An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1085


Filed: 15 November 2005


    v.                            Randolph County
                                Nos.    01 CRS 56974
CECIL KERMIT MCDUFFIE,                    01 CRS 57000
        Defendant.                    01 CRS 57012

    Appeal by defendant from judgments entered 1 April 2004 by Judge Lindsay R. Davis, Jr. in Randolph County Superior Court. Heard in the Court of Appeals 26 September 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Steven A. Armstrong, for the State.

    James N. Freeman, Jr. for defendant-appellant.

    GEER, Judge.

    Defendant Cecil Kermit McDuffie was found guilty of one count of possession of a stolen motor vehicle and two counts each of felonious breaking and entering, larceny, and possession of stolen goods. The trial court sentenced him to five prison terms of 15 to 18 months, four of which were to run consecutively. The court arrested judgment on the two possession of stolen goods charges. Defendant gave notice of appeal in open court.
    On appeal, defendant argues that (1) in light of the 27-month delay, the trial court erred in denying his motion to dismiss for violation of his right to a speedy trial, and (2) the trial court erred in denying his motion to dismiss the charge of possession of a stolen vehicle. Because defendant failed to demonstrate that thetrial delay was caused by willfulness or neglect of the State or that defendant sustained any prejudice as a result of that delay, we hold that the trial court properly denied defendant's motion based on his right to a speedy trial. We also hold that the State presented sufficient evidence that defendant knowingly possessed a stolen vehicle to justify denial of defendant's motion to dismiss.


    The State's evidence tended to show the following. In December 2001, Cynthia Wicker's 1992 light blue Ford Tempo was parked in a driveway in a mobile home park near Asheboro, North Carolina. She had moved out of the park in October 2001, but was unable to start the car and could not afford to have it towed from the premises. Wicker testified that she made "a few extra partial payments" to Patricia Cox, who ran the park, and told Cox that she would need to keep the car there for a few months. Cox typically allowed former tenants three months to remove their cars from the mobile home park before having them removed. Neither Cox nor Wicker authorized anyone to move or dispose of Wicker's car. On 20 December 2001, Wicker "was contacted by one of the girls" from the mobile home park and told that her car was missing. Wicker called the police and reported the car stolen.
    Four days later, on 24 December 2001, Patrol Officer Brian Scherer received a radio dispatch indicating that a stolen Ford Tempo had been spotted at 520 Rockwood Drive, Lot 15, a location in the same mobile home park. When Scherer arrived at the address at approximately 12:20 p.m., he found "a 1992 Ford Tempo with the VINnumber the same as the one that was stolen a few days earlier." He contacted a tow service to remove the car from the premises.
    As Scherer was waiting for the tow truck, defendant arrived in a blue Escort and asked what he was doing. When told that the Tempo had been reported as stolen, defendant advised Scherer "that the main man in the park gave him the vehicle so he could get the motor out." When Scherer asked for the name of the "main man," defendant "said he didn't know his name." Defendant further acknowledged that he had "moved [the car] from another location down the street to a different location and then he moved it back to Lot 15."
    On the same day, Jerry Brown, who operated a self-storage business on Highway 311 in Randleman, North Carolina, was locking the gate to the entrance of the facility at approximately 5:20 p.m. when he saw a blue Ford Escort emerge from behind the facility's office. Defendant was driving the car, and James Willis was the lone passenger. Brown did not recognize either man as a customer, but opened the gate for the Escort to exit. Defendant stopped the car next to Brown. Jutting out from the car's trunk were five speakers, a receiver, and a pair of jack stands, all of which belonged to Brown, as well as a mounted deer head. Willis asked Brown if he "could come back the next day and . . . open up and let him get the rest of his stuff out of there." Defendant did not speak to Brown but "acted very nervous."
    As the Escort left, Brown wrote down the license tag number. After finding that locks had been removed from five storage unitsin the rear of the facility, including his own personal unit, Brown contacted the Randolph County Sheriff's Department and provided the description and tag number of the blue Escort. A detective later found two of the locks, which "appeared to be cut with a bolt cutter."
    Law enforcement officers spotted the blue Escort and stopped it based on the dispatcher's report over the radio. The officers noticed a deer head in the car, which was "sticking up above everything else." Defendant was still driving the car with Willis in the passenger's seat. Lieutenant Gary Davis interviewed defendant and Willis at the sheriff's department. Defendant told Davis that he had "pick[ed] up some property for a friend." Willis claimed he had picked up the speakers and stereo equipment from the storage facility for a man named Larry Sanders.
    Lieutenant Davis took an inventory of the items found in the car, which included the property belonging to Brown and a set of bolt cutters. In addition, the car contained property being stored by Robert Lee Gauze at Brown's facility on Highway 311, including the mounted deer head, a microwave, a satellite dish, and a receiver. Gauze did not know defendant or grant him permission to take the property.    

    Defendant first argues that the trial court erred in denying his motion to dismiss the charges for violation of his right to a speedy trial. He notes that he was arrested for the instant offenses on 24 December 2001 and, although he never sought acontinuance, he was not brought to trial until 29 March 2004. Absent any explanation from the State for the 27-month delay, he asserts the charges should have been dismissed.
    A criminal defendant enjoys a constitutional right to a speedy trial under both the Sixth Amendment of the United States Constitution and Article I, Section 18 of the North Carolina Constitution. Barker v. Wingo, 407 U.S. 514, 515, 33 L. Ed. 2d 101, 108, 92 S. Ct. 2182, 2184 (1972); State v. Tindall, 294 N.C. 689, 693, 242 S.E.2d 806, 809 (1978). Our courts "follow the same analysis in reviewing speedy trial claims" whether asserted under the state or federal constitution. State v. Webster, 337 N.C. 674, 678, 447 S.E.2d 349, 351 (1994). The four factors we must consider are (1) the length of the delay, (2) the reason for the delay, (3) whether and when the defendant asserted his speedy trial rights, and (4) whether the defendant was prejudiced by the delay. Barker, 407 U.S. at 530, 33 L. Ed. 2d at 117, 92 S. Ct. at 2192.
    Here, 27 months separated defendant's arrest on 24 December 2001 from the start of his trial on 29 March 2004. While "not per se determinative of whether a speedy trial violation has occurred," Webster, 337 N.C. at 678, 447 S.E.2d at 351, the length of this delay warrants an examination of the remaining Barker factors. See, e.g., State v. Hill, 287 N.C. 207, 211, 214 S.E.2d 67, 71 (1975) ("The delay in the instant case is not insubstantial since it involves a period of some twenty-two months. However, we elect to view this factor merely as the 'triggering mechanism' that precipitates the speedy trial issue.").    With respect to the reasons for the delay, a defendant bears the burden of presenting prima facie evidence that the delay was caused by the neglect or willfulness of the prosecution. State v. Spivey, 357 N.C. 114, 119, 579 S.E.2d 251, 255 (2003). At that point, the State must then offer evidence "fully explaining the reasons for the delay and sufficient to rebut the prima facie evidence." Id.
    Defendant does not point to any evidence of or make any argument why the reason for the delay was the result of willfulness or neglect by the State. Instead, defendant relies upon his contention that "[t]he State has presented no reason why this inordinate delay occurred." Spivey, however, places the initial burden on defendant.
    In addition, our review of the record does not reveal any indication of willfulness or neglect. Defendant filed his motion to dismiss based on violation of his right to a speedy trial on 29 March 2004, the first day of trial. Encompassed by that motion were not only the three indictments that are the subject of this appeal, but also four other indictments, reflecting offenses that occurred on 20 July 2001, 15 December 2001, and 20 December 2001, as well as the offenses involved in this appeal occurring on 24 December 2001.
    The record reflects that defendant moved to join for trial the charges in this case with a larceny charge in 01 CRS 52723 to be tried in Randolph County in July 2003, but the trial court found the charges not to be subject to joinder. Defendant was ultimatelyconvicted on 10 July 2003 of felonious larceny. In addition, the record reflects that defendant was separately convicted in Cabarrus County of felonious breaking and entering on 4 March 2002.
    Immediately prior to trial in this case, the trial court heard argument on the State's motion to join for trial the charges at issue on this appeal with charges in 01 CRS 57003. In response to that motion for joinder, defense counsel argued that the joinder should not be limited to just those cases, but should encompass all of the charges still pending against defendant:
There are a number of cases still pending against Mr. McDuffie. We've tried a couple. I will acknowledge they are separate transactions. The dates of transactions go through 12/29/01. All involve larceny or possession of similar types of property, and as such, I would submit that these would under 15A-926 be joinable offenses, subject to being joined. I don't think it's mandatory joinder, but they're subject to being joined. I think it should be noted on the record as not waiving that joinder. Mr. McDuffie doesn't have to come back to court endless times for all these separate matters.

The State responded: "I couldn't join them even if I wanted to. We've got dates from May to December, months apart. We've got different type things being stolen, all different victims. I don't believe they're joinable." The court allowed the State's motion to join the offenses involved in this appeal with 01 CRS 57003, but denied defendant's motion to join all the charges.
    Defense counsel then reiterated his concern about the lack of joinder in arguing his speedy trial motion:
I also have a motion to dismiss all these cases. We've tried these cases one or two at a time, piece[meal], and I've made the motionsto join all these cases each time. In lieu of [granting the motion to dismiss], I would ask the Court to join all these cases for trial at this time. We've been going through this for two years now, and Mr. McDuffie would request that we try all these at this time or that they be dismissed.

The record, including defense counsel's argument, thus suggests that the delay was the result of arranging multiple trials on non- joinable charges against a single defendant, a reason that would not constitute willfulness or neglect by the State.
    As for the third Barker factor, defendant did not file his motion to dismiss on speedy trial grounds until 29 March 2004, the first day of trial. In that motion, he states that "[d]efendant filed his formal request for a speedy trial on December 29, 2003." That request does not appear in the record. Since the motion to dismiss encompassed charges other than those involved in this appeal, we cannot determine, without the actual request, whether the request was filed in all of the cases.
    Turning to the fourth and final factor, "in considering whether a defendant has been prejudiced because of a delay, [the Supreme] Court has noted that a speedy trial serves '(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.'" Spivey, 357 N.C. at 122, 579 S.E.2d at 256-57 (quoting Webster, 337 N.C. at 680-81, 447 S.E.2d at 352)). Here, defendant has made no claim that he was prejudiced in any of these respects, but instead has argued that an earlier trial would have allowed him to begin serving his sentences sooner. Atsentencing, however, defense counsel represented to the court that defendant had been serving an active prison sentence for another offense since July 2003, a fact that undermines defendant's contention that he could have begun serving his sentences earlier.
    In any event, defendant has failed to show any "actual, substantial prejudice" from the delay, as required to establish a speedy trial violation. Id. at 122, 579 S.E.2d 257. Accordingly, having weighed the relevant factors, we overrule this assignment of error.


    Defendant next claims the trial court erred in denying his motion to dismiss the charge of possession of a stolen vehicle under N.C. Gen. Stat. § 20-106 (2003). In reviewing the denial of a motion to dismiss, we must determine whether the evidence, taken in the light most favorable to the State, would permit a reasonable juror to find defendant guilty of each essential element of the offense beyond a reasonable doubt. State v. Etheridge, 319 N.C. 34, 47, 352 S.E.2d 673, 681 (1987).
    The essential elements of a violation of N.C. Gen. Stat. § 20- 106 are "'(1) possession of a vehicle, and (2) the possessor knowing or having reason to believe the vehicle has been stolen or unlawfully taken.'" State v. Bailey, 157 N.C. App. 80, 86, 577 S.E.2d 683, 688 (2003) (quoting State v. Craver, 70 N.C. App. 555, 559, 320 S.E.2d 431, 434 (1984)). Defendant only challenges the second element, arguing that the State offered insufficient evidence that he knew or had reason to believe that the car wasstolen. As this Court has observed, "[b]ecause the purpose of this statute is to discourage the possession of stolen vehicles, the State need only prove that the defendant knew or had reason to believe that the vehicle in his possession was stolen. No felonious intent is required." State v. Baker, 65 N.C. App. 430, 436, 310 S.E.2d 101, 107 (1983) (internal quotations marks and alteration omitted), cert. denied, 312 N.C. 85, 321 S.E.2d 900 (1984).
    The State offered evidence that defendant was found in possession of the car just four days after Wicker reported its theft from the mobile home park. Defendant claimed that the "main man" at the mobile home park _ who he could not name or otherwise identify _ had told him that he could take the car and that he had moved it from the mobile home park to another location before bringing it back to Lot 15. The State, however, offered evidence that the "main man" at the mobile home park was in fact a woman, Patricia Cox, who testified that she had never given defendant or anyone else permission to move or take the car.
    Especially in light of the fact that on the same day, defendant had falsely told another police officer that he had permission from an unnamed person to remove property from the storage facility, the jury could find based on this evidence that defendant took the car without authorization from the owner or anyone else, which would allow a reasonable juror to find that defendant knew that the car was stolen or unlawfully taken. Defendant's argument "that no one would have reason to think thatthis vehicle was anything but abandoned" was for the jury to decide.
    The record on appeal contains additional assignments of error not addressed by defendant in his brief. Pursuant to N.C.R. App. P. 28(b)(6), we deem them abandoned.

    No error.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

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