An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-246


Filed: 2 March 2004


v .                         Mecklenburg County
                            No. 00 CRS 49631

    Appeal by defendant from judgment entered 31 July 2002 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 2 December 2003.

    Attorney General Roy Cooper, by Assistant Attorney General, Kathryn J. Thomas, for the State.

    Geoffrey W. Hosford for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Lawrence Del Byous was tried before a jury at the 29 July 2002 Criminal Session of Mecklenburg County Superior Court after being charged with one count of larceny of a motor vehicle and one count of first-degree burglary. The State's evidence showed the following: Billy Joe Earwood lived at 5100 Tracewood Court in Charlotte, North Carolina. On 12 November 2000, Earwood left work between five and six o'clock. He drove home, backed his 2000 Dodge Durango truck into his garage, and entered his house through a door that connects the house to the garage. Earwood left his briefcase and keys in the truck. Around ten o'clock, he locked the doors, but left the garage door cracked open about six inches to let the cat in. Earwood went to bed around 11:30, but wasawakened by a sound before the alarm clock went off at 5:30 a.m. He got up and heard the cat moving around in the house. However, Earwood soon realized that the light was on in the garage. Upon further investigation, Earwood found that the garage door was wide open, and his truck was gone. Earwood immediately called 911 and gave a description of the truck and its license plate number.
    At about 5:30 a.m., Officer James Teague of the Charlotte- Mecklenburg Police Department was instructed to be on the lookout for a silver Dodge Durango. Almost immediately after hearing this instruction, Officer Teague and two other officers saw a vehicle that matched the missing vehicle's description. In separate cars, the officers pulled out behind the vehicle and followed it as it made two sharp turns before pulling into a parking lot. Because the defendant failed to use turn signals and took the turns at a high rate of speed, Officer Teague initially thought that the driver was trying to evade him. When the vehicle was stopped, Officer Teague identified the driver as Lawrence Del Byous, the defendant. Officer Teague asked defendant for his license and registration, but defendant could not provide them. Officer Teague then told defendant that the police were looking for a vehicle that matched this truck's description. According to Officer Teague, defendant replied, “I feel like this is the vehicle that you are looking for.”
    Officer Teague patted down defendant and found that he was wearing two pairs of pants and carried a small flashlight. Defendant told Officer Teague that he was going to pick up hisbrother before going hunting. Officer Teague testified that the area in which defendant was stopped had no woods for hunting. Initially, defendant was placed in the back of Officer Teague's car without handcuffs. However, when the dispatcher confirmed that the truck defendant was driving belonged to the victim, defendant was placed in handcuffs. Officer Teague told defendant that he would be charged with possession of a stolen vehicle. Defendant was also informed that the charges could change.
    The police contacted Earwood to inform him that his truck had been recovered about nine to ten miles from Earwood's home. Earwood confirmed that the truck was his, and he identified a number of personal items in the truck, including his vehicle registration, insurance papers, his briefcase, a checkbook, and a pistol. Earwood also noticed a computer and some gloves that did not belong to him. Earwood testified that he did not know the man police had in custody and that he had not given the man permission to take the truck. He also indicated that the truck had been driven no more than ten to eleven miles because he had reset the mileage counter on the evening before because he had to write down the mileage for work. Earwood also mentioned that his garage door had been damaged.
    Detective David Holland interviewed defendant at the main police station on 12 November 2000. Defendant received and waived his Miranda rights. Defendant told the detective that he had gone out to look for a place to go hunting when he bumped into a person named Jeffrey. According to defendant, Jeffrey gave the vehicle hewas driving, a Dodge Durango, to him. However, defendant was not able to give Jeffrey's full name, address, or any other information about him to the detective. Detective Holland indicated that it was improbable that defendant would be given a vehicle of this value by somebody he only knew by first name and had no means of recontacting. According to Detective Holland, defendant responded that this happened to him all the time.
    At the end of the State's evidence, defendant moved to dismiss the charge of first-degree burglary, but the motion was denied by the trial court. The defendant's evidence showed the following: Defendant testified that he got up at 3:30 a.m. on 12 November 2003 because he was planning to go deer hunting with his brother. He testified that he was wearing jeans with camouflage pants because it was thirty degrees outside.
    Defendant stated that he began to walk to his brother's house when an acquaintance named Jeff drove up to a stop sign. Defendant stated that he was going to sell his brother's computer for $100 so he would have extra cash to take hunting. Defendant went to pick up the computer at his father's house because it was being repaired there. After getting the computer and while driving back, defendant noticed that police cars were following him.
    When police questioned defendant regarding the stolen vehicle, defendant testified, “Okay, this might be it” because he did not see how Jeff could have had enough money for the truck. Defendant also testified that during his interview with police, he asked that the interrogation be stopped because some of the questions wereabsurd. Defendant testified that he had been convicted of at least eight charges in the last ten years. Some of these offenses included breaking and entering, conversion of bailee, misdemeanor larceny, and credit card theft.
    The stepbrother of defendant, Albert Phillips, testified that he had plans to go hunting with defendant on 12 November 2000. Frank Byous, Sr., defendant's father, testified that defendant came to his house at three or four in the morning to get a computer. He was also able to identify the computer.
    The jury found defendant guilty of felonious larceny, but not guilty of first-degree burglary. Defendant was sentenced to ten to twelve months at the North Carolina Department of Corrections. Defendant appealed on 7 August 2002.
    On appeal, defendant argues that the trial court erred by: (I) denying defendant's motion to dismiss the felonious larceny charge, (II) instructing the jury on the doctrine of recent possession, and (III) allowing the State to elicit evidence of defendant's decision to end his interview with police. We conclude that defendant received a fair trial free from reversible error.

I. Motion to Dismiss
    Defendant first argues that the trial court erred in denying the motion to dismiss the felonious larceny charge.
    In ruling on a motion to dismiss, the trial judge must consider the evidence in the light most favorable to the State, allowing every reasonable inference to be drawn therefrom. State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). The Courtmust find that there is substantial evidence of each element of the crime charged and of defendant's perpetration of such crime. Id. “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Id.
    The elements of larceny are: (1) the taking of the property of another, (2) carrying it away, (3) without the owner's consent, and (4) with the intent to permanently deprive the owner of the property. State v. Perry, 305 N.C. 225, 233, 287 S.E.2d 810, 815 (1982). When the property is valued over one thousand dollars ($1,000), the larceny is a Class H felony. N.C. Gen. Stat. § 14- 72(a)(2003). Also, under the doctrine of recent possession, a court may infer that a defendant committed a larceny if (1) the property was stolen; (2) the defendant possessed the stolen property; and (3) the defendant possessed the property so soon after the larceny and under circumstances making honest possession of the property unlikely. State v. Osborne, 149 N.C. App. 235, 238, 562 S.E.2d 528, 531, aff'd, 356 N.C. 424, 571 S.E.2d 584 (2002).
    In this case, the victim testified that he parked his car and went to bed around 11:30 p.m. The next morning, the victim was awakened by a sound before his alarm went off at 5:30 a.m. The victim discovered that his truck was missing and promptly called the police to report that the truck had been stolen. Almost immediately after officers were informed to be on the lookout for a Dodge Durango, defendant was found driving the victim's truck. This evidence tended to show that the property was stolen anddefendant possessed the property so soon after the larceny and under circumstances making honest possession of the property unlikely.
    Defendant contends that he could have acquired the property by honest means because there was a six-hour time gap between when the owner last saw the car and when it was found in defendant's possession. However, this argument is unavailing. In another case involving a stolen vehicle, this Court found that when the defendant was driving a vehicle approximately twenty-four hours after it had been reported stolen, it was appropriate for the issue to reach the jury. State v. Franklin, 16 N.C. App. 537, 541, 192 S.E.2d 626, 628-29 (1972). We conclude that when considered in the light most favorable to the State, there is substantial evidence of the crime charged and the defendant's perpetration of the crime. Therefore, the motion to dismiss the charge was properly denied.
II. Jury Instruction
    Defendant argues that the trial court committed plain error by instructing the jury on the doctrine of recent possession. We disagree. “The trial court's jury instructions on possible theories of conviction must be supported by the evidence.” Osborne, 149 N.C. App. at 238, 562 S.E.2d at 531. As we have noted, the State presented sufficient evidence on each element of the doctrine of recent possession. Therefore, the trial court was correct in giving the instruction.
    III. Defendant's Interview With Police
    Defendant suggests that the trial court committed plain error by allowing the State to elicit evidence concerning defendant's decision to terminate his interview with police. Defendant claims that this was improper evidence of post-arrest silence. We do not agree.

    The Fifth Amendment to the United States Constitution and Article I, § 23 of the North Carolina Constitution give a defendant the right to remain silent. State v. Ward, 354 N.C. 231, 266, 555 S.E.2d 251, 273 (2001). “A defendant's decision to remain silent following his arrest may not be used to infer his guilt.” Id.
    In this case, defendant's argument is misguided because defendant did not exercise his right to remain silent. Detective Holland testified that defendant waived his Miranda rights and agreed to answer a number of questions. Under these circumstances, the State was not using defendant's silence against him. Rather, it was appropriately presenting what defendant did say in the interview.
    Defendant further contends that it was erroneous for Detective Holland to state that defendant terminated the interview. Once again, we disagree. Detective Holland testified as to the entire process by which defendant waived his rights. He described how defendant was informed of his rights and subsequently waived them. Then, the detective recounted what defendant said in the interview. Under these circumstances, the detective's testimony that the interview had ended was appropriate because it was not offered to infer guilt. We believe that the jury would not naturally andnecessarily understand the statement to be an improper comment on the exercise of defendant's right to remain silent. Therefore, this assignment of error is overruled.
    After a careful review of the record, the transcript, and the arguments presented, we conclude that defendant received a fair trial free from reversible error.
    No error.
    Judges WYNN and TIMMONS-GOODSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***