STATE OF NORTH CAROLINA
v. Union County
No. 02 CRS 050277
JIMMY LEON GARLINS
Attorney General Roy Cooper, by Special Deputy Attorney
General James A. Wellons, for the State.
Jimmy Garlins, defendant-appellant, pro se (Heather Wells was
permitted to withdraw as counsel of record after all briefs
were filed).
STEELMAN, Judge.
The Union County grand jury indicted defendant on a charge of
larceny from the person on 15 January 2002. At trial, the State
introduced evidence tending to show the following: Officer Davey
Plyler received a call at approximately 8:10 p.m. on 15 January
2002 that a black male in a striped shirt had taken a lady's purse
and was running towards the police department. Officer Plyler was
less than a block and a half from the location at the time. As
Officer Plyler was responding to the call, Officer Pressley
informed him by radio that he had dealt with someone named Jimmy
Garlins earlier that day who fit the description of wearing a bluetoboggan. As Officer Plyler drove around the immediate area of the
reported offense looking for the perpetrator, he observed a black
male in a striped shirt walking up Main Street. Officer Plyler
stopped in front of Efird Monuments and spoke with the individual,
whom he identified as defendant. Defendant agreed to accompany
Officer Plyler back to the church parking lot where the offense had
occurred and got into the officer's vehicle.
Upon arriving at the parking lot, Officer Plyler spoke with
the victim, Judith Griffin. Officer Plyler switched on his
vehicle's interior dome light and asked the victim if she could
identify defendant as the perpetrator. Defendant remained in
Officer Plyler's vehicle while the victim looked at him. Officer
Plyler testified the victim told him the defendant “looked like him
but she wasn't sure because he didn't have on a toboggan while he
was sitting in my patrol car.” After Officer Plyler obtained
identification information from defendant, defendant volunteered
that “the only money that he had on him was the change he had in
his pocket” and pulled two quarters out of his pocket. Officer
Plyler then drove defendant to a location about a block away and
released him.
The victim described the perpetrator as a young black man who
was wearing a toboggan and a striped shirt or jacket. The
perpetrator was talking on a cell phone as he approached the
victim. He indicated that she should go in front of him, and she
walked into the church parking lot. When she got to the back of
her car, he snatched her purse. The victim testified that she had$5.50 in her purse in two zippered compartments. The only change
in her purse was two quarters which the victim kept for making
telephone calls. When her purse was recovered later that evening,
only the two quarters were missing.
When the State offered the testimony of Officer Perry Caskey
concerning the use of a police canine (Dolf) to track the
perpetrator, defendant objected. Following voir dire, the trial
court made extensive findings of fact as to Officer Caskey's
training in handling canines and as to Dolf's characteristics and
training in tracking individuals. The trial court found inter alia
that Dolf “is a dog that is used for tracking,” and he “has
demonstated an ability to differentiate between human scent through
his training in what is called cross tracking, . . . and the dog
has been successful differentiating the different tracks of the two
people involved” in testing. Dolf “has had twenty successful
trackings . . . since being certified, and more than twenty-five in
his original training.” The dog has been successfully tested
tracking scent that is two hours old. Dolf was put on the trail
where the victim indicated that “she had last seen the individual
who took her purse.” The trial court found Dolf “tracked hard” and
did not lose the track from the grassy area until its end on “Main
Street, Monroe, in front of Efird's Monument and started circling
or spinning.” This was the place where the defendant got into
Officer Plyler's car. The trial court concluded that Dolf:
is of a stock characterized by acuteness of
scene [sic] and power of discrimination. That
the dog was accustomed to and trained in
pursuit of the human track. That the dog hasbeen found by experience to be reliable in
such pursuit.
In this case the dog was put on the trail
of the defendant. The trail was followed
under circumstances that offer substantial
assurance or permit a reasonable inference of
implication.
It is, therefore, ordered that the
defendant's objection to the evidence of
tracking by Dolf, the Belgium Malinois, is
overruled, and the evidence is competent in
the trial of this case.
Officer Caskey then testified before the jury as to his
training and also as to Dolf's training. At the parking lot,
Officer Caskey asked the victim to point out the last place which
she saw the perpetrator go, and she indicated a grassy area beside
the church. The victim advised Officer Caskey that no one had been
through the grassy area since the perpetrator ran through it.
Officer Caskey went to the grassy area and told Dolf to pick
up the track. Dolf then “hunkered down, kept his nose down, his
tail curled up” and pulled hard on his leash, which Officer Caskey
described as behavior consistent with how Dolf acted while
following a track. Officer Caskey stated Dolf “tracked real hard,”
and he described the route taken by Dolf from the grassy area to
Main Street. Dolf began spinning around Officer Caskey when they
were in front of Efird's Monuments on Main Street. Officer Caskey
described Dolf's spinning behavior as consistent with when a track
has ended because the person being tracked had gotten into a car.
Officer Plyler discovered a purse, a blue toboggan, and a
small cell phone about fifteen feet off of the track followed by
Dolf. The victim identified the purse and its contents asbelonging to her. Officer Pressley testified the blue toboggan was
the same one which he had seen defendant wearing earlier that day.
Defendant made a motion to dismiss the charge at the close of
the State's evidence, which the trial court denied. Defendant
presented no evidence and renewed his motion to dismiss. The trial
court again denied the motion and submitted the case to the jury.
The jury found defendant guilty of larceny from the person. The
trial court sentenced defendant to an active term of fifteen to
eighteen months imprisonment. Defendant appeals.
In his first argument, defendant contends the trial court
erred by admitting testimony concerning the tracking done by Dolf.
He argues the evidence does not support the trial court's
conclusions that Dolf was by experience reliable as a tracking dog,
and that the tracking in the instant case permits a reasonable
inference of identification of the defendant. In order for
evidence obtained through the use of a tracking dog to be admitted
at trial, the State must show that the tracking dog (1) has been
accustomed and trained to pursue the human track; (2) has been
found by experience reliable in such pursuit; and (3) that it was
put on the trail of the guilty party, which was pursued and
followed under such circumstances and in such way as to afford
substantial assurance, or permit a reasonable inference, of
identification. State v. McLeod, 196 N.C. 542, 545, 146 S.E. 409,
411 (1929), and State v. Green, 76 N.C. App. 642, 645, 334 S.E.2d
263, 265, (1985), disc. review denied, 315 N.C. 187, 340 S.E.2d 751
(1985). Defendant contests the sufficiency of State's evidence tosupport the second and third prongs of the McLeod/Green test. In
his supporting assignment of error, however, defendant simply
complains “that the court's findings of fact are not supported by
the evidence and the court's conclusions of law are not
sufficiently supported by the findings of fact and this ruling was
otherwise contrary to law.”
Defendant's assignment “like a hoopskirt -- covers everything
and touches nothing.” State v. Kirby, 276 N.C. 123, 131, 171 S.E.
2d 416, 422 (1970). Because his assignment of error generally
asserts that the evidence does not support the trial court's
findings of fact, “this broad challenge is not sufficient to
preserve appellate review of all the court's findings.” State v.
Phillips, 151 N.C. App. 185, 190, 565 S.E.2d 697, 701
(2002)(citations omitted). As a result, it is presumed that
competent evidence supports those findings and those findings are
binding on appeal. Id.
The findings of fact support the trial court's conclusions of
law, and the trial court did not err in admitting the tracking
evidence. This assignment of error is without merit.
Defendant next contends the evidence was insufficient to
identify him as the perpetrator. He argues the trial court erred
by denying his motions to dismiss at the close of the State's
evidence and at the close of all evidence. We disagree.
When ruling on a defendant's motion to dismiss, the trial
court must consider the evidence in the light most favorable to the
State, and the State is entitled to every reasonable inferencewhich can be drawn from the evidence presented. State v. Davis,
325 N.C. 693, 696, 386 S.E.2d 187, 189 (1989)(citations omitted).
“If there is substantial evidence - whether direct, circumstantial,
or both - to support a finding that the offense charged has been
committed and that defendant committed it, a case for the jury is
made and nonsuit should be denied.” State v. McKinney, 288 N.C.
113, 117, 215 S.E.2d 578, 582 (1975)(citation omitted).
When viewed in the light most favorable to the State, the
evidence tended to show the following: The victim described the
perpetrator as a young black man who was carrying a cell phone.
The perpetrator was wearing a toboggan and a striped shirt or
jacket. Within five minutes of the report of the offense, Officer
Plyler located a black male wearing a striped shirt in front of
Efird's Monument on Main Street. The male, later identified as
defendant, got into Officer Plyler's vehicle and accompanied him
back to the scene of the offense. The victim stated defendant
looked like the perpetrator, but she was not sure. Before his
release by Officer Plyler, defendant voluntarily displayed the
contents of his pocket, which were two quarters. The victim
informed Officer Caskey that the perpetrator was the last person to
pass through a grassy area next to the church. Officer Caskey
began in the grassy area and used Dolf to follow the perpetrator's
track. The track ended at the location where defendant had gotten
into Officer Plyler's vehicle. Fifteen feet off of the track
followed by Dolf, police found a cell phone, a toboggan and the
victim's purse, which was only missing two quarters. This evidence, though circumstantial, is sufficient to survive
defendant's motions (to dismiss at the close of State's evidence
and the close of all evidence). “Circumstantial evidence may
withstand a motion to dismiss and support a conviction even when
the evidence does not rule out every hypothesis of innocence.”
State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433
(1988)(citation omitted). “The test for sufficiency of the
evidence is the same whether the evidence is direct or
circumstantial or both.” State v. Fritsch, 351 N.C. 373, 379, 526
S.E.2d 451, 455 (2000)(citing State v. Barnes, 334 N.C. 67, 75, 430
S.E.2d 913, 918 (1993). “If the evidence presented is
circumstantial, 'the question for the court is whether a reasonable
inference of defendant's guilt may be drawn from the circumstances.
If so, it is for the jury to decide....'” State v. Thomas, 296
N.C. 236, 244, 250 S.E.2d 204, 209 (1978)(citation omitted).
State's evidence was sufficient to submit this issue to the jury,
thus the denial of defendant's motions was not error. This
assignment of error is without merit.
Defendant failed to set out his nine remaining assignments of
error in his brief. Because he has neither cited any authority nor
stated any reason or argument in support of those assignments of
error, they are deemed abandoned. N.C.R. App. P. 28(b)(6).
NO ERROR.
Judges HUDSON and THORNBURG concur.
Report per Rule 30(e).
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