An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1502


Filed: 6 September 2005

        v.                        Forsyth County                            
                                Nos. 02CRS63910;
LANDON EVERETTE CARY,                    03CRS16574

    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
    We note defendant has abandoned his remaining assignments of error as set out in the record, but not argued in his brief. N.C. R. App. P. 28 (b) (5); See State v. Wilson, 289 N.C. 531, 535, 223 S.E.2d 311, 313 (1976).

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