An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-694


Filed: 4 May 2004


         v.                            Wayne County
                                    Nos. 01CRS059436-37,
ODANIEL JUNIOR LANGLEY                        02CRS003032

    Appeal by defendant from judgments entered 11 December 2002 by Judge Carl L. Tilghman in Wayne County Superior Court. Heard in the Court of Appeals 19 April 2004.

    Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Christine M. Ryan, for the State.

    Terry W. Alford for defendant-appellant.

    HUNTER, Judge.

     Odaniel Junior Langley (“defendant”) was charged with felony breaking and entering (two counts), larceny after breaking and entering (two counts), possession of stolen goods (two counts) and having attained the status of habitual felon. The State's evidence tends to show that Friendly Mart Number 8 and Handy Mart Number 15, both located in Wayne County, were broken into during the early morning hours of 28 and 29 November 2001, respectively. In each case, store surveillance cameras showed two or three persons breaking the glass out of the front door of the store with a cinder block. Approximately $1,783.98 in Newport cigarettes and Philly Blunt cigars were taken from the Friendly Mart convenience store;and some $1,600.00 in Marlboro and Newport cigarettes were stolen from the Handy Mart convenience store. A bag of redeemed bottle caps was also taken during the Handy Mart theft. Responding officers from the Wayne County Sheriff's Department were unable to recover fingerprints to help identify an individual suspect in either case. According to Detective Shawn Harris (“Detective Harris”) these types of break-ins were an ongoing issue.
    Allan Head (“Head”), who operates the A&K Grocery and Grill, testified that defendant entered his store with a bag of Marlboro cigarettes on the evening of 29 November 2001. Defendant wanted to sell Head the cigarettes or trade them for Newport cigarettes. Recalling a newspaper article about area break-ins involving the theft of cigarettes, Head declined to purchase the Marlboro cigarettes, and later contacted the sheriff's department. Head recounted that defendant was driving a blue-green Monte Carlo with a dent in the driver's side door and part of the Monte Carlo emblem missing. While Head thought that there were others in defendant's vehicle, he stated that it was too dark to be sure of how many.
    Officers of the Goldsboro Police Department were conducting a license check near Lincoln Homes in Goldsboro, North Carolina, when one of the officers, Officer John Biggins (“Officer Biggins”), observed a vehicle attempt to avoid the checkpoint by pulling into a driveway behind a residence. When Officer Biggins caught up to the vehicle, which he recognized as belonging to defendant, it was unoccupied. The vehicle was later towed away from the residence at the homeowner's request, and it was searched pursuant to a searchwarrant. The search of the vehicle yielded a paper bag containing bottle caps (which was later identified as coming from the Handy Mart), two fax machines, broken glass that was tangled in some clothing, some baseball cards, and some prepaid calling cards. Detective Harris also found a T-shirt with a knot tied on top and two eye-holes cut out to make a mask in the front passenger-side floorboard. Broken glass particles were also found in the trunk of the vehicle.
    Defendant was arrested on 5 December 2001. At the time of his arrest and processing, defendant had in his possession a bag of clothing that included a hat with a Star Wars insignia, a T-shirt and a watch, which matched those articles worn by one of the suspects in the surveillance videotapes of the subject convenience store burglaries.
    Defendant presented evidence that he often hired ex-convicts to work in his car detailing business, and that he often let these employees use his cars after business hours for their personal needs. Defendant noted that he had not seen his green 2000 Monte Carlo since 25 or 26 November 2001. In fact, defendant testified that one of his employees told him that he totaled the car. Defendant noted that all of his employees wore the same uniform -- same color T-shirts, tan pants, and a hat. Defendant further noted that he injured himself at his place of business just before Thanksgiving, and had not been able to drive a car since that time due to pain. Defendant explained that he was attempting to tradethe cigarettes for some food at the request of one of his employees, and had no knowledge that they were stolen.
    A jury subsequently found defendant guilty of all the substantive charges, and defendant thereafter admitted to having attained the status of habitual felon. The trial court consolidated one of the counts of breaking and entering, larceny, and possession of stolen property for judgment and sentenced defendant to 133-169 months imprisonment. The other counts of breaking and entering, larceny, and possession of stolen property were also consolidated and the court sentenced defendant to a consecutive term of 133-169 months imprisonment. Defendant appeals.
    By his first assignment of error on appeal, defendant argues that the trial court erred in sustaining the State's objection to his admitting into evidence a newspaper article about similar break-ins that occurred after those charged in this case. We disagree.
    Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C.R. Evid. 401. Generally, “[a]ll relevant evidence is admissible[.]” N.C.R. Evid. 402. In State v. Cotton, 318 N.C. 663, 351 S.E.2d 277 (1987), our Supreme Court discussed the relevance of evidence offered by defendant that another committed the crime(s) charged. The Court explained,
        Evidence that another committed the crime for which the defendant is charged generally isrelevant and admissible as long as it does more than create an inference or conjecture in this regard. It must point directly to the guilt of the other party. Under Rule 401 such evidence must tend both to implicate another and be inconsistent with the guilt of the defendant.
Id. at 667, 351 S.E.2d at 279-80 (citations omitted). In State v. Annadale, 329 N.C. 557, 406 S.E.2d 837 (1991), the Supreme Court held that the trial court properly excluded evidence offered by the defendant to show that another person by the name of Strickland committed the crimes for which he had been charged. The Court explained:
            Unlike the circumstances in Cotton, the evidence in this case does not tend to show that a specific person other than defendant committed the crimes in question. . . . Nothing in the proffered evidence points directly to Strickland as the perpetrator of the offenses for which defendant was being tried; nor is the evidence inconsistent with the guilt of defendant. The evidence in the present case creates a mere inference or conjecture regarding guilt of another and therefore was properly excluded.
Id. at 575, 406 S.E.2d at 848.
    We note that defendant has failed to include a copy of the subject newspaper article that he sought to have admitted into evidence, which subjects this assignment of error to dismissal or being summarily overruled. See N.C.R. App. P. 9(a) (providing that this Court's review is limited to those things which appear in the record on appeal); State v. Moore, 75 N.C. App. 543, 548, 331 S.E.2d 251, 254 (1985) (noting that “[a]n appellate court cannot assume or speculate that there was prejudicial error when none appears on the record before it[]”); State v. Brown, 142 N.C. App.491, 492-93, 543 S.E.2d 192, 193 (2001) (noting that it is the defendant-appellant's duty to ensure that the record before this Court is complete). Nevertheless, as both the State and defendant agree that the article in question was about convenience store break-ins, with similar modus operandi, that had occurred some ten months after defendant's arrest, in the interest of justice, we will review the issue on appeal.
    If the contents of the article are as defendant states, the article neither tends to show that any specific person other than defendant committed the break-ins at Friendly Mart and Handy Mart in late November 2001. Apparently, the article did not mention the name of any other person suspected of committing the crimes. Though the modus operandi may have been similar, they were not, however, so unique that they could only have been committed by the same individual(s). In fact, the surveillance videotapes from the Friendly Mart and Handy Mart break-ins show at least two perpetrators. So the mere fact that the offenses continued after defendant's arrest does not necessitate a finding that defendant did not commit the crimes as charged. The fact remains that the article discussed break-ins which occurred some eleven months after defendants arrest. Under the Cotton test, the instant evidence creates “mere inference or conjecture” as the article neither points to another specific perpetrator nor are its contents inconsistent with defendant's guilt. Thus, on the record before the Court, we conclude that the trial court did not err insustaining the State's objection to the admission of the subject article. This assignment of error is overruled.
    By his second assignment of error, defendant argues that the trial court erred in denying his motion to dismiss. Again, we disagree.
    A trial court properly denies a motion to dismiss if “there is substantial evidence (1) of each essential element of the offense charged and (2) that [the] 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 that relevant evidence “a reasonable mind might accept as adequate to support a conclusion.” State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). When ruling on a motion to dismiss, the court must consider the evidence in the light most favorable to the State, giving the State the benefit of every favorable inference to be drawn therefrom. State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). “The test for sufficiency of the evidence is the same regardless of whether the evidence is circumstantial or direct.” State v. Harding, 110 N.C. App. 155, 162, 429 S.E.2d 416, 421 (1993). “'Contradictions and discrepancies [in the evidence] are for the jury to resolve and do not warrant [dismissal].'” State v. Pallas, 144 N.C. App. 277, 286, 548 S.E.2d 773, 780 (2001) (citation omitted).
    To obtain a conviction for felonious breaking and entering pursuant to N.C. Gen. Stat. § 14-54(a) (2003), the State must present substantial evidence that the defendant (1) broke andentered, (2) a building(s) of another, (3) with the intent to commit a felony or larceny therein. To convict a defendant of possessing stolen goods in violation of N.C. Gen. Stat. § 14-71.1 (2003), the State must present substantial evidence that the defendant (1) possessed personal property, (2) having a value in excess of $1,000.00, (3) which was stolen, (4) that defendant knew or had reasonable grounds to believe the property was stolen, and (5) that defendant acted with dishonest purpose. Finally, to support a conviction for felonious larceny pursuant to N.C. Gen. Stat. § 14-72(b)(2) (2003), there must be substantial evidence that defendant (1) took the property of another, (2) carried it away, (3) without the owner's consent, and (4) with the intent to permanently deprive the owner. The larceny is a felony regardless of the value of the property taken if committed in connection with a violation of N.C. Gen. Stat. § 14-54. Id.
    In the case sub judice, surveillance videotapes show that at least two people used a cinder block to break into the Friendly Mart and Handy Mart in late November 2001. The tapes also show that once inside the convenience stores, the perpetrators took and carried away the stores' merchandise without the permission of the owners of the stores. While there were not any fingerprints to tie defendant to the break-ins, the clothing and watch, worn by one of the perpetrators in the surveillance videotapes, were very similar to that in defendant's possession at the time of his arrest. Moreover, redeemed bottle caps, which were identified as being stolen from one of the convenience stores, were found indefendant's vehicle. Glass particles were found in the interior and trunk of the vehicle. Officers also found a T-shirt fashioned into a mask, some baseball cards and some prepaid calling cards in defendant's vehicle. On the day of the second break-in, defendant went into another convenience store and attempted to sell or trade cartons of cigarettes that were the same brand taken from the Handy Mart during the 29 November 2001 break-in.
    We conclude that this evidence, taken in the light most favorable to the State, is sufficient to allow the reasonable finder of fact to find that defendant broke into the Friendly Mart and Handy Mart, with the intent to commit a felony therein; that once inside the convenience stores, he took personal property belonging to those establishments, with the intent to permanently deprive the owners; and that the merchandise, that defendant knew or reasonably should have known was stolen and valued at more than $1,000.00, was found in defendant's possession. Accordingly, the trial court properly submitted the matter of defendant's guilt on these charges to the jury. This assignment of error is also overruled.
    While the matter of defendant's guilt was properly submitted to the jury, we conclude that once defendant was found guilty of both larceny and possession of stolen property, the trial court was obliged to vacate the possession conviction. See State v. Perry, 305 N.C. 225, 235, 287 S.E.2d 810, 816 (1982) (“the Legislature did not intend to punish an individual for larceny of property and the possession of the same property which he stole”). We, therefore,hold that the consolidated judgments must be arrested, and this matter remanded for resentencing to comply with the dictates of Perry, supra. See State v. Hargett, 157 N.C. App. 90, 92, 577 S.E.2d 703, 705 (2003) (arresting judgment on the possession of stolen goods conviction and remanding the case to the trial court for resentencing).
    Judgments arrested and remanded for resentencing.
    Judges WYNN and McCULLOUGH concur.
    Report per Rule 30(e).

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