An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-98

NORTH CAROLINA COURT OF APPEALS

Filed: 18 October 2005

STATE OF NORTH CAROLINA

         v.                        Gaston County
                                Nos. 03 CRS 20299, 64947
MAUDE F. WALDEN,
    Defendant.                        
    

    Appeal by Defendant from judgments entered 10 September 2004 by Judge F. Donald Bridges in Superior Court, Gaston County. Heard in the Court of Appeals 3 October 2005.

    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.
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    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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