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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. KEVIN WAYNE PHILLIPS
Filed: 2 August 2005
1. Possession of Stolen Property--multiple convictions erroneous--single continuous
The trial court erred by sentencing defendant on five counts of felonious possession of
stolen goods, and the case is remanded for entry of conviction on only one charge, because: (1)
the number of stolen items that a defendant possesses does not necessarily dictate the proper
number of charges for possession of stolen goods; (2) when, as part of one continuous act or
transaction, a perpetrator comes into possession of several stolen items at the same time and
place, only one count of possession of stolen goods may be sustained even though defendant in
the instant case could not have physically taken all five ATVs at one time from the same victim
during one break-in occurring on the same night when there was no interruption in the events
once the transaction began; and (3) the time at which defendant acquires stolen property, not
when he is dispossessed of it, more correctly controls the number of offenses that may be
2. Sentencing--aggravating factors found but not submitted to jury--Blakely error
The trial court erred by sentencing defendant in excess of the statutory maximum based
on aggravating factors not submitted to the jury and not admitted by defendant, and defendant is
entitled to a new sentencing hearing pursuant to Blakely v. Washington, 542 U.S. 296 (2004).
3. Sentencing--prior record level--felonious possession of stolen goods
The trial court must reexamine defendant's prior record level during resentencing since
defendant was a prior record level III offender at the time of sentencing with respect to the
offense of felonious possession of stolen goods.
Appeal by defendant from judgment entered 29 April 2004 by
Judge Mark E. Klass in Richmond County Superior Court. Heard in
the Court of Appeals 21 April 2005.
Attorney General Roy Cooper, by Assistant Attorney General
John P. Barkley for the State.
Amos Granger Tyndall for defendant.
Defendant (Kevin Phillips) appeals from judgments entered on
five counts of felonious possession of stolen goods. Defendant was also sentenced as an habitual felon. We arrest
judgment on four of the five convictions, and remand the remaining
one for resentencing.
Defendant was originally tried in September of 2002. The
State's evidence at trial is summarized as follows: During the
nighttime hours on 10 December 2001, defendant and three companions
broke into the premises of Parker Marine and Outdoors, Richmond
County, North Carolina. The men cut a hole in a perimeter fence,
then stole five All-Terrain-Vehicles (ATVs). They pushed the ATVs
through the hole in the fence and into a nearby wooded area. Two
of the ATVs were taken to a house in Marlboro, North Carolina, and
the remaining three were taken to defendant's house. Because the
ATVs were large and unwieldy, the men had to make at least four
separate trips before all the ATVs were secured.
Defendant was indicted on five counts of felonious larceny and
five counts of felonious possession of stolen goods, all arising
out of the 10 December 2001 theft of the ATVs. He was also
separately indicted for being an habitual felon. At trial,
defendant's motion to dismiss the substantive charges was denied,
and he was convicted of all charges. The trial court arrested
judgment on the possession of stolen goods counts, and consolidated
four of the five counts of larceny, sentencing defendant to two
consecutive terms. See State v. Phillips, 162 N.C. App. 719, 592
S.E.2d 272 (2004) (Phillips I). Defendant appealed to this Court,
which issued its opinion on 17 February 2004 in Phillips I. TheCourt vacated the larceny convictions for defects in the
indictments, and remanded the case to the trial court. Id.
On remand, the State moved to enter judgments on the five
guilty verdicts for possession of stolen property, and the trial
court granted the same. During this hearing, defendant asked the
trial court to find several mitigating factors, none of which the
court found. The State did not ask the court to find any
aggravating factors, nor did the State submit new evidence to
support aggravating factors. The court nonetheless found the
following statutory aggravating factors under N.C.G.S. § 15A-
1340.16(d): number one, The defendant induced others to
participate in the commission of the offense or occupied a position
of leadership or dominance of other participants; and number two,
The defendant joined with more than one other person in committing
the offense and was not charged with committing a conspiracy. The
court entered a consolidated judgment for four counts of felonious
possession of stolen goods in the aggravated range (01 CRS 54077,
01 CRS 54084, 01 CRS 54085, and 01 CRS 54092), and also entered a
separate judgment on the remaining count of felonious possession of
stolen goods in the aggravated range (01 CRS 540076).
From these judgments defendant appeals.
 Defendant argues that the trial court erred by sentencing
him on five counts of felony possession of stolen goods, on the
grounds that the evidence is insufficient to support more than one
charge. We agree. The essential elements of the offense of felony possession of
stolen goods are: (1) possession of personal property; (2) having
a value in excess of $400.00 [now $1,000]; (3) which has been
stolen; (4) the possessor knowing or having reasonable grounds to
believe the property was stolen; and (5) the possessor acting with
a dishonest purpose. State v. Martin, 97 N.C. App. 19, 25, 387
S.E.2d 211, 214 (1990); see also N.C.G.S. §§ 14-71.1 and 14-72
We next consider the law governing the determination of the
proper number of separate charges for the crime of possession of
stolen property. The North Carolina Supreme Court has established
that [t]he statute individuates crimes of possession by the time
at which the stolen goods came into the criminal's possession.
State v. White, 322 N.C. 770, 778, 370 S.E.2d 390, 395 (1988).
Accordingly, the number of stolen items that a defendant possesses
does not necessarily dictate the proper number of charges for
possession of stolen goods. In White, the defendant's possession
began at different times of receipt following break-ins over a
six-week period. Id. On those facts, the Court held the defendant
had properly been charged with eight separate counts of
possession[,] because he acquired the stolen property at separate
times. Id. Based on the reasoning of White, we logically conclude
that when, as part of one continuous act or transaction, a
perpetrator comes into possession of several stolen items at the
same time and place, only one count of possession of stolen goodsmay be sustained. See id.; see also State v. Marr, 342 N.C. 607,
467 S.E.2d 236 (1996).
By analogy, the determination of the proper number of larceny
charges is also based on an analysis of the transaction: [A]
single larceny offense is committed when, as part of one continuous
act or transaction, a perpetrator steals several items at the same
time and place. Marr, 342 N.C. at 613, 467 S.E.2d at 239 (quoting
State v. Froneberger, 81 N.C. App. 398, 401, 344 S.E.2d 344, 347
(1986)). Further, we note that crimes of possession and larceny
are closely related; receiving stolen goods is a "secondary crime
based upon a prior commission of the primary crime of larceny."
State v. Muse, 280 N.C. 31, 39, 185 S.E.2d 214, 220 (1971)
(citation omitted). Accordingly, larceny cases shed light on the
analysis that determines when one continuous act or transaction
has occurred. Marr, 342 N.C. at 613, 467 S.E.2d at 239. On facts
similar to the instant case, this Court in State v. Hargett, 157
N.C. App. 90, 577 S.E.2d 703 (2003), held that multiple larceny
charges were improper and arrested judgment on all but one charge.
There, defendant stole items from two different vans, but the court
held that he could properly be charged with only one count of
larceny, because the vans [were] in close proximity . . . [and the
crime occurred] within the same general time period. Id. at 96,
577 S.E.2d at 707. In Hargett, as in the instant case, defendant
could not have physically taken all of the [goods] at the same
time[.] Id. The court deemed the larcenies part of a single
continuous transaction, and held that the trial court erred inconvicting and sentencing defendant for two separate larcenies.
Concepts concerning criminal possession also relate to the
number of possession charges that may be sustained under a given
set of facts. Possession is not a single, specific act occurring
at a specific time; rather, possession . . . is a continuing
offense beginning at the time of receipt and continuing until
divestment. State v. Davis, 302 N.C. 370, 374, 275 S.E.2d 491,
494 (1981). Furthermore, "possession [of stolen goods] . . . may
be either actual or constructive." State v. Carr, 122 N.C. App.
369, 372, 470 S.E.2d 70, 73 (1996) (citation omitted).
"Constructive possession exists when the defendant, 'while not
having actual possession [of the goods], . . . has the intent and
capability to maintain control and dominion over' the[m]." State v.
Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (quoting
State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986)).
[I]t is not always necessary that the stolen
property should have been actually in the
hands or on the person of the accused, it
being sufficient if the property was under his
exclusive personal control. . . . It may be
of things elsewhere deposited, but under the
control of a party. It may be in a storeroom
or barn when the party has the key. In short,
it may be in any place where it is manifest it
must have been put by the act of the party or
his undoubted concurrence.
State v. Lilly, 25 N.C. App. 453, 455, 213 S.E.2d 418, 419 (1975)
(quoting State v. Foster, 268 N.C. 480, 487, 151 S.E.2d 62, 67
(1966) (other citations omitted)). All the foregoing concepts concerning possession can be
illustrated by the following, which we find helpful to our
evaluation of this case: One who drives a vehicle to work, parks
the vehicle, and retains the ignition key during the workday is not
divested of possession of the vehicle by virtue of leaving it for
numerous hours. Nor does she subsequently repossesses it when she
returns to the car to drive home at the end of the workday. While
she was, at times, in actual possession of the vehicle and, at
other times, in constructive possession, the facts nonetheless
suggest one continuous possession.
In the instant case, the undisputed evidence is that defendant
and his companions stole all five ATVs from the same victim during
one break-in, occurring on the same night. There was no
interruption in the events once the transaction began such that he
was divested of possession and then came back into possession. The
same four individuals worked until they completed the task. The
ATVs were stolen at approximately the same time. The men pushed
the machines into a secluded, wooded area before transporting them
to two different places. The men left the ATVs only temporarily
while transporting them. We conclude that defendant's actions were
part of a single, continuous transaction. See Hargett, 157 N.C.
App. 90, 577 S.E.2d 703. Further, Matias supports the conclusion
that after defendant came into possession of all five ATVs, he
maintained either actual or constructive possession of the ATVs for
the entire series of events, even while making separate trips to
transport them. See Matias, 354 N.C. 549, 556 S.E.2d 269. Defendant and his companions retained the intent and capability to
maintain control and dominion over [the ATVs][.] Matias, 354 N.C.
at 552, 556 S.E.2d at 270. Altogether, the evidence is sufficient
to conclude that the defendant committed only one offense of
possession of stolen property, not five.
The State argues that the evidence does not show that
defendant came into possession of all of the ATVs as part of one
continuous transaction, but that the defendant's possessions were,
instead, distinct and separate events that stretched out through
the evening and over the course of the next four days[.] The
State's argument is based on evidence that defendant made separate
trips to secure all of the ATVs on the night they were stolen, hid
them in different places, and disposed of them separately. On this
evidence, the State reasons, it can bring multiple charges of
possession. However, the evidence that defendant and his
companions made several trips to move the large and cumbersome ATVs
does not convert this offense into five separate offenses. Again,
all of these actions occurred after the defendant's possession of
all five ATVs had already begun and constructive possession had
been maintained. We conclude that evidence concerning defendant's
system of transporting the stolen ATVs does not support multiple
charges of possession.
The State also contends that multiple charges of possession
may be brought because the defendant disposed of the ATVs
separately. The State offers no support for this proposition in
case law, and we find none. In fact, White emphasizes theopposite, that the time at which defendant acquires stolen
property, not when he is dispossessed of it, more correctly
controls the number of offenses that may be sustained. Id. at 778,
370 S.E.2d at 395.
In summary, the undisputed evidence shows that defendant's
acts were part of a single, continuous transaction during the
course of one night. The evidence further shows that the men
maintained constructive possession of the ATVs throughout the night
and until ultimate divestment. The trial court erred by sentencing
defendant on five, rather than one, counts of felony possession of
 Defendant argues next that the trial court erred by
sentencing him in excess of the statutory maximum based on
aggravating factors not submitted to the jury and not admitted by
defendant. Defendant argues he is entitled to a new sentencing
hearing pursuant to Blakely v. Washington
, 542 U.S. 296, 159 L. Ed.
2d 403, reh'g denied
, __ U.S. __, 159 L. Ed. 2d 851 (2004). We
In the instant case, the court found the following statutory
aggravating factors under G.S. § 15A-1340.16(d): number one, The
defendant induced others to participate in the commission of the
offense or occupied a position of leadership or dominance of other
participants; and number two, The defendant joined with more than
one other person in committing the offense and was not charged with
committing a conspiracy. The trial court sentenced defendant asan habitual felon, at the top of the aggravated range, to a term of
167 to 210 months. The aggravating factors were not found beyond
a reasonable doubt by the jury, and were not admitted by defendant.
Therefore, we remand for resentencing in conformity with the
rulings in Blakely
and State v. Allen
, 359 N.C. 425, ___ S.E.2d ___
(No. 485PA04) (filed 1 July 2005).
 Finally, defendant contends, and the State agrees, that
with respect to the offense of felonious possession of stolen
goods, defendant was a prior record level III offender at the time
of sentencing. We agree, and instruct the trial court to reexamine
defendant's prior record level during resentencing.
In summary, we arrest judgment on four convictions of felony
possession of stolen goods (01 CRS 54077, 01 CRS 54084, 01 CRS
54085, and 01 CRS 54092), and remand the fifth (01 CRS 54076) for
Judgment arrested in part, remanded in part.
Chief Judge MARTIN and Judge TYSON concur.
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