An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1139

NORTH CAROLINA COURT OF APPEALS

Filed: 16 August 2005

STATE OF NORTH CAROLINA

v .                                     Pitt County
                                        No. 03CRS011273
DANIELL DESHAWN THOMAS    

    Appeal by defendant from judgment entered 23 March 2004 by Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 13 April 2005.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Harriet F. Worley, for the State.

    William D. Spence for defendant-appellant.

    HUNTER, Judge.

    Daniell Deshawn Thomas (“defendant”) appeals from a judgment entered 23 March 2004 consistent with a jury verdict finding him guilty of felony possession of stolen goods. As we find error in the imposition of an aggravated sentence on factors not found by the jury, we remand for imposition of a sentence consistent with this opinion.
    The evidence tends to show that on 9 April 2003, defendant, along with several other men, went to the home of Bernice Grimes (“Grimes”). One member of the group indicated there were drugs in Grimes's apartment. Defendant remained outside while others entered the home and stole jewelry, clothing, and a cell phone. Defendant left and returned to his home in the Sherwin CourtApartments a few blocks away before the robbery was completed. Shortly thereafter, the other individuals involved in the robbery returned to defendant's apartment.
    Police called by Grimes to the scene used a K-9 dog to track the suspects and were led to the Sherwin Court Apartments. Upon discovering handguns, a gun magazine, two long guns, and white trash bags filled with clothes in the small enclosed porch of a vacant ground floor apartment, the officers went to the apartment above, where defendant answered the door. After informing the officer his girlfriend's name was on the lease of the apartment, defendant admitted the officer and accompanied him inside the apartment. The officer observed several males in the apartment, including one emerging from the bathroom. Upon searching the apartment, the officer found the cell phone stolen from Grimes's apartment in the bathroom trash can and additional trash bags of stolen clothing in the hall closet.
    Defendant was charged with first degree burglary, robbery with a dangerous weapon, and possession of stolen goods. At trial, the jury found defendant not guilty of first degree burglary and robbery with a firearm, but guilty of possession of stolen property. After finding as an aggravating factor that defendant had joined with more than one person in committing the offense and was not charged with conspiracy, the trial court sentenced defendant in the aggravated range to ten to twelve months. Defendant appeals.

I.
    Defendant first contends the trial court erred in denying a motion to dismiss the charge of possession of stolen property for insufficient evidence at the close of all the evidence. We disagree.
    “When ruling on a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State; and the State is entitled to every reasonable inference to be drawn therefrom. The State must present substantial evidence of each element of the offense charged.” State v. Fleming, 350 N.C. 109, 142, 512 S.E.2d 720, 742 (1999) (citation omitted). “A motion to dismiss should be denied if substantial evidence exists of each essential element of the offense charged and of defendant being the perpetrator of the offense. 'Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” State v. Bell, 159 N.C. App. 151, 157, 584 S.E.2d 298, 302 (2003) (citations omitted).
            The essential elements of felonious possession of stolen property are: (1) possession of personal property, (2) which was stolen pursuant to a breaking or entering, (3) the possessor knowing or having reasonable grounds to believe the property to have been stolen pursuant to a breaking or entering, and (4) the possessor acting with a dishonest purpose.

State v. McQueen, ___ N.C. App. ___, ___, 598 S.E.2d 672, 676 (2004). Defendant challenges the sufficiency of the evidence as to the first, third, and fourth elements. Defendant does not challenge the sufficiency of evidence as to the second element.
A. Possession of Stolen Goods
    Defendant contends that the State failed to present sufficient evidence that defendant was in possession of stolen goods. We disagree.
    “One has possession of stolen property when one has both the power and intent to control its disposition or use.” In re Dulaney, 74 N.C. App. 587, 588, 328 S.E.2d 904, 906 (1985). “One who has the requisite power to control and intent to control access to and use of a vehicle or a house has also the possession of the known contents thereof.” State v. Eppley, 282 N.C. 249, 254, 192 S.E.2d 441, 445 (1972).
    Here, evidence was presented that defendant opened the door to officers, admitted them, and accompanied them into the apartment, demonstrating power and intent to control access to the home. Further, testimony of others involved in the crime repeatedly referred to the apartment as defendant's home. Thus, the State presented sufficient evidence to survive a motion to dismiss that defendant had possession of the stolen goods found therein.
B. Knowledge of Goods Stolen Pursuant to Burglary

    Defendant next contends that insufficient evidence was presented that defendant knew or had reasonable grounds to believe the goods had been stolen. We disagree.
    “Whether the defendant knew or had reasonable grounds to believe that the [property was] stolen must necessarily be proved through inferences drawn from the evidence.” State v. Brown, 85 N.C. App. 583, 589, 355 S.E.2d 225, 229 (1987).    Here, when taken in the light most favorable to the State, testimony established that defendant accompanied several individuals to go pick up a gun; that following, a member of the group suggested they break-in to Grimes's apartment in search of drugs; that defendant remained outside the apartment with a shotgun for some time after the robbery began before returning home; and that the group returned to defendant's apartment shortly thereafter. Further, bags of clothing stolen from Grimes's apartment were found in defendant's home. Thus, the State presented evidence sufficient to permit an inference that defendant knew or had reasonable grounds to know the goods were stolen.
C. Dishonest Purpose

    Defendant finally contends the State failed to present sufficient evidence of defendant's dishonest intent to survive a motion to dismiss. We disagree.
    Our Supreme Court has held that
        the “dishonest purpose” element of the crime of possession of stolen property can be met by a showing that the possessor acted with an intent to aid the thief, receiver, or possessor of stolen property. The fact that the defendant does not intend to profit personally by his action is immaterial. It is sufficient if he intends to assist another wrongdoer in permanently depriving the true owner of his property.

State v. Parker, 316 N.C. 295, 305-06, 341 S.E.2d 555, 561 (1986).
    Here, the State presented evidence that defendant admitted the individuals who committed the robbery into his home shortly after witnessing the beginning of the robbery, and that stolen items were found hidden in the closet of defendant's home. Such evidence issufficient to permit an inference that defendant was attempting to aid a wrongdoer in permanently depriving the true owner of property.
    Therefore, as the State presented sufficient evidence of all elements of the offense, we find the trial court properly denied defendant's motion to dismiss.
II.

    Defendant next contends the trial court erred in accepting the jury's verdict of guilty as to felony possession of stolen goods. We find defendant failed to properly preserve this issue for our review.
    “The decision whether to grant or deny a motion to set aside the verdict is vested in the sound discretion of the trial court and is not reviewable absent a showing of an abuse of that discretion.” State v. Wilson, 313 N.C. 516, 538, 330 S.E.2d 450, 465 (1985). Our Rules of Appellate Procedure, however, require that for a question to be preserved for appellate review, “a party must have presented to the trial court a timely request, objection or motion[.]” N.C.R. App. P. 10(b)(1).
    Here, defendant failed to object to the entry of the judgment following the jury's guilty verdict, and, thus, failed to preserve this question for appellate review. N.C.R. App. P. 10(b)(1). Therefore, we find defendant's second assignment of error is not properly before this Court.
III.
    Defendant finally contends the trial court erred in finding an aggravating factor not submitted to the jury and in sentencing defendant in the aggravated range. Defendant relies on the United States Supreme Court's holding in Blakely v. Washington, 542 U.S. ___, 159 L. Ed. 2d 403 (2004). We agree that the trial court erred in sentencing defendant in the aggravated range.
    Our Supreme Court, in the case of State v. Allen, ___ N.C. ___, ___ S.E.2d ___ (No. 485PA04 filed 1 July 2005) has recently held that Blakely applies to the North Carolina Structured Sentencing Act. Allen, ___ N.C. at ___, ___ S.E.2d at ___, slip op. 2. The Court held that “imposition of an aggravated sentence upon judicial findings of [aggravating factors not found by a jury] by a preponderance of the evidence violate[s] the Sixth Amendment to the United States Constitution.” Id. at ___, ___ S.E.2d at ___, slip op. 20. Further, the Court in Allen held that such errors are not harmless, but are “structural and, therefore, reversible per se.” Id. at ___, ___ S.E.2d at ___, slip op. 38.
    Here, the trial court found as an aggravating factor that defendant had joined with more than one person in committing the offense and was not charged with committing a conspiracy. This aggravating factor was not submitted to nor found by the jury. Therefore, the imposition of an aggravated sentence was reversible error.
    Accordingly, we find no error in the trial court's denial of defendant's motion to dismiss the charge of possession of stolen goods at the close of all the evidence, but find error in the trialcourt's imposition of an aggravated sentence on factors not submitted to the jury. We remand for resentencing consistent with this opinion.
    No error in part, remanded for resentencing.
    Judges McCULLOUGH and LEVINSON concur.
    Report per Rule 30(e).

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