STATE OF NORTH CAROLINA
v. Forsyth County
Nos. 03 CRS 24761
HAROLD RAY TURNER, 03 CRS 52880
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Jane Ammons Gilchrist, for the State.
Michael J. Reece for defendant-appellant.
GEER, Judge.
Defendant was found guilty of attempted larceny of personal
property worth more than $1,000.00; of injury to personal property
in an amount over $200.00; of resisting, obstructing, and delaying
a public officer; and of achieving habitual felon status. All
convictions were consolidated and defendant was sentenced to a
minimum term of 133 months and a maximum term of 169 months.
Defendant argues solely that the trial court should have granted
his motion to dismiss the attempted larceny charge. We hold that
the trial court properly denied that motion.
The State presented evidence tending to show that David
Carandola and his business partner, Robert Holden, returned to
Carandola's home in Kernersville on 17 March 2003. When they droveup, they saw defendant sitting on Carandola's 1998 Honda
motorcycle, which was parked in the back corner of the carport.
Defendant was using a yellow Dewalt drill to drill into the
ignition. Upon making eye contact with Carandola, defendant jumped
off the motorcycle and ran out the back of the carport and past a
swimming pool in Carandola's yard. As Carandola and Holden chased
after him, Holden saw defendant throw a backpack into some bushes.
Carandola called the police, and the police were able to apprehend
defendant.
Holden and the police located the backpack in the bushes.
Inside, the police found camouflage gloves, a Dewalt cordless drill
battery, and a small screwdriver in a wind breaker. A yellow
Dewalt cordless drill was found in Carandola's pool.
When Carandola examined his motorcycle, he found that the cap
on the cylinder lock mechanism had been removed, and the lock had
a drill hole through the middle of it. A motorcycle mechanic
testified that if the tumblers of the lock mechanism are drilled
out, the motorcycle could be started by sticking a screwdriver in
the switch and turning on the ignition. At the same time, the
handlebar would be released. Further, a person can break the pin
that locks the steering by yanking and twisting it.
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). In
making this determination, the court is to consider the evidence inthe 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).
Contradictions and discrepancies in the evidence are to be
disregarded and left for resolution by a jury. State v. Powell,
299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
An attempt to commit a crime consists of two elements: (1) an
intent to commit a particular crime, and (2) an overt act done for
that purpose, which goes beyond mere preparation, although falling
short of the completed offense. State v. Powell, 277 N.C. 672,
678, 178 S.E.2d 417, 421 (1971). Thus, to withstand a motion to
dismiss a charge of attempted larceny, the State must establish the
following elements: "(1) An intent to take and carry away the
property of another; (2) without the owner's consent; (3) with the
intent to deprive the owner of his or her property permanently; (4)
an overt act done for the purpose of completing the larceny, going
beyond mere preparation; and (5) falling short of the completed
offense." State v. Weaver, 123 N.C. App. 276, 287, 473 S.E.2d 362,
369, cert. denied and disc. review denied, 344 N.C. 636, 477 S.E.2d
53 (1996).
Defendant contends that the evidence is insufficient to show
that he had the intent to deprive the owner of his property
permanently. In support of his argument, he cites evidence that
the ignition had not been drilled sufficiently to permit the
starting of the motorcycle with a screwdriver. He cites further
testimony that even if the ignition had been drilled, only sixtimes out of ten will a screwdriver start a vehicle.
We conclude the State presented sufficient evidence to
withstand the motion to dismiss. Viewed in the light most
favorable to the State, the evidence shows that Carandola caught
defendant in the act of drilling out the ignition of Carandola's
motorcycle; that when the ignition lock is drilled, the motorcycle
could frequently be started with a screwdriver instead of a key;
that defendant had a flat head screwdriver in his possession; and
that upon making eye contact with the true owner of the motorcycle,
defendant fled. A jury could reasonably deduce from the foregoing
evidence that defendant intended to steal the motorcycle. By
drilling a hole in the ignition, defendant performed an overt act
towards carrying out that intent. The fact that drilling the
ignition out does not always result in successful starting of a
motorcycle by the use of a screwdriver merely presented a conflict
in the evidence for the jury to resolve.
No error.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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