An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 September 2005
STATE OF NORTH CAROLINA
New Hanover County
No. 03 CRS 56722-23
RONALD LEE TINDALL
Appeal by defendant from judgments entered 18 February 2004 by
Judge W. Allen Cobb, Jr. in New Hanover County Superior Court.
Heard in the Court of Appeals 14 June 2005.
Attorney General Roy Cooper, by Assistant Attorney General
LaShawn L. Strange for the State.
Jeffrey Evan Noecker for defendant.
Defendant (Ronald Tindall) appeals from felony judgments
entered on convictions of possession of a firearm by a convicted
felon and possession of stolen goods. We find no error in part and
reverse in part.
The State's evidence at trial is summarized as follows: In
June 2003, an officer of the Wilmington, North Carolina, Police
Department observed the defendant driving a 1984 Oldsmobile with a
crooked license tag in downtown Wilmington. When the officer's
investigation revealed that the tag was registered to a different
car, he stopped the vehicle. The police officer testified that
when defendant stepped out of the car, he jumped out . . . as ifhe was going to try and run, and then began walking away. The
officer told the defendant to return to his car, and the defendant
complied. The officer testified that defendant was nervous: He
had a carton of juice in his hand. . . . As I was talking to him,
his hands were shaking. He actually spilled [some juice] on his
shirt. The officer asked defendant for his driver's license;
however, defendant's license had previously been suspended.
Defendant explained that he was test driving [the car] from a car
lot on the north side of town. Defendant was arrested for driving
without a license and for displaying a fictitious tag.
As the officers arrested and searched the defendant, he raised
his hands above his head and dropped the key to the car's glove
compartment and trunk. When the officers retrieved the key and
searched the glove compartment, they found a handgun wrapped in the
sleeve of a black t-shirt. A subsequent investigation determined
that this gun was stolen from a Wilmington, N.C., home in 1997.
The officers also found the defendant's commercial receipt book and
construction tools in the car.
Defendant was indicted for the felony offenses of possession
of a firearm by a convicted felon and possession of stolen goods.
After a jury returned verdicts of guilty on these offenses, the
trial court judge entered judgments from which defendant now
Defendant first contends that the trial court erred by denying
his motion to dismiss the charge of felony possession of stolengoods, on the grounds that the State did not present sufficient
evidence that he knew or had reasonable grounds to believe the
firearm was stolen. We agree.
In ruling on a motion to dismiss, the trial court must
determine whether there is substantial evidence of each element of
the offense charged[.] State v. McAvoy, 331 N.C. 583, 589, 417
S.E.2d 489, 493 (1992) (citation omitted). Substantial evidence
is 'such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.' State v. Patterson, 335 N.C.
437, 449-50, 439 S.E.2d 578, 585 (1994) (quoting State v. Smith,
300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)). When the motion
for nonsuit calls into question the sufficiency of circumstantial
evidence, the question for the Court is what reasonable inference
of guilt can be drawn from the circumstances. State v. Allen, 79
N.C. App. 280, 282, 339 S.E.2d 76, 77 (1986). The issue of
whether the evidence presented constitutes substantial evidence is
a question of law for the court. . . . If the evidence is
sufficient only to raise a suspicion or conjecture as to either the
commission of the offense or the identity of the defendant as the
perpetrator of it, the motion to dismiss should be allowed. State
v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982). In
reviewing a trial court's denial of a motion to dismiss this Court
must consider the evidence in the light most favorable to the
State, giving the State the benefit of all permissible favorable
inferences. State v. Figured, 116 N.C. App. 1, 6, 446 S.E.2d 838,
841 (1994). The essential elements of felony possession of stolen goods
are: (1) possession of personal property; (2) having a value in
excess of [$1,000]; (3) which has been stolen; (4) the possessor
knowing or having reasonable grounds to believe the property was
stolen; and (5) the possessor acting with a dishonest purpose.
State v. Martin, 97 N.C. App. 19, 25, 387 S.E.2d 211, 214 (1990);
see also N.C.G.S. §§ 14-71.1 and 14-72 (2003). As regards
possession of a stolen gun, the General Assembly intended to make
the possession of any stolen firearm . . . a felony, regardless of
the value of the firearm. State v. Taylor, 311 N.C. 380, 384, 317
S.E.2d 369, 371 (1984).
Defendant challenges only the sufficiency of the evidence for
element number four, that the possessor knew or had reasonable
grounds to believe the firearm was stolen. The inclusion [in G.S.
. 14-71.1] of the language concerning a defendant's reasonable
grounds to believe the items were stolen signifies a clear intent
by the legislature to equate a defendant's reasonable belief with
implied guilty knowledge. . . . [T]he legislature . . . intended
for the 'reasonable man standard' to apply to that statutory
offense. State v. Parker, 316 N.C. 295, 304, 341 S.E.2d 555, 560
(1986). [G]uilty knowledge need not be shown by direct proof of
actual knowledge, as by proof that defendant witnessed the theft,
or that such theft was acknowledged to him by the person from whom
he received the goods; rather, such knowledge may be implied by
evidence of circumstances surrounding the receipt of the goods.
State v. Scott, 11 N.C. App. 642, 645, 182 S.E.2d 256, 258 (1971). For example, [t]he fact that a defendant is willing to sell
property for a fraction of its value is sufficient to give rise to
an inference that he knew, or had reasonable grounds to believe,
that the property was stolen. State v. Brown, 85 N.C. App. 583,
589, 355 S.E.2d 225, 229 (1987). The doctrine of recent possession
can be relevant as well: This doctrine allows the jury to infer
that the possessor of the stolen property is guilty of its taking.
The doctrine of recent possession applies where the State can prove
. . . that the defendant had possession of [stolen] property so
soon after it was stolen and under such circumstances as to make it
unlikely that he obtained possession honestly. State v. Reid, 151
N.C. App. 379, 382, 565 S.E.2d 747, 750 (2002) (applying doctrine
where defendant was in possession of stolen property less than
twenty-four hours after the robbery) (quotation marks and citation
In the instant case, the State provided no direct evidence
that defendant knew the gun found in the glove compartment had been
stolen. Instead, the State contends that defendant's knowledge
that the firearm was stolen may be inferred from evidence that, at
the time of his arrest, defendant (1) was driving a car with a
fictitious license plate; (2) walked several steps away from the
car before being told by the police to stop and return to his
vehicle; (3) was visibly nervous when stopped by the police; (4)
threw away the key to the glove compartment; and (5) told the
police he was test driving the vehicle. The facts relied upon by the State suggest defendant had a
guilty conscience, and could reasonably support an inference that
he was aware of the presence of a firearm in the glove compartment.
We also agree with the State that the facts it relies upon may be
probative of the issue of whether the accused knew or should
reasonably have believed that a firearm was stolen. In the instant
case, however, they fall short of that required to show the
requisite guilty knowledge. In our view, the facts give rise to
a suspicion that defendant possessed the requisite knowledge;
however, these facts just as reasonably lead to an inference that
defendant had no knowledge that he [possessed] stolen property.
Allen, 79 N.C. App. at 282-83, 339 S.E.2d at 78 (nonsuit proper
where evidence too tenuous to establish knowledge). Moreover,
there is no evidence that, e.g., connects defendant to the original
theft of the firearm, or suggests how long defendant was in
possession of the gun or what had happened to the gun in the time
since it was first reported stolen seven years before defendant's
arrest. The doctrine of recent possession is inapplicable in this
case, as the firearm was stolen six years earlier. Compare State
v. Taylor, 64 N.C. App. 165, 307 S.E.2d 173 (1983) (accused
observed throwing gun two hours after theft; doctrine of recent
possession implicated), aff'd in part and rev'd in part on
different grounds, 311 N.C. 380, 317 S.E.2d 369 (1984).
In sum, on this record, there is little to demonstrate
defendant knew or had reasonable grounds to believe the firearm was
stolen. Instead, the evidence establishes only a suspicion that hehad the requisite guilty knowledge. Accordingly, the trial court
erred by failing to grant defendant's motion to dismiss the charge
of possession of stolen goods, and we therefore reverse this
Defendant next argues that his constitutional rights were
violated because he received ineffective assistance of counsel.
Defendant contends that the failure of his attorney to stipulate to
his prior felony conviction constituted inadequate assistance. As
we reverse the conviction for felony possession of stolen goods for
the reason already discussed, we consider this argument only as to
defendant's conviction for felony possession of a firearm by a
felon. We reject defendant's ineffective assistance of counsel
Attorney conduct that falls below an objective standard of
reasonableness and prejudices the defense denies the defendant the
right to effective assistance of counsel. An [ineffective
assistance of counsel] claim must establish both that the
professional assistance defendant received was unreasonable and
that the trial would have had a different outcome in the absence of
such assistance. State v. Fair
, 354 N.C. 131, 167, 557 S.E.2d
500, 525 (2001) (citations omitted). Significantly:
[A] court need not determine whether counsel's
performance was deficient before examining the
suffered by the defendant as a
result of the alleged deficiencies. . . . If
it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient
prejudice, which we expect will often be so,
that course should be followed. Courts shouldstrive to ensure that ineffectiveness claims
not become so burdensome to defense counsel
that the entire criminal justice system
suffers as a result.
Strickland v. Washington
, 466 U.S. 668, 697, 80 L. Ed. 2d 674, 699-
700 (1984) (emphasis added). It is not enough for the defendant
to show that the errors had some conceivable effect on the outcome
of the proceeding. Virtually every act or omission of counsel
would meet that test . . . and not every error that conceivably
could have influenced the outcome undermines the reliability of the
result of the proceeding. Strickland
, 466 U.S. at 693, 80 L. Ed.
2d at 697. In North Carolina, the statutorily enacted test for
prejudice mirrors the Strickland
test. State v. Atkins
, 349 N.C.
62, 112, 505 S.E.2d 97, 127 (1998); see also
N.C.G.S. § 15A-1443(a)
In the instant case, defendant was convicted of possession of
a firearm by a convicted felon under
N.C.G.S. . 14-415.1 (2003).
According to G.S. . 14-415.1, records of prior convictions . . .
shall be admissible in evidence for the purpose of proving a
violation of this section. The State was required to prove, as
part of its case-in-chief, that defendant was previously convicted
of a felony. While the record is clear that defense counsel did
not stipulate that defendant had been convicted of a felony, it
does not disclose whether defendant was consulted about whether he
should stipulate to the same, or whether he wished for the State
to be held to its burden to prove the essential element of a prior
felony conviction. We need not know this, however, to rule on
defendant's ineffective assistance of counsel argument. Evenassuming, arguendo
, defense counsel should have stipulated to
defendant's prior felony conviction, doing so would not have had an
effect on the outcome of the trial.
The State proffered evidence that defendant pled guilty in
1993 to possession with intent to sell and deliver cocaine.
Defendant asserts that the prejudice to him resulted from the
jury's knowledge that he had, in particular, a prior drug offense
The State did not elicit any substantive details concerning this
prior drug offense. As to the charge of felony possession of a
firearm by felon, there was considerable evidence of defendant's
guilt. Defendant was visibly nervous and attempted to walk away
after the vehicle was stopped. He was the operator of the vehicle.
While being placed under arrest and searched, defendant attempted
to dispose of the key to the glove compartment, the location where
the firearm was discovered. The police also found a commercial
receipt book in the passenger seat of the car, containing
defendant's name and signature on the front page, and found
defendant's tools in the trunk. This evidence tended to show that
defendant's possession of the vehicle was not, as he told police,
a one time test drive.
In light of the quantity and quality of the evidence
demonstrating defendant's possession of the firearm, we conclude
that the admission of evidence that defendant had a prior
conviction for a drug offense
did not affect the outcome of the
case. See, e.g., United States v. Miller
, 985 F. Supp. 1284 (1997)
(in light of other evidence, counsel's failure to stipulate todefendant's prior conviction did not prejudice the result of the
trial). Thus, even assuming, arguendo
, counsel's failure to
stipulate to defendant's prior felony conviction constituted
unreasonable ineffective assistance of counsel, we are unpersuaded
that such failure either undermined the reliability of the
proceeding or impacted the outcome. This assignment of error is
No error in part, reversed in part.
Judges McGEE and HUNTER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***