An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-568


Filed: 1 June 2004


         v.                        Mecklenburg County
                                Nos. 02 CRS 236014
                                    02 CRS 75247


    Appeal by defendant from judgment entered 26 February 2003 by Judge James W. Morgan in Mecklenburg County Superior Court. Heard in the Court of Appeals 3 May 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General John R. Corne, for the State.

    Randolph & Fischer, by J. Clark Fischer for defendant- appellant.

    ELMORE, Judge.

    Defendant was convicted by a jury of possession of stolen goods pursuant to a breaking or entering and of larceny pursuant to a breaking or entering. The court arrested judgment on the latter conviction and sentenced defendant as a habitual felon to a minimum term of seventy-two months and a maximum term of ninety-six months for possession of stolen goods.
    The State presented evidence tending to show that at approximately 12:14 a.m. on 2 August 2002, Charlotte Police Officer Roland Mackel (Officer Mackel) observed defendant riding a bicycle and carrying an object in his left hand. When defendant looked up and saw the officer's police car, defendant dropped the item in hisleft hand to the ground. Officer Mackel called defendant by name and asked him about the object he saw defendant drop on the road. Defendant denied dropping anything. Defendant walked with Officer Mackel back to the location where Officer Mackel saw defendant drop the object. Officer Mackel pointed to the object, a weedeater, and asked defendant if he knew anything about it. Defendant said it was not his, but “he'd be glad to take it.”
    At approximately 4:30 a.m. on 2 August 2002, Alton Redfern discovered that the door to his storage shed at his residence at 2721 Southwest Boulevard in Charlotte had been pried open. Redfern had locked the toolshed door and checked it immediately before going to bed at approximately 11:30 p.m on 1 August 2002. Redfern observed that a weedeater and leaf blower were missing. Redfern identified the weedeater found by Officer Mackel as the one missing from his toolshed. Defendant did not present any evidence.
    Defendant first contends that the court erred by denying his motion to dismiss at the close of the State's evidence. In deciding a motion to dismiss, the court must determine whether there is substantial evidence to establish each element of the offense charged and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). All of the evidence admitted, whether competent or incompetent, must be considered in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). Contradictions and discrepancies in the evidence are to bedisregarded and left for resolution by the jury. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992).
    The essential elements of possession of stolen property are: (1) possession of personal property; (2) which has been stolen; (3) the possessor knowing or having reasonable grounds to believe the property to have been stolen; and (4) the possessor acting with a dishonest purpose. State v. Perry, 305 N.C. 225, 233, 287 S.E.2d 810, 815 (1982). A defendant's guilty knowledge can be inferred from incriminating circumstances. See State v. Parker, 316 N.C. 295, 303, 341 S.E.2d 555, 560 (1986). The evidence in this case shows that shortly after midnight, defendant was seen riding a bicycle and carrying a weedeater less than one hour after the weedeater was stolen pursuant to a breaking and entering. When defendant saw the police officer, he threw the weedeater to the ground. We hold a jury could reasonably find, based upon the foregoing evidence, that defendant possessed a stolen weedeater, with knowledge or reason to know that the weedeater was stolen. This assignment of error is overruled.
     Defendant's remaining contention is that the court erred by denying his motion for a mistrial when it came to the court's attention, after the charge conference but prior to delivery of the instructions, that one of the jurors made comments to other jurors that the trial “was frivolous” or “was a waste of time,” or words of that nature. Under questioning by the court, the juror admitted that she had stated she “was surprised that we were going to Court over this issue.” The court dismissed this juror and seated analternate juror.
    A judge is required to 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 judge is required “to make such investigations as may be appropriate, including examination of jurors when warranted, to determine whether misconduct has occurred and, if so, whether such conduct has resulted in prejudice to the defendant.” State v. Williams, 330 N.C. 579, 583, 411 S.E.2d 814, 817 (1992). The trial judge's determination of prejudice or lack thereof resulting from juror misconduct will be given great weight by the appellate court. State v. Bonney, 329 N.C. 61, 83, 405 S.E.2d 145, 158 (1991). The decision whether or not to declare a mistrial will be reversed only upon a showing of a manifest abuse of discretion. State v. Perkins, 345 N.C. 254, 277, 481 S.E.2d 25, 34, cert. denied, 522 U.S. 837, 139 L. Ed. 2d 64 (1997).
    Here, the court questioned each of the jurors to determine whether the improper comment by the dismissed juror influenced the jurors in any way. Based upon the jurors' answers to its questioning and its observation of the jurors, the court found that defendant had not been prejudiced and that the jurors had not been compromised by the comment. The court's findings are supported by the record. No abuse of discretion is shown. See State v. Lippard, 152 N.C. App. 564, 575, 568 S.E.2d 657, 664, appealdismissed, disc. review denied and cert. denied, 356 N.C. 441-42, 573 S.E.2d 159-60 (2002).
    We hold defendant received a fair trial, free of prejudicial error.
    No error.
    Judges TIMMONS-GOODSON and CALABRIA concur.
    Report per Rule 30(e).

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