An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA04-1401


Filed: 15 November 2005


    v.                            New Hanover County
                                No. 01 CRS 28582

    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.


    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.

    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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