An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1275


Filed: 6 December 2005


    v.                            New Hanover County
                                No. 03 CRS 18634

    Appeal by defendant from judgments entered 11 June 2004 by Judge Michael E. Beale in New Hanover County Superior Court. Heard in the Court of Appeals 10 October 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Stacey A. Phipps, for the State.

    Sofie W. Hosford for defendant-appellant.

    GEER, Judge.

    Defendant Richard Daniel Whitney, Jr. appeals from his conviction of breaking and entering and possession of stolen goods based on a theft of currency from a movie theater. On appeal, he contends (1) that the State presented insufficient evidence that currency within defendant's possession was stolen to justify instructing the jury on the doctrine of recent possession, (2) that the trial court erred in refusing to allow him to elicit on cross- examination testimony regarding another possible theft of the theater, and (3) that the trial court erred in denying his motion to sequester the witnesses. Based on our review of the record, we hold that defendant received a trial free of prejudicial error.


    The State's evidence tended to show the following. On 29 August 2003, Aaron Charles, an assistant manager at the Carmike 16 movie theater in Wilmington, North Carolina, followed normal closing procedures at the theater and secured approximately $9,000.00 in the company safe. The safe had a combination lock and was located in a locked closet in a locked room. Defendant was a former assistant manager at the theater, who had been fired on 26 May 2003. While employed, defendant was provided with keys to the theater and with the combination to the safe. Neither the locks nor the safe combination were changed between the date of his dismissal and 29 August 2003.
    On that evening, defendant attended a movie at the theater and was in the parking lot when Charles left the theater after locking up. When Charles had car trouble, defendant gave him a ride to a nearby gas station. Defendant drove an old, orange truck.
    The following morning, at approximately 6:00 to 7:00 a.m., the theater's janitor, Jerry Calina, while taking trash to a dumpster, noticed a rust-colored or orange pickup truck parked behind the theater. Calina testified that it was unusual for a vehicle to be parked in that area. When Calina left work at 9:00 a.m., the truck was gone.
    Charles reported for work at approximately 10:30 a.m. When he opened the safe, he found it nearly empty. It was ultimately reported that $9,030.00 was missing. The "base bags" filled with cash to use at the concession stands were missing. At least onebox of missing coins consisted of Maine state quarters, which had only just been introduced into circulation. Pry marks that appeared to have been made by a screwdriver were found on the door to the room containing the safe.
    After the theft was discovered, Kim Burkhardt, another assistant manager, called the police and Dennis Debock, the theater's general manager. After Debock talked to the janitor and learned that the janitor had seen a truck like defendant's behind the theater, Debock directed Burkhardt to retrieve defendant's personnel file, which was kept in a locked office. Burkhardt discovered that the file was missing. The file, however, had been seen in its proper place in the days prior to the theft by another assistant manager, Matthew Mariner.
    On 23 September 2003, Detective Mark Hickman of the Wilmington Police Department searched defendant's home pursuant to a warrant. Defendant's missing personnel file was discovered in defendant's bedroom. A letter from defendant's bank was found, dated 29 August 2003, indicating that defendant was overdrawn at that time by $394.44. In the course of the search, Detective Hickman also found $633.00 in U.S. currency and two jars containing $852.02 in assorted coins. A number of the coins were Maine state quarters. Other bank records belonging to defendant showed numerous deposits during the month of September in currency and coins. In addition, several receipts were found reflecting purchases made with cash. Finally, officers discovered numerous keys, including one that opened several doors at the theater. Although that key did notopen the door to the room that contained the safe, where the pry marks were found, it did open the door leading to that room.
    On 3 November 2003, defendant was indicted for breaking and entering, felonious larceny, felonious possession of stolen goods, and possession of drug paraphernalia. The case was tried at the 7 June 2004 Criminal Session of New Hanover County Superior Court. Defendant was convicted of breaking and entering and possession of stolen goods. The trial court sentenced him to a term of six to eight months imprisonment for the breaking and entering charge and a consecutive term of eight to 10 months imprisonment for possession of stolen goods. The court suspended the sentence for possession of stolen goods and placed defendant on supervised probation for 36 months. Defendant appeals.

    Defendant first contends that the State failed to prove that defendant possessed the actual currency stolen from the theater. He argues, therefore, that the trial court erred in instructing the jury regarding the doctrine of recent possession in connection with the breaking and entering charge. We disagree.
    To survive a motion to dismiss, the State must present substantial evidence of each essential element of the charged offense. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). "'Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'" Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)). When reviewing thesufficiency of the evidence, "[t]he trial court must consider such evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom." State v. Patterson, 335 N.C. 437, 450, 439 S.E.2d 578, 585 (1994).
    In the instant case, defendant was charged with possession of stolen goods and felonious breaking and entering. In conjunction with the breaking and entering charge, the State relied in part on the doctrine of recent possession, which permits a presumption of guilt based on a defendant's possession of the stolen property recently after a larceny or breaking and entering. State v. Maines, 301 N.C. 669, 673-74, 273 S.E.2d 289, 293 (1981). Defendant challenges only the adequacy of the evidence to support a finding that the currency that he possessed was stolen from the theater.
    The State, however, presented evidence that defendant's stolen personnel file and a key opening necessary theater doors were found in defendant's bedroom. Further, a truck resembling his distinctively-colored truck was seen at the theater at approximately the time that the theft would have occurred. Moreover, $9,030.00 was taken from the theater, including a large amount of coins. Charles testified that the theater's safe contained almost $1,000.00 to $1,500.00 in quarters with most of the quarters being newly-circulated Maine state quarters. Defendant had possession of almost $1,500.00 in U.S. currency, including jars containing $852.02 in coins, many of which were the new Maine state quarters. On the day before the robbery, however,defendant was overdrawn by nearly $400.00 at his bank and was unemployed. In addition to the cash in his bedroom, in the month after the robbery, defendant made several deposits of currency and coins and made several cash purchases. We hold that when this circumstantial evidence is viewed in the light most favorable to the State, a jury could reasonably find that the money found in defendant's bedroom was the money stolen from the theater and that defendant stole the money after breaking into the theater. Accordingly, this assignment of error is overruled.
    Defendant next argues that the trial court erred by denying him the opportunity to cross-examine a witness regarding a prior theft by another employee at the theater. Defendant contends that this evidence constituted relevant evidence of third-party guilt. Defendant asserts that the evidence would have demonstrated that the former employee had both opportunity and motive to rob the theater. We disagree.
    Evidence of guilt of someone other than the defendant:
        "is relevant and admissible as long as it does more than create an inference or conjecture in this regard. It must point directly to the guilt of the other party. Under Rule 401 such evidence must tend both to implicate another and be inconsistent with the guilt of the defendant."

State v. Israel, 353 N.C. 211, 217, 539 S.E.2d 633, 637 (2000) (quoting State v. Cotton, 318 N.C. 663, 667, 351 S.E.2d 277, 279-80 (1987)). Here, there was no evidence pointing to the third party's guilt in the theft of the money from the safe. The evidence proffered by defendant tended to show that a third party had accessto an unrelated theater office and may have taken theater tickets from the cinema at some unspecified time. No connection to the theft from the safe was demonstrated. "'Evidence which tends to show nothing more than that someone other than the accused had an opportunity to commit the offense, without tending to show that such person actually did commit the offense and that therefore the defendant did not do so, is too remote to be relevant and should be excluded.'" Id. at 218, 539 S.E.2d at 638 (quoting State v. Brewer, 325 N.C. 550, 564, 386 S.E.2d 569, 576 (1989), cert. denied, 495 U.S. 951, 109 L. Ed. 2d 541, 110 S. Ct. 2215 (1990)). Accordingly, the assignment of error is overruled.
    Defendant finally argues that the trial court abused its discretion by denying his motion to sequester the State's witnesses. Defendant contends that the witnesses should have been sequestered because most of them were employed by Carmike Cinemas and might have felt compelled to match their testimony to that of their boss or face retaliation. We are not persuaded.
    "A ruling on a motion to sequester witnesses rests within the sound discretion of the trial court, and the court's denial of the motion will not be disturbed in the absence of a showing that the ruling was so arbitrary that it could not have been the result of a reasoned decision." State v. Wilds, 133 N.C. App. 195, 209, 515 S.E.2d 466, 477 (1999). In State v. Fullwood, 323 N.C. 371, 373 S.E.2d 518 (1988), vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 602, 110 S. Ct. 1464 (1990), our Supreme Court stated, in addressing the denial of a motion to sequester:        The record indicates that the trial court carefully considered defendant's motion and denied it only after hearing and weighing the concerns expressed by both defendant and the State. Before denying the motion, the court determined that there were no eyewitnesses to the crimes and that defendant had copies of the pretrial statements of the witnesses to use in cross-examination.

Id. at 380-81, 373 S.E.2d at 524. Similarly, in this case, there were no eyewitnesses to the crime, and defendant's attorney had the opportunity to interview the witnesses prior to trial. Thus, we conclude that defendant has not demonstrated that the trial court's ruling was so arbitrary that it could not have been the result of a reasoned decision. Accordingly, we conclude that the trial court did not err.
    No error.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

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