An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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
No. 02 CRS 053243
JAMES EDWARD COX
Appeal by defendant from judgment entered 21 April 2004 by
Judge Ed Wilson in Forsyth County Superior Court. Heard in the
Court of Appeals 8 June 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Jeffrey R. Edwards, for the State.
Hoang Van Lam for defendant appellant.
Defendant (James Edward Cox) appeals from conviction and
judgment for felonious possession of stolen goods. We hold that he
received a fair trial, free of prejudicial error.
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
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)
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.
Judges WYNN and TYSON concur.
Report per Rule 30(e).
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