STATE OF NORTH CAROLINA
v
.
Randolph County
No. 01 CRS 052723
CECIL KERMIT McDUFFIE,
Defendant.
Attorney General Roy Cooper, by Hope Murphy White, Assistant
Attorney General, for the State.
Lynne Rupp for defendant-appellant.
THORNBURG, Judge.
Defendant was indicted on one charge of felony larceny and one
charge of felony possession of stolen goods. A jury found
defendant guilty of both charges. Defendant was sentenced on the
felony larceny charge and judgment was arrested on the possession
charge. Defendant appeals.
On the morning of 30 May 2001, John Lopienski returned home
from work to find that his Honda 250X four-wheeler was missing from
his carport. Lopienski looked though the woods at the back of his
home and then called his son at Asheboro High School to inquire if
his son had left it elsewhere or loaned it to someone. Upon
learning that his son did not know where the four-wheeler was,Lopienski drove to the Randolph County Sheriff's Department to
report the four-wheeler as missing.
Lopienski's four-wheeler was very distinct in appearance, with
several after-market items on it. In describing the four-wheeler,
Lopienski stated:
The fenders have been cut in the front, the
nurf bars have been added to the side, that's
where the four-wheeler wheels are going in
there. The front bumper is a BG brand front
bumper. That was added. The pipe, that was
added. That's a BG pipe. It's an after-
market seat which has the little flame on it.
And the stickers that are on it, the big 250X,
that's an after-market thing that's been added
to it. The handlebars, the pad and the grips,
that's after-market, and that's been added to
it also. Also the frame was painted purple.
That's a cosmetic thing. And of course the
racing numbers were added to it also.
Lopienski also stated that his four-wheeler had a large “5” on the
front. Further, the vehicle had a kill-switch on it that required
a plastic key to be inserted into the switch before the vehicle
would start. The key was kept inside the Lopienski home and was
not stolen. The four-wheeler was recovered several months later
and was returned to Lopienski, but the vehicle's kill-switch
mechanism had been removed.
Also on 31 May 2001, Officer Terry Green of the Asheboro
Police Department was patrolling on Martin Luther King, Jr. Drive
in Asheboro at about 4:00 p.m. when he saw a blue truck carrying
what appeared to be a four-wheeler or three-wheeler. This aroused
Green's suspicion because the area was known as a place to take
items to sell for drugs. For that reason, Green followed the truck
to N.C. Highway 42, where he observed the truck traveling above theposted speed limit. Green activated his emergency equipment and
stopped the truck. Defendant was the driver of the truck. The
truck also had three other occupants, another man, a woman and a
small child.
Green identified the four-wheeler in the back of defendant's
truck as appearing to be the same make and type of four-wheeler as
Lopienski's. Green remembered the four-wheeler in defendant's
truck because:
It stood out because it's a racing four-
wheeler. You don't see many racing-type four-
wheelers. Also the number and sticker on the
side and the different colors between the red
and the other color that was on the vehicle,
the four-wheeler when I seen it.
Defendant told Green that the four-wheeler belonged to a friend.
Green checked with 911 to see if anybody had reported a four-
wheeler stolen, but they advised him that they had not received any
calls. Green let the vehicle go with a verbal warning for speeding
and logged in the incident in the police department's 911 computer
database.
On 1 June 2001, defendant was questioned by Lieutenant Keith
Owenby and Sergeant Roger Brewer of the Randolph County Sheriff's
Department about Lopienski's missing four-wheeler. Defendant told
Owenby that a couple of days before James Coley Cook had brought
him a four-wheeler and asked defendant to help him sell it.
Defendant took Owenby and Brewer to a home on Grantville Lane where
defendant said he and Cook sold the four-wheeler to Jeffery
Stiltner. When shown a photograph of Lopienski's four-wheeler,defendant told Owenby and Brewer that it was not the four-wheeler
that he delivered to Stiltner's home.
On 4 July 2001, Stiltner went to the Randolph County Sheriff's
Department and gave Owenby a written statement. Stiltner was shown
a photograph of Lopienski's four-wheeler and identified it as the
four-wheeler he had recently purchased. Stiltner told Owenby that
he had purchased the four-wheeler from two men in a blue truck.
Stiltner knew only one of the men, an older man, later identified
as Cook. Stiltner did not know defendant, but was able to identify
defendant as the second man after viewing a photo array prepared by
Owenby.
Stiltner knew Cook as the father of a friend. In late May of
2001, Stiltner was at a friend's home looking for brake shoes for
a racing motorcycle Stiltner owned. The friend, Kizer Endicott,
often worked on motorcycles and often had spare parts available.
While at Endicott's, Cook and defendant arrived and tried to sell
Endicott a four-wheeler. When Endicott declined to buy the four-
wheeler, Stiltner offered to buy it. Stiltner testified that Cook
did most of the talking while they were working out a deal for the
four-wheeler. Stiltner directed Cook and defendant to drive the
four-wheeler to Stiltner's home, where he would pay them $200.00 of
the $400.00 price they agreed upon. Stiltner arrived at his home
before Cook and defendant, despite stopping at an automatic teller
machine for cash on his way. Cook and defendant told Stiltner that
they had been stopped for speeding. Before Stiltner paid Cook and
defendant, he tried to start the four-wheeler to make sure theengine was sound. However, Stiltner could not get the four-wheeler
to crank and defendant had to start it for him. Stiltner purchased
the four-wheeler and made arrangements for Cook to return in about
a week for the remaining $200.00.
Also with defendant and Cook that day was Amber Green, who
was dating defendant at the time. Previously, on 30 May 2001,
defendant and Cook arrived at Amber's home with a four-wheeler in
the back of defendant's truck. Amber identified the four-wheeler
in the back of defendant's truck as being Lopienski's four-wheeler.
Amber was with defendant and Cook when they later sold the four-
wheeler, but stayed in the truck and did not see to whom it was
sold. At some point in time, defendant and Cook told Amber that
the four-wheeler was stolen.
Defendant argues on appeal that the trial court erred in
denying his motion to dismiss the charges for insufficiency of the
evidence. Defendant contends that the State sought to prove the
charges based on the doctrine of recent possession and that the
State failed to show sufficient evidence that defendant had both
the power and intent to control the four-wheeler, a required
element of both felony larceny and felony possession. Defendant
argues that the evidence clearly showed that Cook possessed the
four-wheeler as Cook was the one that did all the talking and
arranged the sale. We disagree.
In reviewing challenges to the sufficiency of the evidence, we
must view the evidence in the light most favorable to the State,
giving the State the benefit of all reasonable inferences. Statev. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). Once the
court decides that a reasonable inference of defendant's guilt may
be drawn from the circumstances, then “it is for the jury to decide
whether the facts, taken singly or in combination, satisfy them
beyond a reasonable doubt that the defendant is actually guilty.”
State v. Thomas, 296 N.C. 236, 244, 250 S.E.2d 204, 209 (1978)
(emphasis in original).
The presumption of recent possession “is to be considered by
the jury merely as an evidential fact, along with the other
evidence in the case, in determining whether the State has carried
the burden of satisfying the jury beyond a reasonable doubt of the
defendant's guilt.” State v. Baker, 213 N.C. 524, 526, 196 S.E.
829, 830 (1938). “Recent possession is not evidence of guilt; it
just raises an inference that will permit the case to go to the
jury under proper instructions from the court.” State v. Greene,
289 N.C. 578, 583, 223 S.E.2d 365, 368-69 (1976). The presumption
of recent possession is only met if the State proves beyond a
reasonable doubt that: 1) the property described in the indictment
was stolen; 2) the stolen goods were found in the defendant's
possession; and 3) the possession was recently after the larceny.
State v. Maines, 301 N.C. 669, 674, 273 S.E.2d 289, 293 (1981).
Defendant contends that the State did not present sufficient
evidence of his possession of the four-wheeler.
In discussing the doctrine of recent possession where more
than one person had access to the goods, the Supreme Court has
said: The “exclusive” possession required to support
an inference or presumption of guilt need not
be a sole possession but may be joint. If the
situation is one where persons other than
defendant have equal access to the stolen
goods, the inference may not arise. For the
inference to arise where more than one person
has access to the property in question, the
evidence must show the person accused of the
theft had complete dominion, which might be
shared with others, over the property or other
evidence which sufficiently connects the
accused person to the crime or a joint
possession of co-conspirators or persons
acting in concert in which case the possession
of one criminal accomplice would be the
possession of all.
Maines, 301 N.C. at 675, 273 S.E.2d at 294 (internal citation
omitted).
In reviewing the evidence, giving the State every reasonable
inference, we conclude that there was sufficient evidence to
withstand defendant's motion to dismiss. The evidence clearly
showed that defendant transported the four-wheeler in the back of
his truck on the day the four-wheeler was stolen, that defendant
and Cook tried to sell the four-wheeler, that in furtherance of the
sale defendant started the four-wheeler for Stiltner and that
defendant and Cook told Amber that the four-wheeler was stolen.
Any contradictions or discrepancies in the evidence are properly
resolved by the jury. State v. Brown, 310 N.C. 563, 566, 313
S.E.2d 585, 587 (1984). We conclude that the trial court did not
err in denying the defendant's motion. Accordingly, defendant's
assignment of error fails.
Defendant failed to set out his remaining assignments of error
in his brief. Because he has neither cited any authority norstated 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 GEER and LEVINSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***