NO. COA04-1502
Appeal by defendant from an order dated 28 April 2004 by Judge
William Z. Wood, Jr. in Forsyth County Superior Court. Heard in
the Court of Appeals 22 August 2005.
Attorney General Roy Cooper, by Assistant Attorney General
John P. Scherer, II, for the State.
Gilda C. Rodriguez for defendant-appellant.
BRYANT, Judge.
Landon Everette
Cary (defendant) appeals from an order dated
28 April 2004 consistent with jury verdicts finding him guilty of
breaking and entering a motor vehicle and misdemeanor larceny.
The State's evidence showed on 17 December 2002, at
approximately 1:00 a.m., Ms. Lee Cole heard a car making loud
clicking noises traveling up and down the street. As she looked
out her window she saw a dark-colored sedan, without any lights on,
pull up to the residence of her neighbor, Mr. Greg Simoneau. Ms.Cole observed a driver and a passenger in the sedan. As the sedan
idled, Ms. Cole saw a stocky young male run to her neighbor's
vehicle. The passenger retrieved items from Mr. Simoneau's
vehicle, and returned to his sedan, carrying something “tucked
under his arm” and something “with a handle” in his other hand.
Ms. Cole described the passenger as solid, thick-looking and of a
football player's build in the way he “moved and carried himself.”
Ms. Cole called Mr. Simoneau to report what she had seen, and
Mr. Simoneau immediately called the police. It was just before
2:00 a.m. While waiting for the police to arrive, Mr. Simoneau
went to his vehicle and found the internal light on and the door
ajar. He observed that his portable DVD player, his black leather
briefcase, and his Uniden radar detector were missing.
Approximately ten minutes later, Deputy R.E. Anderson and Corporal
Gary Simpson of the Forsyth County Sheriff's Office arrived.
Anderson radioed a description of the vehicle and began looking for
a dark-colored sedan making a distinctive sound or loud noise.
Within four to five miles of Mr. Simoneau's residence, Simpson
stopped a dark-colored two-door, 1987 Oldsmobile. The sedan was
making a distinctive clicking sound
and occupied by two males
. The
passenger in the sedan was approximately five feet nine inches tall
and weighed about 240 to 250 pounds. Simpson described the
passenger as having a stocky build and identified defendant as thepassenger in the sedan, even though defendant had given Simpson a
different name at the traffic stop. Simpson testified he found the
following items Mr. Simoneau described in the sedan: a Pioneer mini
DVD player, a Uniden laser radar detector, a black leather
briefcase, and a CD case with compact discs.
Following guilty verdicts for breaking and entering of a motor
vehicle, defendant plead guilty to Habitual Felon Status.
Defendant appeals.
The sole issue defendant raises and argues on appeal is
whether the trial court erred in denying defendant's motion to
dismiss the charges of breaking and entering into a vehicle and
larceny.
(See footnote 1)
“In considering a motion to dismiss, it is the duty of the
court to ascertain whether there is substantial evidence of each
essential element of the offense charged.”
State v. Smith, 300
N.C. 71, 78, 265 S.E.2d 164, 169 (1980). “Substantial evidence is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”
Id. at 78-79, 265 S.E.2d at
169. In ruling on a defendant's motion to dismiss, the evidence isviewed in the light most favorable to the State and the State is
allowed every reasonable inference.
See id. To prove breaking and
entering into a motor vehicle, the State must show “(1) a breaking
or entering (2) without consent (3) into any motor vehicle (4)
containing . . . anything of value (5) with the intent to commit
any felony or larceny therein.” N.C. Gen. Stat. § 14-56 (2005);
State v. Riggs, 100 N.C. App. 149, 155, 394 S.E.2d 670, 673 (1990).
To prove larceny the State must show that the defendant took
property belonging to another person, without that person's
consent, with the intent to permanently deprive the owner of the
property and to convert it to the defendant's own use.
State v.
Boykin, 78 N.C. App. 572, 576, 337 S.E.2d 678, 681 (1985).
The doctrine of recent possession “'allows the jury to infer
that the possessor of certain stolen property is guilty of
larceny.'”
State v. Osborne, 149 N.C. App. 235, 238, 562 S.E.2d
528, 531 (quotation omitted)
,
per curiam aff'd, 356 N.C. 424, 571
S.E.2d 584 (2002). The doctrine of recent possession also creates
a “presumption that a person in possession of recently stolen
property is guilty of [breaking and entering.]”
State v. McQueen,
165 N.C. App. 454, 459, 598 S.E.2d 672, 676 (2004) (citation
omitted). Under this doctrine, the State must show three things:
“(1) that the property was stolen; (2) that defendant had
possession of this same property; and (3) that defendant hadpossession of this property so soon after it was stolen and under
such circumstances as to make it unlikely that he obtained
possession honestly.”
Osborne at 238, 562 S.E.2d at 531.
In the instant case, defendant argues there was lack of
meaningful identification of defendant as the perpetrator and that
the State failed to provide physical evidence linking defendant to
the crime. We disagree. The strong circumstantial evidence as
viewed through the doctrine of recent possession, is more than
sufficient to withstand defendant's motion to dismiss. Ms. Cole
heard a car making a distinct clicking sound. She observed two men
inside a dark-colored sedan at Mr. Simoneau's house. Ms. Cole
testified she observed “the person who got out of the [sedan was]
of a stockier build.”
She saw the passenger taking items out of
Mr. Simoneau's car and place them in the sedan. Mr. Simoneau
described the missing items to the police. Within a short period
of time following the breaking and entering and larceny, the sedan
was stopped close to the crime scene. Deputy Simpson testified he
stopped a noisy, dark-colored sedan within a few miles of Mr.
Simoneau's house, with defendant as a passenger. Deputy Simpson
testified defendant was 5 feet, 9 inches tall; weighed 240 to 250
pounds; and wore a big, black hooded coat.
Found inside the sedan
shortly after the items were reported stolen were: a portable DVD
player; a Uniden radar detector; and a black leather briefcase. These were the same items identified by Mr. Simoneau
.
Based on the similar descriptions of defendant as given by Ms.
Cole and Deputy Simpson, the fact that defendant was found in the
sedan shortly after the items were reported stolen, and the fact
that the sedan contained the stolen items, there was sufficient
evidence of each element of breaking and entering into a motor
vehicle and larceny.
See State v. Friend, 164 N.C. App. 430, 439
596 S.E.2d 275, 282 (2004) (evidence submitted by the State was
sufficient to survive a motion to dismiss charges of felonious
breaking and entering, felonious larceny, and felonious possession
of stolen goods);
see also State v. Stokesberry, 28 N.C. App. 96,
98, 220 S.E.2d 214, 216 (1975) (where the State's evidence is
mostly circumstantial, that is not alone a reason to grant the
defendant's motion to dismiss). Here, defendant “had possession of
this property so soon after it was stolen and under such
circumstances as to make it unlikely that he obtained possession
honestly.”
Osborne at 238, 562 S.E.2d at 531.
This assignment of
error is overruled.
No error.
Judges MARTIN and GEER concur.
Report per Rule 30(e).
Footnote: 1