STATE OF NORTH CAROLINA
v. Wayne County
Nos. 01CRS059436-37,
ODANIEL JUNIOR LANGLEY 02CRS003032
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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