work site in an attempt to catch the person who took the tools. Lynn Estes entered the pawn shop at about 10:45 a.m. and saw defendant at the counter trying to sell a miter box saw, a reciprocating saw, and a black socket set that he recognizedas belonging to Rogers. Lynn Estes saw defendant's driver's license on the counter. He approached defendant and they had a "conflict" about the tools which Lynn Estes described as "[p]retty heated." Lynn Estes told defendant the tools belonged to him and William Estes, but defendant denied knowing what Lynn Estes was talking about. Defendant attempted to run from the store but Lynn Estes "grabbed him by the back of the neck." However, defendant left the scene before police arrived.
    William Estes testified that he and Rogers went to the pawn shop after Lynn Estes called to tell them he had found the tools there. Rogers testified that when he arrived at the pawn shop, he saw his socket set "on top of the table there."
    Alan Belanoff (Belanoff), an employee of Cash America Pawn (Cash America), testified that he was working at Cash America the morning of 26 October 2001. Belanoff testified that defendant came into Cash America with tools to pawn for a loan. Belanoff testified that a man entered Cash America and "got kind of loud and started protesting" because the man claimed the tools that defendant was attempting to pawn belonged to him. Belanoff declined to give defendant a loan and defendant left "[i]n a hurry."
    Officer J.E. Gomez (Officer Gomez) of the Winston-Salem Police Department testified that on 26 October 2001, he was patrolling the north side of the city which includes the Lawrence Joel Coliseum area. As he pulled into a shopping center parking lot, Lynn Estes ran to his vehicle and pointed to a Jeep Grand Cherokee and statedthat the individuals inside that vehicle had just attempted to pawn some stolen tools. Officer Gomez stopped the vehicle and three men, none of whom was defendant, were in the vehicle. On cross- examination, Officer Gomez stated that two of the three men in the vehicle were arrested after being identified by Lynn Estes at a show-up.
    Senior Police Officer Penny Kearns (Officer Kearns) of the Winston-Salem Police Department testified that she was also patrolling the Lawrence Joel Coliseum area on the morning of this incident. She first responded to assist Officer Gomez with the vehicle stop, and then she proceeded to the pawn shop to investigate. Officer Kearns testified that she interviewed both Lynn Estes and Rogers simultaneously. She determined that the tools at the pawn shop did belong to Lynn Estes and Rogers. Officer Kearns testified that Lynn Estes told her he encountered defendant inside the pawn shop and had subsequently chased him outside but that defendant had left the area prior to her arrival. She testified that defendant was arrested later that evening.
Officer Gerald Lovejoy (Officer Lovejoy) of the Winston-Salem Police Department testified that he worked the evening shift on 26 October 2001 and was told by Officer Kearns that there was a warrant for defendant regarding the vehicle break-in. Officer Lovejoy arrested defendant at the home of defendant's mother later that evening. Officer Lovejoy testified concerning the conversation he had with defendant about what had happened that day. Defendant relayed three versions of what happened on 26October 2001. Defendant first claimed not to know the tools had been stolen. Defendant then stated to Officer Lovejoy that he had been told that the tools had been "stolen from a construction truck on the south side of town." Lastly, defendant told Officer Lovejoy that the tools had been stolen from the construction site across the street from Cash America.
Defendant testified on his own behalf and stated that "[a]round ten o'clock" on 26 October 2001, he had been to the store for his mother. When he returned from the store "around 10:30[,]" three men were at his mother's house with a set of tools he had never seen. There was a discussion about pawning the tools and one of the men, Johnny Lowell (Lowell), asked defendant if he would pawn them. Lowell's driver's license had been stolen so he wanted defendant to pawn the tools for him. Defendant testified that Lowell told him the tools belonged to him. Defendant took the tools to the pawn shop and Lynn Estes entered and said the tools belonged to him. Defendant testified that he told the pawn shop worker that he knew nothing about the tools being stolen. Defendant testified that the men he was with took off running so he tried to flee as well but was stopped by Lynn Estes.
Defendant first argues in assignment of error number one that the trial court erred when it failed to provide the jury with a curative instruction following unresponsive and prejudicial testimony of Officer Lovejoy. The following exchange occurred between the State and Officer Lovejoy:
        Q: And as I understand it, when you came on duty that day you were informed by OfficerKearns there was a warrant for this defendant with respect to the auto break-in, is that correct?

        A: Yes.

        Q: And what if anything did you do to serve that warrant?

        A: Well, when she told me it was Kenneth Frye, I've had prior dealings with Kenneth Frye.

Defendant's objection and motion to strike were sustained by the trial court. However, defendant did not request a curative instruction and the trial court did not provide such an instruction. Defendant argues that the trial court's failure to instruct the jury to disregard the statement amounted to plain error. For the reasons stated below, we disagree.
        "[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a 'fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,' or 'where [the error] is grave error which amounts to a denial of a fundamental right of the accused,' or the error has '"resulted in a miscarriage of justice or in the denial to appellant of a fair trial"' or where the error is such as to 'seriously affect the fairness, integrity or public reputation of judicial proceedings' or where it can be fairly said 'the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.'"

State v. Holbrook, 137 N.C. App. 766, 767-68, 529 S.E.2d 510, 511 (2000) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982) (footnotes omitted) (emphasis in original)). Under plain erroranalysis, "'[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.'" Odom, 307 N.C. at 661, 300 S.E.2d at 378 (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203, 212 (1977)). In determining whether a defect in the jury instruction amounts to plain error, "the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt." Odom, 307 N.C. at 661, 300 S.E.2d at 379. In the case before our Court, a review of the whole record does not reveal plain error.
    The State presented testimony of the three men whose tools were stolen from their trucks at the job work site. The men testified that the tools were in their trucks the morning of 26 October 2001. However, when they noticed that the camper lid on William Estes' truck was open, an investigation revealed missing tools. Subsequently, Lynn Estes testified that he went to the nearby pawn shop and encountered defendant attempting to pawn the tools belonging to the three men. This testimony was corroborated by Belanoff who testified that defendant attempted to pawn the tools at Cash America. In addition, the State presented the testimony of several police officers who investigated the incident and confirmed that the tools belonged to Lynn Estes, William Estes, and Rogers.
    Defendant's evidence consisted solely of his own testimony. Defendant admitted attempting to pawn the tools but asserted that he did not know the tools were stolen. Defendant's testimony wascontradicted by the State's witnesses. Defendant was also impeached by his criminal history which included convictions for indecent liberties with a minor, forging and uttering a check, felony breaking and entering, and felony larceny, among other things. On this record, we do not find that the trial court's failure to give a curative instruction was plain error. Accordingly, this assignment of error is overruled.
    Defendant next argues in assignment of error number two that the trial court erred in denying his motion to reopen the evidence to allow the testimony of a defense witness who arrived after the close of all the evidence. Defendant asserts in his brief that if Willis Smith (Smith) had been allowed to testify, Smith would have corroborated defendant's assertion that Lowell had told defendant that the tools belonged to Lowell. However, nothing in the record reveals what testimony Smith would have given.
    Under the North Carolina Rules of Evidence, in order to predicate error upon the exclusion of evidence, the substance of the evidence must be "made known to the court by offer" or must be "apparent from the context within which questions were asked." N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) (2003). In the case before this Court, defendant made no offer of proof regarding the testimony Smith would have given and the substance of the testimony was not apparent from the context. Accordingly, defendant has failed to preserve this issue for appellate review. See State v. Braxton, 352 N.C. 158, 208, 531 S.E.2d 428, 457 (2000), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001); State v. Atkins,349 N.C. 62, 79, 505 S.E.2d 97, 108 (1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999).
    Defendant last argues in assignment of error number three that he was denied effective assistance of counsel because his attorney failed to inform the trial court that defendant expected another witness to testify on his behalf. Defendant's argument is based on the fact that when the trial court denied defendant's motion to reopen the case to allow additional testimony, the trial court indicated that had it been informed at the outset that defendant had another potential witness, it would have granted a recess so the witness could be located. However, when asked at the beginning of defendant's case how many witnesses the defense intended to call, defendant's counsel responded, "[r]ight now, one." As a result, the trial court denied the motion to reopen the case and Smith, defendant's late-arriving, allegedly corroborating witness, was not allowed to testify. Defendant contends that this amounts to ineffective assistance of counsel. However, for the reasons stated below, we disagree.
        In order to prevail on an ineffective assistance of counsel claim, a defendant must satisfy a two-prong test. "First, he must show that counsel's performance fell below an objective standard of reasonableness. Second, . . . he must show that the error committed was so serious that a reasonable probability exists that the trial result would have been different absent the error." State v. Blakeney, 352 N.C. 287, 307-08, 531 S.E.2d 799, 814-15 (2000), cert. denied, 531 U.S. 1117, 148 L. Ed. 2d 780 (2001) (citing Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984) and State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985)).
State v. Stroud, 147 N.C. App. 549, 555, 557 S.E.2d 544, 547-48 (2001), cert. denied, 356 N.C. 623, 575 S.E.2d 758 (2002). Pertaining to the second prong, "'[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v. Quick, 152 N.C. App. 220, 222, 566 S.E.2d 735, 737 (quoting Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698), disc. review denied, 356 N.C. 311, 570 S.E.2d 896 (2002).
    As discussed above, there is significant evidence of defendant's guilt based on the testimony of the three men whose tools were stolen, the police officers who responded to the theft, and defendant's own admission that he attempted to pawn the tools. Furthermore, the "doctrine of recent possession of stolen goods as recognized by [the North Carolina Supreme Court] allows the raising of an inference that the possessor is guilty of breaking and entering and larceny. It is an evidentiary circumstance to be considered by the jury along with all other circumstances." State v. Muse, 280 N.C. 31, 39, 185 S.E.2d 214, 219 (1971), cert. denied, 406 U.S. 974, 32 L. Ed. 2d 674 (1972).
        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, possession being that "'he is aware of its presence and has, either by himself or together with others, both the power and intent to control its disposition or use'"; 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.'"

State v. Reid, 151 N.C. App. 379, 382, 565 S.E.2d 747, 750 (quotingState v. Pickard, 143 N.C. App. 485, 487-88, 547 S.E.2d 102, 104, disc. review denied, 354 N.C. 73, 553 S.E.2d 210 (2001)) (additional citations omitted), disc. review denied, 356 N.C. 622, 575 S.E.2d 522 (2002). The above review of the evidence establishes that the tools were stolen and that defendant was in possession of the stolen tools shortly after they were discovered missing. The required elements were satisfied so an inference of defendant's guilt is permissible.
    Again, we note that defendant failed to make an offer of proof concerning Smith's testimony. However, even assuming Smith's testimony would have been as defendant projected in his brief, Smith's testimony would not have overcome the State's evidence. Thus, defendant cannot meet the requirements for an ineffective assistance of counsel claim, and this assignment of error is overruled.
    No error.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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