STATE OF NORTH CAROLINA
v
.
Wake County
No. 02 CRS 69621
PATRICK RICARDO SMITH
Attorney General Roy Cooper, by Assistant Attorney General
Dorothy Powers, for the State.
Daniel Shatz for defendant-appellant.
ELMORE, Judge.
Patrick Ricardo Smith (defendant) was indicted on one count of
robbery with a dangerous weapon. The jury found defendant guilty
on this charge, and the court sentenced defendant to 117-150 months
of imprisonment. Defendant appeals.
The State's evidence tended to show that on 12 July 2002
Nathan Phillips, a lineman employed by BellSouth, was working at
the intersection of Lee and Blount Streets in Raleigh. As Phillips
walked around his BellSouth van to reach a cable box, he noticed
two males walking in his direction. Phillips knelt down to inspect
the box, and defendant confronted him as he was standing up.
Phillips observed defendant holding a gun and the other male
positioned at the back of the van. Defendant asked Phillips wherehis tools were, and the other male jumped inside the van and
grabbed a hard hat and tools. Defendant, still holding the gun,
told Phillips to take off his shirt. Defendant and the other male
took Phillips' shirt, hard hat, butt set, tool belt, and various
tools and ordered him to get inside the van. After waiting
approximately 20 seconds, Phillips called the police.
The State's evidence also showed that several weeks later on
2 August 2002 defendant committed an armed robbery at the Cash in
Advance on Raeford Road in Fayetteville. Defendant approached the
teller counter and informed an employee that he needed to check the
phone lines. The employee observed that defendant was wearing a
tool belt and BellSouth shirt and hard hat and carrying a butt set
(red phone that repairmen plug in to check telephone lines). The
employee asked defendant for identification, and defendant
retrieved a BellSouth ID badge from his car and displayed it
quickly. After the employee unbolted the door, defendant pulled
out a gun and pointed it at her. Defendant asked where the money
was and then retrieved about a thousand dollars from the teller
drawers. As defendant was leaving, a customer present during the
incident took down the license plate number of defendant's car.
Detective Christopher Corcione of the Fayetteville Police
Department traced the plate number to Michael Anthony Cox of
Raleigh. Detective Mark Utley of the Raleigh Police Department and
Detective Corcione interviewed Cox, who told them that he had
obtained the license plate for defendant because defendant had no
driver's license. Based upon this information, Detective Utleyassembled a photographic lineup and showed it to Phillips.
Phillips identified defendant as the person who robbed him on 12
July 2002.
By his first assignment of error, defendant argues that the
trial court erred in allowing the State to introduce evidence of
the Cash in Advance robbery in Fayetteville. Essentially,
defendant contends that the evidence of the Fayetteville robbery
was offered for an improper purpose.
Evidence of a person's prior crimes or bad acts is not
admissible to show propensity to commit a particular crime, but
this evidence may be admissible “for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake, entrapment or accident.” N.C.
Gen. Stat. § 8C-1, Rule 404(b) (2003). Rule 404(b) is a rule of
inclusion of the defendant's other crimes or bad acts, “subject to
the single exception that such evidence must be excluded if its
only probative value is to show that defendant has the propensity
or disposition to commit an offense of the nature of the crime
charged.” State v. Berry, 356 N.C. 490, 505, 573 S.E.2d 132, 143
(2002).
In the present case, the State offered the evidence of the
Cash in Advance robbery to show defendant's intent and motive to
rob Phillips. The State argued that defendant robbed Phillips in
order to procure equipment as part of a plan or scheme to
impersonate a BellSouth repairman in a future robbery. The State
also offered the evidence as proof of identity. On the other hand,defense counsel argued at voir dire that the BellSouth uniform and
tools were not so unique as to be probative of identity under Rule
404(b), and that the evidence proffered by the State was unfairly
prejudicial. However, the trial judge concluded that the danger of
unfair prejudice did not outweigh probative value and admitted the
evidence pursuant to Rule 404(b) “to show identity, to show motive,
to show intent, to show a plan or scheme.” The judge gave a
limiting instruction to the jury prior to the admission of the
evidence.
On appeal, defendant challenges the connection between the two
crimes. Specifically, defendant argues that the evidence shows
that the same person could not have committed both crimes.
However, our Supreme Court has explained that in order to admit
evidence of defendant's prior acts or crimes under Rule 404(b) to
show defendant's identity as the perpetrator, the similarities
between the incidents need not be striking; rather, there must be
“'some unusual facts present in both crimes or particularly similar
acts which would indicate that the same person committed both
crimes.'” State v. Green, 321 N.C. 594, 603-04, 365 S.E.2d 587,
593 (quoting State v. Moore, 309 N.C. 102, 106, 305 S.E.2d 542, 545
(1983)), cert. denied, 488 U.S. 900, 102 L. Ed. 2d 235 (1988).
Thus, the question for the trial court is whether the similarities
tend to support a reasonable inference that the same person
committed both crimes. State v. Stager, 329 N.C. 278, 304, 406
S.E.2d 876, 891 (1991). Here, the evidence showed that a person
carrying a butt set and wearing a BellSouth uniform shirt and hardhat, but not driving a BellSouth van, robbed the Cash in Advance
under the guise of checking phone lines. Phillips testified that
defendant took only his BellSouth equipment and uniform, not the
BellSouth van. We conclude that the trial court did not abuse its
discretion in determining that the evidence supported a reasonable
inference that the same person committed both robberies.
Next, defendant assigns error to the trial court's jury
instruction on the doctrine of recent possession. This doctrine
permits the jury to accept the presumption that the defendant is
guilty of larceny where the stolen goods were found in his
possession. State v. Carter, 122 N.C. App. 332, 337, 470 S.E.2d
74, 78 (1996). For the doctrine to apply, the State must prove the
following beyond a reasonable doubt: “(1) the property described in
the indictment was stolen; (2) the stolen goods were found in
defendant's custody and subject to his control and disposition to
the exclusion of others . . . and (3) the possession was discovered
recently after the larceny . . . .” Id. (quoting State v. Maines,
301 N.C. 669, 674, 273 S.E.2d 289, 293 (1981)). Although the State
has the burden of establishing the identity of the property, “[i]t
is not necessary that stolen property be unique to be identifiable.
Often stolen property consists of items which are almost devoid of
identifying features, such as coins and goods which are mass
produced . . . .” State v. Crawford, 27 N.C. App. 414, 415, 219
S.E.2d 248, 249, disc. review denied, 288 N.C. 732, 220 S.E.2d 621
(1975). The owner of the property need not specifically identifyeach item; other evidence at trial may be used to establish the
identity of the items as stolen property. Id.
Defendant contends that the State failed to sufficiently
identify the property as stolen because the items were “standard
issue BellSouth equipment and/or uniform items.” As support for
this contention, defendant relies upon State v. Foster, 268 N.C.
480, 151 S.E.2d 62 (1966). There, the owner of the property was
unable to identify the six tires found in the defendant's
possession as the ones stolen from his business. The Court held
the evidence insufficient to uphold a larceny conviction. The
facts here differ significantly, as several Cash in Advance
employees testified to defendant's possession of the shirt, hard
hat, tool belt, and butt set. The items identified by the Cash in
Advance employees were of a unique assemblage _ the same assemblage
of items stolen from Phillips. Thus, the evidence presented by the
State raised at least a reasonable inference that defendant was in
possession of the stolen property. See State v. McCoy, 79 N.C.
App. 273, 278, 339 S.E.2d 419, 423 (1986) (concluding that the
State presented substantial evidence from which the jury could
infer that defendant was guilty of felonious larceny where
defendant was seen leaving victim's apartment with goods resembling
those later reported stolen); State v. Hales, 32 N.C. App. 729,
732, 233 S.E.2d 601, 603 (reasonable inference of defendant's guilt
where combination of goods discovered in defendant's possession was
exactly the same combination as the goods stolen), disc. review
denied, 292 N.C. 732, 235 S.E.2d 782 (1977). Next, defendant challenges the court's assignment of two
record points for a conviction in New York on the offense of
criminal possession of a weapon in the 3rd degree. “The State
bears the burden of proving, by a preponderance of the evidence,
that a prior conviction exists and that the offender before the
court is the same person as the offender named in the prior
conviction.” N.C. Gen. Stat. § 15A-1340.14(f) (2003). There is no
distinction between in-state and out-of-state convictions. See id.
This Court has recognized that a computerized printout of the
defendant's Division of Criminal Information (DCI) record is a
proper method to prove prior convictions under N.C. Gen. Stat. §
15A-1340.14(f). See State v. Rich, 130 N.C. App. 113, 116, 502
S.E.2d 49, 51 (copy of computerized record maintained by DCI
constituted reliable method of proving prior conviction), disc.
review denied, 349 N.C. 237, 516 S.E.2d 605 (1998).
Here, the State introduced a computer printout of defendant's
DCI record. Defendant argues that the State has failed to prove
that the New York conviction belonged to him. As factual support
for this argument, defendant points out that the record associates
him with five different names and four different dates of birth.
At the sentencing hearing, defendant denied being convicted of the
New York criminal possession charge. After reviewing the evidence
of defendant's conviction on this charge, the judge entered
findings into the record:
The Court further determines that on November
21, 1989, in the Kings County Superior Court
of New York, the defendant pled guilty to the
New York Class D felony of criminal possessionof a weapon in the third degree . . . the
Court determines it should be treated for
sentencing purposes here as a Class I felony
with 2 points.
The court added the 2 points attributable to this felony and
sentenced defendant at a prior record level of IV. We believe the
trial court correctly determined that the conviction was supported
by a preponderance of the evidence. The State introduced a DCI
record to prove the existence of the New York criminal possession
conviction. Cf. State v. Riley, 159 N.C. App. 546, 555-57, 583
S.E.2d 379, 286-87 (2003) (State failed to present copy of the
defendant's record maintained by the DCI to support prosecutor's
worksheet calculating prior record level). Nothing in the record
indicates that the DCI record is unreliable or that the New York
conviction does not belong to defendant. The mere fact that the
record listed several different names and dates of birth does not
render it unreliable here. The State's cross-examination of
defendant at trial revealed that defendant had in his possession a
birth certificate, tax form, and North Carolina driver's license in
the name of Nathaniel Edwards, an alias. Yet, defendant denied
using any names other than Patrick Ricardo Smith. Given the
evidence that defendant in fact used different names, his assertion
that he did not commit the offense in question is simply not enough
to establish the unreliability of his DCI record. We overrule this
assignment of error.
Finally, defendant contends that the court erred in denying
his motion to dismiss for insufficiency of the evidence. Defendant
asserts that the evidence was insufficient to support an inferencethat he was the perpetrator of the offense charged. We cannot
agree. In ruling on a motion to dismiss for insufficiency of the
evidence, the court must consider the evidence in the light most
favorable to the State, giving the State the benefit of all
reasonable inferences. State v. Taylor, 337 N.C. 597, 604, 447
S.E.2d 360, 365 (1994). “The evidence need only permit a
reasonable inference of the defendant's guilt of the crime charged
in order for that charge to be properly submitted to the jury.”
Id. Here, the evidence showed that defendant, using a gun, robbed
Nathan Phillips of a BellSouth shirt, hard hat, butt set, tool
belt, and tools. Defendant does not contest the accuracy of
Phillips' identification of him from the photographic lineup;
instead, he argues that the other evidence identifying him as the
perpetrator of the offense is incredible. Phillips testified that
defendant appeared to be approximately 6 feet 3 inches in height
and 215 pounds. In contrast, defendant testified that he is 5 feet
9 inches in height and weighs 190 pounds. However, the State
correctly points out that Phillips qualified his testimony by
explaining that at the time he observed defendant's height he was
standing on the ground and defendant was standing at the top of the
curb. Moreover, contradictions and discrepancies in the evidence
are for the jury to resolve. State v. Benson, 331 N.C. 537, 544,
417 S.E.2d 756, 761 (1992). Thus, the evidence presented was
sufficient to submit the case to the jury, and the trial court did
not err in denying defendant's motion to dismiss.
No error.
Judges MCGEE and MCCULLOUGH concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***