NO. COA04-1669
Appeal by defendant from judgment entered 13 July 2004 by
Judge E. Penn Dameron in
the Superior Court in Henderson County.
Heard in the Court of Appeals 12 October 2004.
Attorney General Roy Cooper, by Assistant Attorney General
J. Philip Allen, for the State
.
William D. Auman, for defendant-appellant.
HUDSON, Judge.
Defendant was tried for felonious breaking and entering,
larceny, and possession of stolen goods on 12 July 2004. Defendant
moved to dismiss
at the close of the State's evidence and at the
close of all the evidence, which motions the court denied. On 13
July 2004, the jury returned a verdict of guilty on all counts and
of the status offense of being a habitual felon. Defendant was
tried jointly with co-defendant Lafoy Ball, Jr., who was convicted
of the same offenses. Defendant received an active sentence in the
presumptive range of 116 to 149 months. Defendant appeals. We
hold that there was no error. The State introduced evidence that on
20 September 2003, at
around 1:30 p.m., two men in a truck pulled up to a house owned by
Charles Murphy and occupied by Murphy's daughter Charlene Pickens.
A neighbor, Paul Evington, testified that he looked out his window
and saw the men hurriedly grabbing outdoor furniture and putting it
on their truck. They then drove around to an outbuilding, where
Evington could not see them but could hear glass breaking.
Evington observed the men going back and forth between the
outbuilding and their truck, carrying boxes and cords to the truck.
They then got in the truck and left. While he watched, Evington
dialed 911 and reported what he was observing. He could not see
the men's faces well, as he was at a distance of 400 - 800 yards,
and he was not able to identify them in photographs or in person
thereafter. Evington thought both men were white males and that
the driver was wearing a white cut-off shirt and jeans and that the
passenger was wearing a white cap, a green shirt, and blue jeans.
About an hour and ten minutes after the initial 911 call,
police received a call from a “Mr. Allison” reporting that co-
defendant Ball
was trying to sell extension cords to the caller.
Ball's wife also called around the same time and reported that she
saw Ball's vehicle on Dillard Avenue. Sergeant McCrary of the
Henderson County Sheriff's department then encountered the vehicle,
which matched the description given by Evington and Ball's wife,and gave chase. Neither caller mentioned defendant or any
passenger. Mr. Allison did not testify. At trial, Sergeant Johnny
Duncan of the Henderson County Sheriff's Department testified that
he was involved in the chase with Sgt. McCrary, with McCrary
directly behind the truck and Duncan following McCrary. Duncan
testified that they chased the vehicle until it stopped at a dead-
end off a private road and co-defendant Ball fled into the woods;
both sergeants chased and apprehended him shortly thereafter. When
the chase ended, McCrary's patrol car stopped when it struck a
porch. Duncan testified that when they came back out of the woods
with Ball, McCrary went to notify the homeowner that his patrol car
had hit the porch and found defendant hiding behind some furniture
on the porch and took him into custody. Duncan noted that Ball was
wearing a “greenish tan” shirt and that defendant was wearing a
sleeveless shirt, of a color he could not remember, and jeans.
Charlene Pickens and Charles Murphy later identified the items
found in the truck as belonging to them. At trial, they testified
that the items had been taken from the home and outbuilding without
their permission.
Defendant first argues that the trial court committed plain
error by allowing defendant's case to be joined for trial with that
of co-defendant Ball. We disagree. As defendant did not object at
trial to the joinder of his case with co-defendant Ball's case, heargues that it was plain error for the court not to sever the cases
on its own motion.
See N.C. R. App. P. 10(c)(4) (2004). However,
our Supreme Court has limited plain error review to errors in a
trial court's jury instructions or rulings on admissibility of
evidence.
State v. Golphin, 352 N.C. 364, 460, 533 S.E.2d 168, 230
(2000). Our Courts have repeatedly declined to extend plain error
review to other issues.
See id. at 460, 533 S.E.2d at 231;
State
v. Fleming, 350 N.C. 109, 133, 512 S.E.2d 720, 737 (1999).
Furthermore, “[a] trial court's ruling on such questions of joinder
or severance, however, is discretionary and will not be disturbed
absent a showing of abuse of discretion.”
State v. Carson, 320
N.C. 328, 335, 357 S.e.2d 662, 666-67 (1987). And our Courts have
declined to apply plain error analysis to issues within the trial
court's discretion.
State v. Steen, 352 N.C. 227, 256, 536 S.E.2d
1, 18 (2000). We overrule this assignment of error.
Defendant next argues that the trial court erred in allowing
prejudicial hearsay testimony implicating co-defendant. We
disagree. At trial, Sgt. Duncan testified that he received a call
from “Mr. Allison” indicating that co-defendant Ball was attempting
to sell him extension cords. Defendant bears the burden of showing
prejudice, that “had the error in question not been committed, a
different result would have been reached at the trial out of which
the appeal arises.” N.C. Gen. Stat. § 15A-1443(a) (2004).
Weconclude that even if the trial court erred in admitting Sgt.
Duncan's testimony regarding Mr. Allison's statement to him,
defendant has failed to show prejudice. In light of the evidence
that the stolen extension cords were found in the constructive
possession of Ball and defendant
, we cannot conclude that absent
evidence that co-defendant Ball was trying to sell extension cords,
the jury would have reached a different decision as to defendant's
guilt.
Finally, defendant argues that the trial court erred in
failing to dismiss all charges for insufficiency of the evidence.
We disagree. In reviewing the trial court's ruling on a motion to
dismiss, we must evaluate the evidence in the light most favorable
to the State.
State v. Molloy, 309 N.C. 176, 179, 305 S.E.2d 718,
720 (1983). All contradictions must be resolved in favor of the
State.
Id. Ultimately, we must determine “whether a reasonable
inference of the defendant's guilt may be drawn from the
circumstances.”
State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334,
343 (1998). If the evidence supports a reasonable inference of
defendant's guilt, it is up to the jury to decide whether there is
proof beyond a reasonable doubt.
State v. Trull, 349 N.C. 428,
447, 509 S.E.2d 178, 191 (1998). This is true whether the evidence
is direct or circumstantial.
Id. However, the motion to dismiss
must be allowed if the evidence is “sufficient only to raise asuspicion or conjecture as to either the commission of the offense
or the identity of the defendant as the perpetrator.”
Molloy, 309
N.C. at 179, 305 S.E.2d at 720 (internal citation omitted).
The doctrine of recent possession permits a jury to infer
guilt of larceny and of breaking and entering.
That doctrine is simply a rule of law that,
upon an indictment for larceny, possession of
recently stolen property raises a presumption
of the possessor's guilt of the larceny of
such property . . . . Furthermore, when there
is sufficient evidence that a building has
been broken into and entered and thereby the
property in question has been stolen, the
possession of such stolen property recently
after the larceny raises presumptions that the
possessor is guilty of the larceny and also of
the breaking and entering . . . . [T]he
presumption spawned by possession of recently
stolen property arises when, and only when,
the State shows 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
though not necessarily found in defendant's
hands or on his person so long as he had the
power and intent to control the goods; and (3)
the possession was recently after the larceny.
State v. Maines, 301 N.C. 669, 673-74, 273 S.E.2d 289, 293 (1981).
Here, the evidence, taken in the light most favorable to the State
easily satisfies the first and third prongs of the doctrine of
recent possession: testimony was introduced which showed that the
items found in the truck were stolen and also that about an hour
passed between the time that the breaking and entering occurred andthe police found the stolen items in co-defendant's truck.
After
careful review of the record, we conclude that there was sufficient
evidence here to fulfill the possession requirement as well.
In
Maines, the Court explained that defendant's possession
of the stolen property may be constructive possession: “It is
sufficient that he be in such physical proximity to [the stolen
property] that he has the power to control it to the exclusion of
others and that he has the intent to control it.”
Id. at 675, 273
S.E.2d at 293-94.
Furthermore,
the exclusive possession required
to support an inference of guilt may be joint possession.
Id. at
675, 273 S.E.2d at 294.
“For the inference to arise where more
than one person has access to the property in question, the
evidence must show the person accused of the theft had complete
dominion, which might be shared with others, over the property
or
other evidence which sufficiently connects the accused person to
the crime.
” Id. (emphasis added).
Here, Paul Evington observed two men taking items from his
neighbor's outbuilding, one of whom was wearing a green shirt, and
the other a “cut off” shirt and jeans. Sgt. Duncan testified that
co-defendant Ball was wearing a “greenish tan” shirt and that
defendant was wearing a sleeveless shirt and jeans. Furthermore,
defendant was found hiding behind a dresser on a nearby porch and
“[a]n accused's flight is 'universally conceded' to be admissibleas evidence of consciousness of guilt and thus of guilt itself.”
State v. Jones, 292 N.C. 513, 525, 234 S.E.2d 555, 562 (1977).
Thus, we conclude that other evidence sufficiently connects
defendant to the crime, such that the possession requirement of the
doctrine of recent possession is also fulfilled.
We overrule this
assignment of error.
No error.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).
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