An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-869


Filed: 3 May 2005


         v.                        Forsyth County
                                No. 02 CRS 61619

    Appeal by defendant from judgment entered 2 December 2003 by Judge John O. Craig, III in Forsyth County Superior Court. Heard in the Court of Appeals 25 April 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Richard G. Sowerby, for the State.

    Brian Michael Aus, for defendant-appellant.

    CALABRIA, Judge.

    Linwood Fulton (“ defendant”) was charged with larceny of a motor vehicle and with possession of stolen property. He was acquitted of the former and was convicted of the latter.
    The State presented evidence tending to show that on Tuesday, 8 October 2002, Bob Neill Pontiac received a 2003 GMC Yukon XL vehicle that its salesman, Gordon Foster (“Foster”), ordered for a customer. Foster left the keys to the vehicle on his desk when he left the dealership on Wednesday evening, 9 October 2002. After taking a day off on Thursday, Foster returned to work on Friday and discovered the keys on his desk and the vehicle were missing. The dealership reported the vehicle as stolen the next day. Employing the vehicle's Onstar equipment, the police tracked the vehicle tothe parking lot of a YMCA. The vehicle was being driven by defendant and had two other passengers. Upon arriving and parking the car, defendant and two other men exited the vehicle and were seen walking away from it at a brisk pace. The police stopped the three men, at which time defendant was holding a compact disc case in his hand.
    Richard Huger (“Huger”), one of the three men seen leaving the vehicle by the police, testified that Jacki Dodd (“Dodd”) called him and asked him for a ride to her sister's house. Huger obtained a ride from defendant, who drove Huger to Dodd's house in the stolen Yukon. Defendant picked up Dodd, her children, and a third male, Vincent Admore. Dodd testified, while riding with defendant in the stolen vehicle, she commented to defendant that he had a “nice Jeep” and asked how much he paid for it, but defendant did not answer. After delivering Dodd and children to her sister's house, defendant, Huger, and Admore rode to the YMCA, where they were apprehended by the police in the parking lot.
    By his first assignment of error, defendant contends the court erred by denying his motion to dismiss the charge. The question upon a motion to dismiss is whether there is substantial evidence to establish each element of the offense charged and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). The evidence must be considered in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn from the evidence. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). "[T]he rule for determining the sufficiency of evidence is the same whether the evidence is completely circumstantial, completely direct, or both." State v. Wright, 302 N.C. 122, 126, 273 S.E.2d 699, 703 (1981).
    A person is guilty of possession of a stolen motor vehicle in violation of N.C. Gen. Stat. § 20-106 if he (1) possesses (2) a stolen motor vehicle and (3) has knowledge or reason to believe that the vehicle has been stolen. State v. Bailey, 157 N.C. App. 80, 83-84, 577 S.E.2d 683, 686 (2003). Defendant concedes that the evidence is sufficient to place him in possession of a stolen vehicle. He argues the evidence is insufficient to show that he knew or had reason to know that the vehicle was stolen. We disagree.
    In the absence of direct evidence, one's knowledge may be proved by evidence of circumstances permitting a reasonable inference that the possessor knew, or reasonably should have known, that the possessed item was stolen. One such circumstance recognized by this Court is possession of the purloined item recently after its theft. State v. Murchinson, 39 N.C. App. 163, 169, 249 S.E.2d 871, 875 (1978), overruled on other grounds by State v. Wesson, 45 N.C. App. 510, 263 S.E.2d 298 (1980). Here, defendant possessed the vehicle as recently as the day after it was reported stolen or at most three days after it was last seen by its owner. The dealership, the owner of the vehicle, did not give defendant permission to drive the vehicle. Other circumstances giving rise to an inference that defendant knew, or had reason toknow, the vehicle was stolen include: (1) the vehicle was brand new with factory plastic still covering the rear seat and (2) when defendant was asked about the vehicle's price by Dodd, he did not respond. This assignment of error is overruled.
    Defendant also assigns error to the admission into evidence of the compact disc case (“CD case”) seized from defendant. He argues this evidence was not relevant, and that any relevance was outweighed by the danger of unfair prejudice or misleading the jury. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401 (2003). Relevant evidence is generally admissible unless “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” N.C. Gen. Stat. § 8C-1, Rule 403 (2003). “Whether to exclude evidence under Rule 403 is a matter within the sound discretion of the trial court, and its ruling may be reversed for abuse of discretion only upon a showing that the ruling was so arbitrary that it could not have been the result of a reasoned decision.” State v. Collins, 345 N.C. 170, 174, 478 S.E.2d 191, 194 (1996).
    In the instant case, the State argued defendant removed the CD case because anyone finding the vehicle might be able to use the CD case as evidence of defendant's identity and possession of the carduring the time it was missing. While defendant argues on appeal that no showing has been made that the CD case, in fact, belonged to defendant, such showing is unnecessary. That defendant was carrying the CD case sufficiently indicates some possessory interest in or connection with it. The trial court did not, therefore, abuse its discretion in admitting the evidence and allowing the State to argue that defendant's removal of the CD case from the stolen vehicle was motivated by a desire to further obscure a connection between him and the stolen vehicle. Moreover, given defendant's possession of the vehicle shortly after it had been stolen, any error in admitting the CD case into evidence was not prejudicial. See N.C. Gen. Stat. § 15A-1443(a) (establishing that a defendant is prejudiced by errors not affecting constitutional rights “when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached” at trial). This showing has not been made.
    No error.
    Chief Judge MARTIN and Judge McCULLOUGH concur.
    Report per Rule 30(e).

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