NO. COA04-1401
On writ of certiorari to review judgment entered 9 October
2002 by Judge W. Allen Cobb, Jr. in New Hanover County Superior
Court. Heard in the Court of Appeals 26 September 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Sueanna P. Sumpter, for the State.
Nora Henry Hargrove for defendant-appellant.
GEER, Judge.
Defendant Warren Eugene Penny appeals from his conviction of
felonious larceny and having attained the status of habitual felon.
He contends on appeal that the trial court erred in calculating his
prior record level, in failing to grant his motion to dismiss for
insufficiency of the evidence, and in failing to grant his motion
for a mistrial based on the court's instructions to the jury.
While we agree that the trial court appears to have incorrectly
counted defendant's prior convictions in calculating his prior
record level, the error was harmless since an accurate calculation
results in the same level. We further hold that the trial court
properly denied defendant's motion to dismiss and motion for a
mistrial.
Facts
The State's evidence tended to show the following. On 19
November 2001, Delbert Herman was employed by Newbold Catering
Company to transport "Meals on Wheels" from a senior center to four
other distribution centers in New Hanover County. Herman arrived
at the senior center at about 7:00 a.m. and parked the van at the
back door of the kitchen, leaving the keys in the van's ignition
while he prepared tickets for the day's deliveries. Herman's wife
was assisting him in preparing and loading supplies, and on her
second trip to the van, discovered that the van was gone. There
was an abandoned bicycle in the spot where the van had been parked.
After reporting for duty on the same day, Officer Scott Solano
of the Wilmington Police Department received a report of the stolen
van and a request to be on the lookout for it. That afternoon, he
was called to investigate an incident at a clothing store on
Oleander Drive. While en route, he spotted the stolen van in the
Independence Mall parking lot and called for assistance. When
Officer Solano approached the van, he observed a man, later
identified as defendant, sitting in the driver's seat. Despite
Officer Solano's repeated demands that defendant keep his hands
within view and exit the van, defendant refused to comply.
Defendant told Officer Solano that he was unarmed and that the
officer could not shoot him; defendant then drove away in the
stolen van.
Officer Solano had just turned to get back into his vehicle
when he observed a man named Rodney Brown approaching. Brown fitthe description of one of the suspects involved in the incident at
the clothing store to which the officer had been originally
responding. When Officer Solano confronted Brown, Brown was
uncooperative and entered the mall. Brown was, however,
subsequently detained and transported to the Wilmington Police
Department. At the police department, Brown made statements
identifying defendant as the driver of the stolen van.
Officer George Powell responded to Officer Solano's call for
assistance and observed the van leaving the parking lot. He
followed it until it ran a red stoplight. Based on departmental
policy, Officer Powell's supervisors instructed him to break off
the chase. The officer drove for about ten minutes in the general
direction the van had taken, but did not locate it again. The van
was subsequently found on the following day in a housing complex in
Wilmington.
At trial, Brown testified that on 19 November 2001, defendant
drove him to "A&G Sportswear" and then to the mall so that he could
purchase a coat. He did not recall what type of vehicle defendant
was driving since, he testified, he was under the influence of
heroin at the time. Officer Solano also identified defendant as
the person he had seen driving the van on 19 November 2001.
Defendant did not present any evidence at trial.
The jury found defendant guilty of felonious larceny,
possession of stolen property, and having attained the status of
habitual felon. The trial court arrested judgment on the
possession of stolen property conviction and sentenced defendant asa habitual felon to 151 to 191 months imprisonment for the felony
larceny conviction. By order entered 2 September 2003, this Court
allowed defendant's petition for writ of certiorari.
Discussion
Defendant first argues that the trial court erred in
calculating his prior record level. He points out that the court
used one of his prior felony convictions both to establish his
status as a habitual felon and to calculate his prior record level.
It is well settled that a prior conviction cannot be used both to
calculate a defendant's record level pursuant to N.C. Gen. Stat. §
15A-1340.14 (2003) and to establish his status as a habitual felon
pursuant to N.C. Gen. Stat. § 14-7.1 (2003).
See N.C. Gen. Stat.
§ 14-7.6 (2003).
Nevertheless, an error in calculating a prior record level is
not prejudicial error, entitling a defendant to resentencing, if
the error does not affect the determination of his prior record
level.
State v. Smith, 139 N.C. App. 209, 219, 533 S.E.2d 518,
523-24,
appeal dismissed, 353 N.C. 277, 546 S.E.2d 391 (2000). A
thorough examination of the record shows that the trial court, in
calculating defendant's prior record level, improperly used one
Class H felony conviction, but properly used seven Class H felony
convictions. Multiplying the seven convictions by the proper
factor results in 14 prior record points. The trial court properly
added an additional point based upon its determination that all the
elements of the present offense were included in one of the prior
offenses. N.C. Gen. Stat. § 15A-1340.14(b)(6). Addition of thatpoint results in a total of 15 points and a corresponding prior
record level of V, the same prior record level used by the trial
court in sentencing defendant. Defendant thus cannot show any harm
from the miscalculation of his prior record level. This assignment
of error is, therefore, overruled.
Defendant next argues that the evidence was insufficient to
show that he committed the offenses charged. "In reviewing the
denial of a defendant's motion to dismiss, this Court determines
only whether the evidence adduced at trial, when taken in the light
most favorable to the State, was sufficient to allow a rational
juror to find defendant guilty beyond a reasonable doubt on each
essential element of the crime charged."
State v. Cooper, 138 N.C.
App. 495, 497, 530 S.E.2d 73, 75,
aff'd per curiam, 353 N.C. 260,
538 S.E.2d 912 (2000). The State must be given the benefit of
every favorable inference to be drawn from the evidence.
Id.
Contradictions and discrepancies must be resolved in favor of the
State and do not warrant dismissal.
State v. Lucas, 353 N.C. 568,
581, 548 S.E.2d 712, 721 (2001),
overruled in part on other grounds
by State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005).
To obtain a conviction for felonious larceny, the State must
show that defendant "(1) took the property of another, (2) with a
value of more than $1,000.00, (3) carried it away, (4) without the
owner's consent, and (5) with the intent to deprive the owner of
the property permanently."
State v. Owens, 160 N.C. App. 494, 500,
586 S.E.2d 519, 523-24 (2003);
see also N.C. Gen. Stat. § 14-72(a)
(2003). Under the doctrine of recent possession, however,"possession of recently stolen property raises a presumption of the
possessor's guilt of the larceny of such property."
State v.
Maines, 301 N.C. 669, 673, 273 S.E.2d 289, 293 (1981). In order to
invoke the presumption, the State must "show[] beyond a reasonable
doubt: (1) the property described in the indictment was stolen;
(2) the stolen goods were found in defendant's custody and subject
to his control and disposition to the exclusion of others . . . ;
and (3) the possession was recently after the larceny, mere
possession of stolen property being insufficient to raise a
presumption of guilt."
Id. at 674, 273 S.E.2d at 293.
Here, defendant argues only that the evidence was insufficient
to establish that he was the person in possession of the stolen
van. The evidence, when taken in the light most favorable to the
State, however, tended to show that the van was stolen at
approximately 7:00 a.m. on 19 November 2001. At approximately 2:14
p.m. on that same day, Officer Solano observed defendant in the
driver's seat of the stolen van. Rodney Brown testified, in
addition, that defendant drove him to A&G Sportswear and then to
Independence Mall on the afternoon of 19 November 2001. Although
defendant argues that Brown's testimony was equivocal and
inconsistent in some respects, it is well settled that, in deciding
a motion to dismiss, any inconsistencies are to be resolved in the
State's favor.
Lucas, 353 N.C. at 581, 548 S.E.2d at 721.
In this case, utilizing the doctrine of recent possession, we
conclude that there was sufficient evidence to show that defendant
stole the Meals On Wheels van from the senior center on 19 November2001. The trial court, therefore, did not err in denying
defendant's motion to dismiss.
Finally, defendant argues that the trial court erred in
denying his motion for a mistrial based on the trial court's
instructions to the jury after they suggested that they were having
difficulty agreeing as to one count. It is well settled that the
decision of the trial court to grant or deny a mistrial is
reviewable only for an abuse of discretion.
State v. McCarver, 341
N.C. 364, 383, 462 S.E.2d 25, 36 (1995),
cert. denied, 517 U.S.
1110, 134 L. Ed. 2d 482, 116 S. Ct. 1332 (1996).
Guidelines for instructing a potentially deadlocked jury are
contained in N.C. Gen. Stat. § 15A-1235 (2003), which states in
pertinent part:
(c) If it appears to the judge that the
jury has been unable to agree, the judge may
require the jury to continue its deliberations
and may give or repeat the instructions
provided in subsections (a) and (b). The
judge may not require or threaten to require
the jury to deliberate for an unreasonable
length of time or for unreasonable intervals.
(d) If it appears that there is no
reasonable possibility of agreement, the judge
may declare a mistrial and discharge the jury.
N.C. Gen. Stat. § 15A-1235(c), (d). "The purpose behind the
enactment of N.C.G.S. § 15A-1235 was to avoid coerced verdicts from
jurors having a difficult time reaching a unanimous decision."
State v. Evans, 346 N.C. 221, 227, 485 S.E.2d 271, 274 (1997),
cert. denied sub nom. Gillis v. North Carolina, 522 U.S. 1057, 139
L. Ed. 2d 653, 118 S. Ct. 712 (1998).
In the instant case, the jury initially retired to begindeliberations at 2:51 p.m. At 4:50 p.m., the court brought the
jury back into the courtroom after receiving a note from the
jurors, asking, "What do we do if we cannot agree on one count[?]"
It was disclosed that the jury had agreed unanimously on one count,
but was divided eleven to one on the second count. On a previous
vote, the jury had been divided seven to five on the second count.
When asked by the court whether the jury was hopelessly deadlocked,
the foreperson said "no" and that, if given additional time, there
was a reasonable likelihood that the jury would reach a unanimous
verdict on the second count.
The court then gave the following instruction to the jury,
before sending them back out to deliberate further:
Ladies and gentlemen, the Court wants to
emphasize the fact that it is your duty to do
whatever you can to reach a verdict. You
should reason the matter over together as
reasonable men and women and to reconcile your
differences, if you can, without the surrender
of conscientious convictions. But no juror
should surrender his honest conviction as to
the weight or effect of the evidence solely
because of the opinion of his fellow jurors,
or for the mere purpose of returning a
verdict.
The jury retired to the jury room at 4:55 p.m. and returned with a
unanimous verdict on both counts at 5:20 p.m.
Defendant takes issue with the trial court's use of the phrase
from the pattern jury instruction that "it is your duty to do
whatever you can to reach a verdict," arguing that it coercive.
The use of this exact language has, however, been specifically
approved by our Supreme Court on several occasions.
See, e.g.,
State v. Jones, 342 N.C. 457, 468, 466 S.E.2d 696, 701,
cert.denied, 518 U.S. 1010, 135 L. Ed. 2d 1058, 116 S. Ct. 2535 (1996).
Defendant has failed to bring forth his remaining assignments
of error, and they are, therefore, taken as abandoned. N.C.R. App.
P. 28(b)(6). In light of the foregoing, we hold that defendant
received a fair trial, free from prejudicial error.
No error.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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