STATE OF NORTH CAROLINA
v. Gaston County
Nos. 03 CRS 20299, 64947
MAUDE F. WALDEN,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
John W. Congleton, for the State.
William D. Auman, for defendant-appellant.
WYNN, Judge.
“The doctrine of possession of recently stolen goods as
recognized by our Courts affords evidence that the possessor is
guilty of larceny.” State v. Tucker, 14 N.C. App. 605, 607, 188
S.E.2d 555, 557 (1972). Because in this case, the jury
instructions on the doctrine of recent possession were only an
evidentiary circumstance to be considered by the jury along with
all other circumstances, we hold that the trial court did not err
in denying Defendant's motions to dismiss. We also hold that the
State submitted substantial evidence to support each element of the
offenses of felonious larceny of a motor vehicle, driving while
impaired, and driving while license revoked. Defendant Maude F. Walden was charged with felonious larceny
of a motor vehicle, driving while impaired, and driving while
license revoked. The State's evidence tended to show that at about
1:15 a.m. on 30 September 2003, Michael Guin awoke at his home to
the sound of his truck being started. Guin called 911. Guin did
not give his consent to allow anyone other than himself to use his
truck, and testified that the value of the truck on 30 September
2003, was more than $1000.
Officer J. E. Paysour of the Gaston County Police Department
responded to Guin's 911 call. At Guin's residence, Officer Paysour
obtained make, model, and tag number information for the missing
vehicle and communicated that information to the county
communication system, which transmits information to police
officers who are on patrol in Gaston County.
At about 2:10 a.m., after hearing information about the stolen
vehicle on his police radio, Officer John Holloman of the Gaston
County Police Department saw a truck that fit the description of
Guin's stolen truck and proceeded to follow it. Officer Holloman
confirmed with Officer Paysour that the truck he was following was
the identical make, model, and color, and had the same tag number
as Guin's stolen truck. Officer Holloman followed the vehicle for
about a mile, at which time the officer noticed that the truck
stopped at a green light for about five seconds. Officer Holloman
noticed the driver of the truck did not use a turn signal when it
made a turn, and was driving five to ten miles above the posted
speed limit on a “curvy” road. Officer Holloman attempted to stop the truck by activating the
blue lights on his vehicle. Once his blue lights were activated,
the truck made a wide right turn, narrowly missing an oncoming
police patrol car. Shortly thereafter, the truck stopped.
Throughout the pursuit, Officer Holloman maintained visual contact
with the only two people he observed in the truck and “saw that
neither occupant switched place[s]” but “stayed in their . . .
respective seats the whole time.”
After the truck stopped, the driver, who Officer Holloman
identified as Defendant, exited the vehicle. The officer noted
that when getting out of the truck, Defendant stumbled and fell
against the truck door. The officer also noticed that Defendant
had difficulty understanding his verbal commands. For example,
initially, Defendant did not comply with Officer Holloman's command
to walk backwards towards him and she failed to place the truck
keys on the ground, as instructed. Defendant finally did walk back
to the officer, and she was taken into custody.
Thereafter, Officer Holloman approached the vehicle to confirm
that there was only one passenger in the truck, at which time he
detected “an odor of alcohol inside the vehicle[.]” Later while
interacting with Defendant, Officer Holloman also smelled a “strong
odor of alcohol” about Defendant's person, and observed that her
eyes were bloodshot and her speech was slurred. Defendant failed
to produce a valid driver's license and refused to submit to
dexterity tests and an intoxilyzer test. Based upon his
observations of Defendant, Officer Holloman formed an opinion that“Defendant had consumed a sufficient amount of an impairing
substance to impair his or [sic] her physical and/or mental ability
to operate a motor vehicle.” The officer described Defendant's
impairment as extreme.
At trial, the parties stipulated that Defendant's driver's
license and driving privilege were revoked on 30 September 2003,
and that Defendant had actual and constructive notice and knew that
her driver's license and driving privilege were revoked on or about
30 September 2003. Defendant did not present any evidence.
A jury found Defendant guilty as charged. The trial court
determined Defendant to be a prior record Level V offender for the
felony larceny of a motor vehicle and driving while impaired
convictions, and sentenced Defendant to a consolidated term of
fourteen to seventeen months imprisonment for those convictions.
The trial court found Defendant to be a Level III offender for the
driving while license revoked conviction, and sentenced her to a
consecutive term of 120 days for that conviction. The court
suspended that sentence, and placed Defendant on supervised
probation for eighteen months. Defendant appeals.
_________________________________________
By her first assignment of error on appeal, Defendant argues
that the trial court erred by denying her request for an amended
jury instruction with regard to the doctrine of recent possession.
Specifically, Defendant contends that the use of the term
“unlikely” in the third part of North Carolina Pattern Instruction,
Criminal 104.40 “allows the [S]tate to circumvent their beyond areasonable doubt burden of proof.” We disagree.
“The doctrine of possession of recently stolen goods as
recognized by our Courts affords evidence that the possessor is
guilty of larceny. It is only an evidentiary circumstance to be
considered by the jury along with all other circumstances.”
Tucker, 14 N.C. App. at 607, 188 S.E.2d at 557; see also State v.
Maines, 301 N.C. 669, 674, 273 S.E.2d 289, 293 (1981); State v.
Fair, 291 N.C. 171, 173, 229 S.E.2d 189, 190 (1976). “The
presumption arising from the possession of recently stolen property
d[oes] not shift the burden of proof to the defendant, or deprive
him [or her] of the benefit of the presumption of his [or her]
innocence or of the rule requiring proof of his [or her] guilt
beyond a reasonable doubt.” Tucker, 14 N.C. App. at 607, 188
S.E.2d at 557; see also Maines, 301 N.C. at 674, 273 S.E.2d at 293;
Fair, 291 N.C. at 173, 229 S.E.2d at 190.
N.C.P.I., Crim. 104.40 is the pattern jury instruction for the
doctrine of recent possession. The third part of N.C.P.I., Crim.
104.40 includes the “unlikely” standard.
In State v. Joyner, the
trial court utilized
N.C.P.I., Crim. 104.40 and our Supreme Court
concluded that
[w]hile the trial judge . . . referred to the
“doctrine of recent possession,” he nowhere
charged that the fact of possession raised a
presumption or even an inference that
defendant was guilty of any of the crimes
charged against him. He merely stated that
the jury might consider defendant's recent
possession “together with all the other facts
and circumstances in deciding whether or not
the defendant is guilt of . . . larceny.”
301 N.C. 18, 29, 269 S.E.2d 125, 132 (1980); see also State v.Ethridge, 168 N.C. App. 359, 363-64, 607 S.E.2d 325, 328 (2005).
The Court, therefore, held
“that the trial judge properly
instructed the jury that it could consider defendant's recent
possession of the stolen property as a relevant circumstance in
determining whether defendant was guilty of all the crimes charged
against him[.]” Joyner
, 301 N.C. at 29, 269 S.E.2d at 132; see
also Ethridge, 168 N.C. App. at 364, 607 S.E.2d at 328; State v.
O'Kelly, 20 N.C. App. 661, 664-65, 202 S.E.2d 482, 484-85 (holding
that there was “no prejudicial error” in the jury instruction,
which tracks
N.C.P.I., Crim. 104.40
)
, rev'd on other grounds, 285
N.C. 368, 204 S.E.2d 672 (1974)
.
Defendant argues that the beyond a reasonable doubt standard
is circumvented by the use of the word “unlikely” in N.C.P.I.,
Crim. 104.40, and therefore, the trial court erred in refusing to
give the requested amended jury instruction that replaced
“unlikely” with “could not.”
Defendant references State v.
Frazier, 268 N.C. 249, 150 S.E.2d 431 (1966), in support of her
argument in this regard.
We note, however, that Frazier is readily distinguishable from
the case at hand. In Frazier, the trial court instructed the jury
that the possession of stolen goods “so recent as to make it
extremely probable that the holder is the one who took it” created
a “presumption” of guilt “perhaps requiring, a conviction[.]” 268
N.C. at 254, 150 S.E.2d at 435-36.
The Supreme Court held that
such an instruction was erroneous and prejudicial. Id. at 254, 150
S.E.2d at 436.
In the instant case, much like
Joyner
, Ethridge, and O'Kelly,
the trial court followed N.C.P.I., Crim. 104.40 and properly
instructed the jury that the doctrine of recent possession was an
evidentiary tool, and did not create a presumption of guilt.
Contrary to Defendant's position, the trial court's instruction did
not allow the State to circumvent their burden of proving
Defendant's guilt beyond a reasonable doubt, nor did the
instruction create a presumption of guilt. We conclude then that
the trial court properly instructed the jury as to the doctrine of
recent possession, and did not err in denying Defendant's request
for an amended jury instruction. This assignment of error is,
therefore, overruled.
By her second assignment of error, Defendant argues that the
trial court erred by denying her motions to dismiss all of the
charges due to insufficient evidence.
Defendant contends that the
State did not present substantial evidence at trial to support her
convictions of the felonious larceny of a motor vehicle, driving
while impaired, and driving while license revoked charges.
Again,
we disagree.
A motion to dismiss is properly denied if “there is
substantial evidence (1) of each essential element of the offense
charged and (2) that defendant is the perpetrator of the offense.”
State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990),
appeal after remand at, 337 N.C. 415, 445 S.E.2d 581 (1994).
Substantial evidence is that relevant evidence “a reasonable mind
might accept as adequate to support a conclusion.” State v.Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). When
ruling on a motion to dismiss, this Court must consider the
evidence in the light most favorable to the State, giving the State
the benefit of every favorable inference to be drawn therefrom.
State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998).
“The test for sufficiency of the evidence is the same regardless of
whether the evidence is circumstantial or direct.” State v.
Harding, 110 N.C. App. 155, 162, 429 S.E.2d 416, 421 (1993)
(citations omitted). “Contradictions and discrepancies are for the
jury to resolve and do not warrant [dismissal].” State v. Pallas,
144 N.C. App. 277, 286, 548 S.E.2d 773, 780 (2001) (citation
omitted).
“To convict a defendant of larceny, it must be shown that [the
defendant] (1) took the property of another; (2) carried it away;
(3) without the owner's consent, and (4) with the intent to deprive
the owner of the property permanently.” State v. Reeves, 62 N.C.
App. 219, 223, 302 S.E.2d 658, 660 (1983); see also N.C. Gen. Stat.
§ 14-72(a) (2004). “Larceny of goods of the value of more than one
thousand dollars ($1,000) is a Class H felony.” N.C. Gen. Stat. §
14-72(a).
As discussed above, the doctrine of recent possession is an
evidentiary mechanism by which the State may prove a defendant's
guilt of felonious larceny. “When the doctrine of recent
possession applies in a particular [felonious larceny] case, it
suffices to repel a motion for nonsuit and defendant's guilt or
innocence becomes a jury question.” Maines, 301 N.C. at 674, 273S.E.2d at 293; see also State v. Hales, 32 N.C. App. 729, 732, 233
S.E.2d 601, 603, disc. review denied, 292 N.C. 732, 235 S.E.2d 782
(1977).
To apply the doctrine of recent possession, however, three
conditions must be met:
(1) the property described in the indictment
was stolen; (2) the stolen goods were found in
defendant's custody and subject to his [or
her] control and disposition to the exclusion
of others though not necessarily
found in
defendant's hands or on his [or her] person so
long as he [or she] had the power and intent
to control the goods; and (3) the possession
was recently after the larceny[.]
Maines, 301 N.C. at 674, 273 S.E.2d at 293 (citations omitted); see
also Ethridge, 168 N.C. App. at 363, 607 S.E.2d at 328.
Here, Defendant argues only as to the absence of the second
element of this test. Defendant references Maines, 301 N.C. 669,
273 S.E.2d 289, in support of her position in this regard. In
Maines,
the Supreme Court of North Carolina held the “defendant did
not have . . . exclusive possession of the [stolen] property
necessary to justify an inference of guilt,” where the defendant
was driving a car, and “the [stolen] goods were found in [the] car
and persons other than defendant were present in the car, including
the owner of the vehicle.” 301 N.C. at 675-76, 273 S.E.2d at 294-
95.
This case is, however, readily distinguishable from Maines.
Though Defendant did drive Guin's stolen truck with another person
in it, the evidence tends to show that in this case, the owner of
the truck was not the other person in the truck. Moreover,
Defendant had actual possession of the stolen item in that she
drove the truck, and the stolen item was the truck itself, and notjust certain articles in the truck as in Maines. Finally, Officer
Holloman confirmed that the truck driven by Defendant, on the
evening in question, was indeed the truck stolen from Guin's
residence less than an hour before he began to follow Defendant.
Thus, the State satisfied its burden of proving all of the elements
necessary for the application of the doctrine of recent possession,
so as to justify submitting Defendant's guilt of felonious larceny
to the jury. See Maines, 301 N.C. at 674, 273 S.E.2d at 293
(noting that a defendant's motion to dismiss the charge of felony
larceny is properly denied and his guilt is a jury question if the
doctrine of recent possession is applicable). Hence, the trial
court properly denied Defendant's motion to dismiss that charge.
Defendant further challenges the sufficiency of the evidence
to convict her of the driving while impaired charge.
To obtain a conviction of driving while impaired, the State
must show “(1) [d]efendant was driving a vehicle; (2) upon any
highway, any street, or any public vehicular area within this
State; (3) while under the influence of an impairing substance.”
State v. Mark, 154 N.C. App. 341, 345, 571 S.E.2d 867, 870 (2002),
aff'd, 357 N.C. 242, 580 S.E.2d 693 (2003); see also N.C. Gen.
Stat. §
20-138.1
(2004)
. “[O]ne 'drives' within the meaning of
G.S. 20-138.1 if he [or she] is in actual physical control of a
vehicle which is in motion or which has the engine running.” State
v. Fields, 77 N.C. App. 404, 406, 335 S.E.2d 69, 70 (1985). It is
well settled that a defendant's refusal to submit to an intoxilyzer
test “is admissible as substantive evidence of a defendant's guilt”of driving while impaired. State v. Allen, 164 N.C. App. 665, 668,
596 S.E.2d 261, 263 (2004). Furthermore, “[t]he opinion of a law
enforcement officer . . . has consistently been held sufficient
evidence of impairment, provided that it is not solely based on the
odor of alcohol.” Mark, 154 N.C. App. at 346, 571 S.E.2d at 871.
The evidence in the light most favorable to the State tends to
show that Officer Holloman observed Defendant in physical control
of the stolen truck while it was in motion and had its engine
running while following the vehicle. Also, when Officer Holloman
followed the stolen truck that was driven by Defendant, the truck
traveled on several public streets and highways.
Officer Holloman
concluded Defendant was “extremely” impaired and “had consumed a
sufficient amount of an impairing substance to impair his or [sic]
her physical and/or mental ability to operate a motor vehicle”
after observing Defendant stop at a green light, not use the
truck's turn signal when making a turn, “narrowly miss[]” an
oncoming police patrol car when making a wide turn, stumble and
fall against the truck door when exiting the vehicle, fail to
comply with law enforcement's commands; and noticing that she had
a strong odor of alcohol about her breath and body, bloodshot eyes,
and slurred speech.
Finally, Defendant “willfully refused” to
submit to an intoxilyzer test.
On this evidence, we conclude there
was sufficient evidence to support Defendant's conviction of
driving while impaired. As a final point, we address Defendant's
final contention that the evidence was insufficient to submit the
charge of driving while license revoked to the jury. To obtain a conviction of driving while license revoked
charge, the State must produce substantial evidence “that (1) [the
defendant] operated a motor vehicle, (2) on a public highway, (3)
while his [or her] operator's license was suspended or revoked, and
(4) had knowledge of the suspension or revocation.” State v.
Woody, 102 N.C. App. 576, 578, 402 S.E.2d 848, 850 (1991); see also
N.C. Gen. Stat. §
20-28(a)
(2004)
. As noted above, there is
substantial evidence Defendant operated a motor vehicle on a public
highway. Also, the parties stipulated that Defendant's driver's
license and driving privilege were revoked on 30 September 2003,
and that Defendant had actual and constructive notice and knew that
her driver's license and driving privilege were revoked on or about
30 September 2003. Hence, there was sufficient evidence to support
Defendant's conviction of driving while license revoked.
In light of the foregoing, we conclude that the trial court
did not err in denying Defendant's motion to dismiss all of the
charges due to insufficient evidence.
No error.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).
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