An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1099


Filed: 4 May 2004


         v.                        Wake County
                                Nos. 02 CRS 33009-10
GARY D. JACKSON                    02 CRS 33012-14    

    Appeal by defendant from judgments dated 6 March 2003 by Judge W. Osmond Smith in Superior Court, Wake County. Heard in the Court of Appeals 19 April 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Michelle B. McPherson, for the State.

    Duncan B. McCormick for defendant-appellant.

    McGEE, Judge.

    Defendant was convicted of three counts of breaking or entering, three counts of larceny after breaking or entering, and one count each of possession of a stolen vehicle and possession of burglary tools.
    The State's evidence at trial tended to show that on the night of 14 April 2002, a 1995 white Chevrolet van (the van) was stolen from Tryon Moving and Storage (Tryon) in Sanford, North Carolina. A Tryon employee discovered the back door to the business pried open, the telephone lines cut, and the alarm system deactivated. The keys to the van had been stolen from a desk drawer in the business office. Defendant had worked for one day as a laborer forTryon a "couple [of] months" prior to the theft.
    Three businesses, Diversified Systems, Inc. (Diversified), Sig-Pac Services, Inc. (Sig-Pac), and Oriental Jewelry, were broken into on 22 April 2002 along a two-mile area of Capital Boulevard in Raleigh, North Carolina. A Diversified employee arrived for work on the morning of 22 April 2002 to find the back door pried open and the security alarm triggered. A video-cassette recorder (VCR) and its connector had also been stolen. Paging speakers, a camera, and sirens were disabled; the ground wire to the building's electrical system was cut. Surveillance cameras videotaped a white van arriving in the parking lot behind the store and an intruder in a hat entering the building and leaving with the VCR between approximately 6:00 a.m. and 6:30 a.m.
    An employee of Sig-Pac also discovered evidence of a break-in on the morning of 22 April 2002. As occurred at Diversified, the intruder cut the telephone lines and pried open the rear entrance. Three Dell laptop computers were taken from Sig-Pac's interior offices. One of the computers was in a carrying case or box, another was issued to Sig-Pac employee John Hrivnak, and another was issued to employee Dave Ruch. Sig-Pac asset tags were attached to the bottom of each computer.
    Also, on the morning of 22 April 2002, Sen Duong and Cuong Duong found the back door to Oriental Jewelry damaged and opened. The store's telephone lines were cut; the surveillance camera line was pulled down; the security system box was pulled out; and the videotape of the surveillance cameras was missing. More than$200,000 in gold, silver and jade jewelry and Swiss E.S.Q. watches were taken from the store's display cases and the office safe.     Raleigh police found a Sig-Pac business card bearing the name John Hrivnak on the ground outside of the rear door of Diversified. Based on the surveillance video from Diversified, police issued an alert for a white van with ladder racks on the roof. Raleigh Police Officer C.L. Keler (Officer Keler) observed a white van matching the description in the parking lot of Best Buy Autos on Capital Boulevard in Raleigh at 1:40 a.m. on 23 April 2002. The van, which was later determined to have been stolen from Tryon, was moving slowly through the lot with its headlights off. Officer Keler conducted an investigatory stop of the van. Defendant was driving the van and was wearing a baseball cap.
    Diana Davis (Davis) was seated in the front passenger's seat. She was wearing sterling silver bracelets later identified as belonging to Oriental Jewelry. In the van's cargo area, police found a canvas bag containing "one screwdriver, three hammers, one approximately three foot pry bar, one one-foot pry bar, two bolt cutters, one wire cutter, one chisel, one one-[and]-a-half inch knife, two pairs of gloves, [and] one skull cap." In Davis' pocketbook was a key to a room at the Capital Inn Motel located on Capital Boulevard. A search of the motel room yielded a duffel bag filled with "a large amount of jewelry" and E.S.Q. watches stolen from Oriental Jewelry. Also in the room was a white t-shirt with blue shoulders, similar to the shirt worn by the intruder recorded on the Diversified surveillance videotape, and a cloth glove withrubber grips similar to the gloves found in the white van.
    The Capital Inn Motel is located on Capital Boulevard less than two miles from Sig-Pac and "[d]irectly across the street" from Otto's Auto body shop. Otto Perkins testified that on 22 April 2002, a black man and black woman came to the body shop in a white Chevrolet van and sold him a Dell laptop computer in a leather carrying case for approximately $500. The computer had a Sig-Pac asset tag on the bottom.
    After their arrest, defendant and Davis were placed in separate interview rooms at the police station. The rooms were checked and cleared of objects beforehand by a police department employee. A uniformed officer was posted at the entrance of each room. While defendant was in the room, his right hand was handcuffed to a chair, but his left hand remained free. After defendant was removed, the room was again checked for objects. In the back corner of the room, police found a white sock containing three pieces of jewelry stolen from Oriental Jewelry.
    As police were executing a search warrant on defendant in Wake County Jail on 1 May 2002, defendant stated, "I do not break into houses, I strictly break into businesses and I work alone."
    In his first assignment of error, defendant argues the trial court erred in admitting into evidence the statement he made to police on 1 May 2002 that, "I strictly break into businesses and I work alone." The trial court admitted the statement into evidence as an admission of a party opponent pursuant to N.C.R. Evid. 801(d). Defendant avers his statement constituted evidence ofprior criminal acts which should have been evaluated pursuant to N.C.R. Evid. 404(b). We agree with the trial court that the statement qualified as an admission of a party opponent under Rule 801(d) and "therefore, we decline to address defendant's argument under Rule 404(b)." State v. Williams, 355 N.C. 501, 575, 565 S.E.2d 609, 651 (2002), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003).
    For purposes of N.C. Gen. Stat. § 8C-1, Rule 801(d), "[a]n admission is a statement of pertinent facts which, in light of other evidence, is incriminating." State v. Trexler, 316 N.C. 528, 531, 342 S.E.2d 878, 879-80 (1986). At the time of his statement on 1 May 2002, defendant was in jail charged with possession of a stolen van, possession of burglary tools, breaking and entering three businesses, and larceny of property therefrom. The day after the break-ins, police stopped a white van which matched the description of the van that had been recorded on the surveillance videotape. Defendant was driving this van and was taken into custody. Among the items found inside the van were gloves and tools which included pry bars, bolt cutters and wire cutters. The female passenger in the van was wearing jewelry which had been taken during one of the break-ins. She also had in her possession a key to a motel room which police later searched. Additional jewelry was found in the room and was determined to be stolen. Police also found a t-shirt similar to the t-shirt that was worn by the intruder when he was recorded on Diversified's surveillance videotape. Defendant left additional pieces of jewelry stolen fromOriental Jewelry in the police interview room after his arrest on 23 April 2002. Under these circumstances and absent any indication that defendant was alluding to specific acts committed prior to 22 April 2002, his statement could reasonably be construed as an admission pertaining to the events of 22 April 2002 as well as to the burglary tools found in the van on 23 April 2003. We note that the State was required to prove beyond a reasonable doubt that defendant possessed these tools "without lawful excuse" under N.C. Gen. Stat. § 14-55 (2003). See State v. Bagley, 300 N.C. 736, 740- 41, 268 S.E.2d 77, 79-80 (1980) ("[T]he burden rests on the State to show beyond a reasonable doubt that the defendant possessed the article in question with a general intent to use it at some time for the purpose of facilitating a breaking.").
    We find no merit to defendant's alternative argument that his statement should have been excluded under N.C. Gen. Stat. § 8C-1, Rule 403, because its probative value was outweighed by a risk of unfair prejudice. As our Supreme Court has found, evidence of a defendant's admission to an incriminating fact is "highly probative; the fact that it is also very prejudicial does not make it unfairly so." State v. Lambert, 341 N.C. 36, 50, 460 S.E.2d 123, 131 (1995).
    Defendant next challenges the trial court's joinder of his offenses, claiming that "there was no connection between the stolen van and the Sig-Pac and Oriental Jewelry break-ins." Under N.C. Gen. Stat. § 15A-926(a), the trial court may join offenses when they "are based on the same act or transaction or on a series ofacts or transactions connected together or constituting parts of a single scheme or plan." N.C. Gen. Stat. § 15A-926(a) (2003). "The trial court's consolidation of charges with a transactional connection will only be disturbed upon a showing of an abuse of discretion." State v. Beckham, 145 N.C. App. 119, 126, 550 S.E.2d 231, 236 (2001). The North Carolina Supreme Court has stated that "a transactional connection could be established by demonstrating a common modus operandi in the commission of the separate crimes, as well as by the existence of a temporal proximity between the offenses." State v. Hyatt, 355 N.C. 642, 659, 566 S.E.2d 61, 72 (2002), cert. denied, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003) (citing State v. Chapman, 342 N.C. 330, 343, 464 S.E.2d 661, 668 (1995), cert. denied, 518 U.S. 1023, 135 L. Ed. 2d 1077 (1996)). In the matter before us, defendant was found in possession of a stolen van on Capital Boulevard one day after three commercial break-ins were committed within a span of hours along a two or three mile span of Capital Boulevard. The break-ins were tied together by a distinctive modus operandi. In the van with defendant were tools consistent with this modus operandi. Diversified's surveillance camera recorded the van's presence during the break-in. A business card from Sig-Pac was found near Diversified's pried-open back door. On the same day as the break- ins, a man and woman drove the van to a body shop and sold one of Sig-Pac's computers to the owner. At the time of his arrest, defendant was accompanied by a woman passenger who was wearing bracelets stolen from Oriental Jewelry and possessed a key to amotel room across the street from the body shop. The motel room contained items stolen from Oriental Jewelry and a t-shirt apparently worn by the intruder at the Diversified break-in. While at the police station, defendant deposited additional merchandise stolen from Oriental Jewelry in the interview room. Defendant's various offenses were sufficiently linked by type, location, time, modus operandi, and overlapping evidence to allow joinder pursuant to N.C.G.S. § 15A-926. See State v. Floyd, 148 N.C. App. 290, 293, 558 S.E.2d 237, 239 (2002).
    Defendant further argues the trial court erred in admitting into evidence jewelry and other items found at the Capital Inn Motel, because defendant "did not have a sufficient connection to the room" to show his constructive possession of the items found therein. Alternatively, defendant contends the evidence was unfairly prejudicial and should have been excluded pursuant to N.C. Gen. Stat. § 8C-1, Rule 403.
    Evidence is relevant and thus admissible if it has "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. Gen. Stat. § 8C-1, Rules 401, 402 (2003). To be admissible under Rule 402, the t- shirt and stolen jewelry need not have been in defendant's possession. The State's evidence tended to show that defendant was with Davis in a stolen van used in the Diversified break-in. Davis was wearing jewelry stolen from Oriental Jewelry and had the key to the motel room in her purse. The motel room contained more jewelrystolen from Oriental Jewelry and a t-shirt possibly used in the Diversified break-in. The t-shirt and stolen jewelry found in the motel room are relevant "because they tend to make the existence of a fact of consequence _ defendant's connection to the offenses with which he is charged _ more probable than it would be without the evidence." State v. Mercer, 317 N.C. 87, 93, 343 S.E.2d 885, 889 (1986). We further find that, inasmuch as these items in question were physical evidence of the crimes at issue, the trial court did not abuse its discretion in finding their probative value outweighed any risk of unfair prejudice under Rule 403.
    Defendant next contends the trial court committed plain error in instructing the jury on the doctrine of recent possession on the charge of larceny from Oriental Jewelry. The doctrine of recent possession is "simply a rule of law that, upon an indictment for larceny, possession of recently stolen property raises a presumption of the possessor's guilt of the larceny of such property." State v. Maines, 301 N.C. 669, 673, 273 S.E.2d 289, 293 (1981).
    Defendant claims there was no evidence that he possessed any of the property stolen from Oriental Jewelry on 22 April 2002. We disagree. Before placing defendant in the interview room at the police station on 23 April 2002, police checked and cleared the room of objects. Defendant was left alone in the room with one hand free. A guard was posted at the door, and there was no evidence that anyone other than defendant entered the room. After defendant was taken from the room, police found a sock containingthree pieces of stolen jewelry which were identified by Sen Duong. These circumstances support a reasonable inference that defendant placed the jewelry in the interview room. See State v. Osborne, 149 N.C. App. 235, 240, 562 S.E.2d 528, 532, aff'd, 356 N.C. 424, 571 S.E.2d 584 (2002) (citing State v. Lilly, 25 N.C. App. 453, 455, 213 S.E.2d 418, 419 (1975).
    No error.
    Chief Judge MARTIN and Judge BRYANT concur.
    Report per Rule 30(e).

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