An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1284


Filed: 6 September 2005



v .                         New Hanover County
                            No. 03 CRS 56722-23

    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.

    LEVINSON, Judge.
    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 appeals.

    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 omitted).
    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 conviction.
    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 argument.
    “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 prejudice 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) (2003).
    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 overruled.
    No error in part, reversed in part.
    Judges McGEE and HUNTER concur.
    Report per Rule 30(e).

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