State v Cox, (04-1378) 09/06/2005

    At defendant's trial, the State presented evidence tending to show the following: On the morning of 11 March 2002, some weapons, mostly guns, were stolen from the home of Larry Davis. The weapons were taken by three of defendant's friends: James Callahan, Joseph Loftin, and Adam Lakey. Defendant was supposed to participate in the theft, but was too inebriated at the time of its occurrence. Callahan, Loftin, and Lakey used defendant's car to drive to Davis' house and steal the weapons.
    Lakey, Loftin, and Callahan kept a few of the stolen guns for themselves; however, the majority of the guns were unloaded and placed in defendant's basement. On the evening of 11 March 2002, Callahan returned to defendant's house. At this time, defendant was in the basement. Defendant was wearing gloves while handling some of the stolen rifles, and was calling out the serial numbers on the rifles for another person to write down. While Callahan was at defendant's house, defendant made phone calls to several people and attempted to sell the guns. Defendant did not seem upset that the guns were in his basement, and at some point he commented “that's a lot of guns.”
    The fair market value of all of the weapons that were stolen from Davis was approximately $7,000.00. Only fifteen of the stolen firearms, or approximately one-fourth to one-third of the total number of guns taken from Davis, were recovered from Lakey, Loftin, or Callahan. With the exception of one pistol worth between $500.00-$600.00, the weapons recovered from Lakey, Loftin, and Callahan did not include the most valuable weapons stolen from Davis.
    Defendant testified in his own defense. He denied giving Lakey, Loftin, and Callahan permission to use his car, denied knowing that they intended to steal the weapons, and denied recording serial numbers from the rifles. He testified that he was angry about the guns being in his home, and demanded that they beremoved. However, he admitted that he had been wearing gloves when Callahan arrived on the evening of 11 March 2002, and admitted that he never told investigating officers about the guns when they questioned him and visited his house.
    A jury convicted defendant of felonious possession of stolen goods, and the trial court imposed a sentence of eleven to fourteen months' imprisonment. Defendant now appeals.

    In his first argument on appeal, defendant contends that the trial court committed plain error by failing to submit misdemeanor possession of stolen goods to the jury as a lesser included offense. This contention lacks merit.
    A defendant is not entitled to an instruction on a lesser included offense unless "'the evidence “would permit a jury rationally to find [defendant] guilty of the lesser offense and acquit him of the greater.”'" State v. Millsaps, 356 N.C. 556, 562, 572 S.E.2d 767, 772 (2002) (citations omitted). "The sole factor determining the judge's obligation to give such an instruction is the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense." State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981). "Where the State's evidence is clear and positive as to each element of the offense charged and there is no evidence showing the commission of a lesser . . . offense, it is not error for the judge to refuse to instruct on the lesser offense." State v. Peacock, 313 N.C. 554, 558, 330 S.E.2d190, 193 (1985). Indeed, "'[a] defendant is not entitled to an instruction on a lesser . . . offense merely because the jury could possibly believe some of the state's evidence but not all of it.'" State v. Leazer, 353 N.C. 234, 240, 539 S.E.2d 922, 926 (2000) (citation omitted). A defendant's denial that he committed the offense at all is not sufficient to warrant the submission of an alternative offense to the jury. State v. Annadale, 329 N.C. 557, 568, 406 S.E.2d 837, 843 (1991).
    In order to obtain a conviction for felonious possession of stolen goods in violation of N.C. Gen. Stat. § 14-71.1 (2003), the State must prove beyond a reasonable doubt that (1) defendant was in possession of personal property, (2) valued at greater than $1,000.00, (3) which has been stolen, (4) with the possessor knowing or having reasonable grounds to believe the property was stolen, and (5) with the possessor acting with dishonesty. State v. Brantley, 129 N.C. App. 725, 729, 501 S.E.2d 676, 679 (1998). By contrast, “possession of stolen goods knowing or having reasonable grounds to believe them to be stolen, where the value of the property or goods is not more than one thousand dollars ($1,000), is a . . . misdemeanor.” N.C. Gen. Stat. § 14-72(a) (2003).
    We note also that possession of a stolen firearm is a felony, regardless of the value of the firearm. N.C. Gen. Stat. § 14- 72(b)(4), (c) (2003). However, in the instant case, the jury was not instructed on felony possession of a stolen firearm. Accordingly, we limit our discussion to whether the evidencepermitted a jury finding that the value of the stolen property possessed by defendant was less than $1,000.00. We conclude that it did not.
    In the instant case, the evidence tended to show that the total value of the weapons taken from Davis' home was approximately $7,000.00. Lakey, Loftin, and Callahan kept approximately one- third to one-fourth of the guns stolen for themselves and placed the remaining firearms in defendant's basement. The weapons retained by Lakey, Loftin, and Callahan were not among the most valuable items, with the exception of one pistol valued at approximately $500.00 or $600.00. Therefore, for the trial court to give a misdemeanor possession of stolen goods instruction, the guns possessed by defendant, which amounted to between two-thirds and three-fourths of all of the guns taken and, for the most part, included the most valuable of the guns stolen from Davis' collection, would have to be worth less than one-seventh of all of the items taken from Davis' home. The evidence at trial would not have supported such a finding.
    Therefore, the trial court did not commit plain error by declining to submit misdemeanor possession of stolen goods to the jury as a lesser included offense of felony possession of stolen goods. See State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378-79 (1983) ("In deciding whether a defect in the jury instruction constitutes 'plain error,' [an] appellate court must examine the entire record and determine if the instructional errorhad a probable impact on the jury's finding of guilt."). This assignment of error is overruled.

    In his second argument on appeal, defendant contends that the trial court erred by denying his motion to dismiss the charge of felony possession of stolen goods because there was insufficient evidence that the guns in his home had a value of more than $1,000.00. This contention lacks merit.
    A trial court should deny a motion to dismiss if, considering the evidence in the light most favorable to the State and giving the State the benefit of every reasonable inference, "there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). "[T]he rule for determining the sufficiency of evidence is the same whether the evidence is completely circumstantial, completely direct, or both." State v. Wright, 302 N.C. 122, 126, 273 S.E.2d 699, 703 (1981).
    The evidence in the instant case tended to show that the total value of the weapons taken from Davis' home was approximately $7,000.00. Between two-thirds and three-fourths of the stolen guns, including some of the most valuable guns taken, were in defendant's possession. Based upon this evidence, the jury could find that defendant possessed stolen goods worth $1,000.00 or more.
    Accordingly, the trial court properly denied the motion to dismiss. This assignment of error is overruled.

    In his final argument on appeal, defendant contends that he received ineffective assistance of counsel at trial because his lawyer failed to request a jury instruction on misdemeanor possession of stolen goods. To prevail on an ineffective assistance of counsel claim, a defendant must demonstrate that (1) his trial counsel "made errors so serious as to support a finding that he was not functioning as the 'counsel' guaranteed by the Sixth Amendment," and (2) "there is a reasonable probability that, but for counsel's errors, there would have been a different result [at trial]." State v. Fisher, 318 N.C. 512, 533-34, 350 S.E.2d 334, 346-47 (1986). Given our holding that defendant was not entitled to an instruction on misdemeanor possession of stolen goods, he cannot make the required showing that counsel's failure to request such an instruction prejudiced him. This assignment of error is overruled.
    No error.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***