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.
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
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 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
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
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
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
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.
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
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.
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
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
No error in part, remanded for resentencing.
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
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