An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-97

NORTH CAROLINA COURT OF APPEALS

Filed: 5 April 2005

STATE OF NORTH CAROLINA

v .                         Union County
                            No. 01 CRS 55292
STEPHAN TATE,                    
    
    Defendant.

    Appeal by Defendant from conviction entered 23 July 2003 by Judge Larry G. Ford in Superior Court, Union County. Heard in the Court of Appeals 1 March 2005.

    
    Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State.


    Thomas E. Fulghum, for the defendant-appellant.

    WYNN, Judge.
    
     To prove felonious possession of stolen goods worth more than $1000, the State must proffer substantial evidence that, inter alia, Defendant knew or had reasonable grounds to believe that the property was stolen and acted with a dishonest purpose. N.C. Gen. Stat. §§ 14-71.1, 14-72 (2003). In this appeal, Defendant Stephan Tate contends that the State failed to prove those elements of this offense at his trial. Because the record shows sufficient evidence for a reasonable jury to conclude that Defendant knew or had reasonable grounds to believe that the metal was stolen and that Defendant acted with a dishonest purpose, we affirm his conviction.
    The underlying facts tend to show that Defendant worked as ascrap metal trader with five years of experience during which he traded a wide variety of metals.
    O n 18 November 2001, Bill Alston, who was responsible for security at Allvac (also known as Teledyne), a metal alloy manufacturer located in Union County, North Carolina received a call informing him that there had been a theft of some company materials. Alston investigated the theft and determined, inter alia, that approximately 20,000 pounds of primarily titanium- and nickel-based alloys had been stolen. Approximately two weeks later, some of the missing materials were located at Southern Resources, a scrap metal dealer located in Charlotte, North Carolina. The materials were positively identified by heat-stamped markings on the metal as property stolen from Allvac.
    Mark Clackum, an employee of Southern Resources, testified that he had bought the stolen materials from Defendant on 28 November 2001 for about $8,800. He further testified that when he bought the metal from Defendant, he did not remember seeing anyone other than Defendant and the Southern Resources work crew on the premises. The materials Defendant sold to Southern Resources were titanium- and nickel-based alloys that are costly and not commonly traded. The materials had Allvac identification markings heat- stamped onto them, and the materials were also unusually shaped. As Clackum testified, most scrap metal is “crushed like an empty beer can[,]” whereas the alloy materials Defendant sold were “configurally geometric” and thus “more memorable.”
    Defendant testified he acquired the metal from two men whom hedid not know and whom he overheard discussing scrap metal at a Chicken Box restaurant. Defendant alleged that one of the men, who called himself “Bobby Taylor,” said he could not himself sell the metal in his possession because “he didn't have no I.D., and had lost his wallet.” Defendant testified that he believed he was buying stainless steel from the men, paid them $1400, and took possession of the metal.
    Defendant was arrested and tried on charges of felonious larceny and felonious possession of stolen goods worth more than $1000. Defendant moved to dismiss the charges at the close of the State's evidence and at the close of all the evidence, but the trial court denied both motions. The trial court also gave, over Defendant's objection, a jury instruction on the doctrine of recent possession as to the felonious larceny and felonious possession of stolen goods charges. The jury acquitted Defendant on the charge of felony larceny but found him guilty of felonious possession of stolen property. Defendant appeals his conviction.

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    Defendant first argues that the trial court erred in denying his motion to dismiss the felonious possession of stolen goods charge due to insufficient evidence.
     When reviewing a motion to dismiss, we view “the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.” State v. Morgan, _ N.C. _, _, 604 S.E.2d 886, 904 (2004) (citing State v. Gladden, 315 N.C. 398, 430, 340 S.E.2d 673, 693, cert. denied, 479 U.S. 871, 93 L. Ed. 2d 166,107 S. Ct. 241 (1986)). If we find that “substantial evidence exists to support each essential element of the crime charged and that defendant was the perpetrator, it is proper for the trial court to [have denied] the motion.” Id. (citing State v. Malloy, 309 N.C. 176, 178, 305 S.E.2d 718, 720 (1983)). Substantial evidence “is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984) (citing State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980)). “It is immaterial whether the substantial evidence is circumstantial or direct, or both.” State v. Diaz, 317 N.C. 545, 546, 346 S.E.2d 488, 490 (1986) (quotation omitted).
    To survive Defendant's motions to dismiss the charge of felonious possession of stolen goods worth more than $1000, the State needed to proffer substantial evidence that: (1) Defendant possessed the property, (2) the property was valued at more than $1000, (3) the property had been stolen, (4) Defendant knew or had reasonable grounds to believe that the property was stolen, and (5) Defendant acted with a dishonest purpose. N.C. Gen. Stat. §§ 14-71.1, 14-72 (2003); State v. Martin, 97 N.C. App. 19, 25, 387 S.E.2d 211, 214 (1990) (same).
    Here, Defendant concedes that “[t]here was substantial evidence of the first three elements of the offense[]” and argues only that there was insufficient evidence to support the last two elements. We therefore restrict our analysis to those two elements.      Regarding the fourth element of the felonious possession offense, the State needed to present substantial evidence that Defendant had actual knowledge that the property was stolen or, using a “reasonable man standard,” that Defendant had reasonable grounds to believe the property was stolen. State v. Parker, 316 N.C. 295, 304, 341 S.E.2d 555, 560 (1986). Moreover,
        In State v. Haywood, 297 N.C. 686, 256 S.E.2d 715 (1979), we stated that a defendant-seller's knowledge or reasonable grounds to believe that property was stolen can be implied from his willingness to sell the property at a mere fraction of its actual value. Such knowledge or reasonable belief can also be implied where a defendant-buyer buys property at a fraction of its actual cost.

Id
.
    Here, there was evidence that Defendant was a seasoned scrap metal trader with five years of experience trading many different metals; the metals here were unusual in both their geometric shape and their having identification markings burned into them; Defendant bought the metals in a fast-food restaurant parking lot from a man without identification or a wallet; and Defendant paid $1400 for the materials and quickly resold them for almost $9000. Viewing the evidence in the light most favorable to the State, there was sufficient evidence for a reasonable jury to conclude that Defendant knew or had reasonable grounds to believe that the metal was stolen.   (See footnote 1)      Regarding the fifth element of the felonious possession offense, the State needed to present substantial evidence that Defendant acted with a dishonest purpose. “Dishonest purpose is equivalent to felonious intent” and “can be proven by direct or circumstantial evidence.” State v. Withers, 111 N.C. App. 340, 348, 432 S.E.2d 692, 698 (citing Parker, 316 N.C. 295, 341 S.E.2d 555 and State v. Bell, 285 N.C. 746, 208 S.E.2d 506 (1974)), disc. review denied, 335 N.C. 180, 438 S.E.2d 207 (1993). Indeed,
        [i]ntent is “seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred.” State v. Hines, 54 N.C. App. 529, 533, 284 S.E. 2d 164, 167 (1981). (Citations omitted.) In determining the absence or presence of intent, the jury may consider “the acts and conduct of the defendant and the general circumstances existing at the time of the alleged commission of the offense charged.” Id
State v. Bennett, 84 N.C. App. 689, 691, 353 S.E.2d 690, 691-92 (1987).
    Viewing the evidence in the light most favorable to the State, there was sufficient evidence for a reasonable jury to conclude that Defendant acted with a dishonest purpose: Defendant bought the metals, which, as discussed above, a reasonable jury could conclude Defendant knew or should have known were stolen, in a fast-food restaurant parking lot from a man without any identification, and Defendant paid only $1400 for the materials and then quickly resold them for almost $9000.    In sum, because the State proffered sufficient evidence for a reasonable jury to conclude that Defendant knew or had reasonable grounds to believe that the metal was stolen and that Defendant acted with a dishonest purpose, the trial court did not err in denying Defendant's motions to dismiss.
    Defendant next contents that the trial court erred in giving the jury instruction on the doctrine of recent possession for the charge of felonious possession of stolen property. He argues that the trial court's instruction improperly allowed the jury to infer his guilt as to the felonious possession of stolen goods charge even if he was not found to be the thief of the stolen goods.
    The doctrine of recent possession permits an inference or presumption the person in possession of recently stolen property is the thief. State v. Joyner, 301 N.C. 18, 28, 269 S.E.2d 125, 132 (1980); see also, e.g., State v. Osborne, 149 N.C. App. 235, 238, 562 S.E.2d 528, 531 (The doctrine of recent possession “allows the jury to infer that the possessor of certain stolen property is guilty of larceny.” (quotation omitted)), aff'd, 356 N.C. 424, 571 S.E.2d 584 (2002). The recent possession inference or presumption is allowed only where the State shows 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 though not necessarily found in defendant's hands or on his person so long as he had the power and intent to control the goods; and (3) the possession was recently after a larceny, mere possession of stolenproperty being insufficient to raise a presumption of guilt. State v. Maines, 301 N.C. 669, 674, 273 S.E.2d 289, 293 (1981).
    Here, notably, while the trial court referred to the doctrine of recent possession, it nowhere instructed that the doctrine raised an inference, not even to mention a presumption, that Defendant was guilty of any of the crimes charged against him. The trial court merely stated that “you may consider them together with all other facts and circumstances in deciding whether or not the defendant is guilty of felonious larceny or possession of stolen goods.” We find no error in the trial court's instruction that a person's recent possession of stolen goods is merely relevant in deciding whether a person was guilty of possession of stolen goods.
    Finally, Defendant contends that the order in which the trial court gave the jury instructions confused the jury and left a mistaken impression that the doctrine of recent possession replaced the substantive elements of felonious possession of stolen goods.
    “We presume 'that jurors . . . attend closely the particular language of the trial court's instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them.'” State v. Jennings, 333 N.C. 579, 618, 430 S.E.2d 188, 208 (1993) (quoting Francis v. Franklin, 471 U.S. 307, 324 n.9, 85 L. Ed. 2d 344, 360 n.9 (1985)). Moreover, “[i]t is axiomatic in this state that the trial court's jury charge must be construed contextually as a whole and that isolated errors are not necessarily prejudicial.” State v. Newkirk, 73 N.C. App. 83, 88, 325 S.E.2d 518, 521-22 (citing State v. Bailey, 280 N.C. 264, 185S.E.2d 683, cert. denied, 409 U.S. 948, 34 L. Ed. 2d 218 (1972)), disc. review denied, 313 N.C. 608, 332 S.E.2d 81 (1985); see also, e.g., State v. Humphrey, 13 N.C. App. 138, 142, 184 S.E.2d 902, 904 (1971) (jury instructions “must be considered as a whole, . . . with the presumption that the jury did not overlook any portion of it and if, when so construed, it presents the law fairly and correctly, there is no ground for reversal[]” (citation omitted)).
    As in Jennings, in this case, we presume that the jury paid attention to the trial court's instruction on the five requisite elements for felonious possession of stolen goods. The trial court instructed the jury it must find all five elements beyond a reasonable doubt in order to convict Defendant of felonious possession of stolen goods. The fact that the instruction on the doctrine of recent possession was prefaced by the trial court's stating “Now let me go back, ladies and gentlemen, and insert this in when we're talking about possession of the property[,]” in the context of the whole instruction, would not render the jury instructions improper, nor would the fact that the instruction on the doctrine of recent possession came after the jury instruction on felonious possession of stolen goods.
     For the foregoing reasons, we find no error and affirm Defendant's conviction.
    No error.
    Judges HUDSON and STEELMAN concur .
    Report per Rule 30(e).


Footnote: 1
     While other evidence, primarily Defendant's testimony, contradicts a finding that Defendant had knowledge or reasonable grounds for knowledge that the materials were stolen, the trial court, in deciding a motion to dismiss, may “neither weigh[] the evidence nor consider[] evidence unfavorable to the State because weighing the evidence and assessing the credibility of witnessesfall within the province of the jury.” State v. Glasco, 160 N.C. App. 150, 156, 585 S.E.2d 257, 262 (2003) (citing State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002)).

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