STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 02 CRS 236014
02 CRS 75247
ERIC G. BYRD,
Defendant.
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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