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.
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
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.'"
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.
, 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
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
be inconsistent with the guilt of the
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
at 218, 539 S.E.2d at 638 (quoting State v.
, 325 N.C. 550, 564, 386 S.E.2d 569, 576 (1989), cert.
, 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.
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.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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