STATE OF NORTH CAROLINA
v. Cumberland County
No. 04 CRS 55044
BENNIS STEPHON GLOVER
Attorney General Roy Cooper, by Assistant Attorney General
Elizabeth N. Strickland for the State.
Thomas R. Sallenger for defendant-appellant.
ELMORE, Judge.
Bennis Stephon Glover (defendant) was indicted for breaking or
entering a motor vehicle, misdemeanor larceny, and misdemeanor
possession of stolen goods. In a separate bill of indictment,
defendant was charged with attaining habitual felon status. On 1
December 2004 a jury convicted defendant of breaking or entering a
motor vehicle, misdemeanor larceny, and misdemeanor possession of
stolen goods, and defendant pled guilty to being an habitual felon.
The court arrested defendant's conviction for possession of stolen
goods and sentenced defendant to 96 to 125 months imprisonment.
Defendant appeals, contending that there was insufficient evidence
to support his convictions and that the jury should not have beeninstructed on flight. For the reasons discussed below, we find no
error.
The State's evidence tended to show that Missouri National
Guardsmen Jonathan Rulon, Douglas Martin, Casey Utterback and John
Welch were staying at a Ramada Inn Hotel in Fayetteville upon being
stationed to Fort Bragg. On the morning of 10 March 2004, Rulon
was looking out his hotel room window and saw a male, later
identified as defendant, and a female walking down the road. Rulon
observed defendant, who had nothing in his hands, walk to the back
of a red truck parked in the hotel's parking lot and start “messing
around.” Defendant walked to each side of the truck, looking
around. Rulon put on his shoes, went outside and saw defendant
carrying away tools. Rulon asked defendant if those were his
tools. Defendant responded that they were and to leave him alone.
As defendant walked off, Rulon observed that the camper to the red
truck was still locked, but could be opened. Afterwards, Rulon
told the hotel's desk clerk that one of the trucks parked outside
had been robbed. Rulon subsequently phoned the police.
Rulon described defendant to his fellow guardsmen, Madden,
Martin, and Utterback. The guardsmen drove their vehicles in the
direction that defendant was walking. Rulon and Madden found
defendant behind a building “trying to hide the tools in his
sweatshirt.” Defendant told the men that the tools were his.
Rulon told defendant he was lying because Rulon had seen defendant
break into the truck. When defendant began to walk away with the
tools, Madden stepped in front of defendant. Defendant tried togive the tools back, but Rulon and Madden told defendant he was
“busted.” Defendant then dropped the tools and started to walk
away, but Madden detained defendant until police arrived by putting
defendant in a wrist lock. Sergeant Darry Whitaker of the
Fayetteville Police Department testified that after defendant was
advised of his Miranda rights, defendant confessed that he broke
into the truck and took the tools.
At trial, Welch testified that his “practically new” red truck
was “undamaged” when he parked it in the Ramada Inn's parking lot
the night prior to 10 March 2004. Upon examining the truck on 10
March 2004, he discovered that the brackets holding the lock to his
camper were bent, allowing the door to come open. He further
testified that two SK socket sets in green boxes and one set of
Craftsman wrenches had been removed from his truck, but were
returned to him by police. Welch stated that he had never met
defendant and he had not given defendant permission to enter his
truck or take his tools.
On appeal, defendant contends the court erred in denying his
motion to dismiss the charges against him. He argues the State
failed to prove that he was the perpetrator of the crimes. We
disagree.
The standard for ruling on a motion to dismiss “is whether
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).
“Substantial evidence is that amount of 'relevant evidencethat a reasonable mind might accept as adequate to support a
conclusion.'” State v. Williams, 355 N.C. 501, 579, 565 S.E.2d 609,
654 (2002) (quoting State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d
655, 663 (1995)), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808
(2003). In evaluating the motion the trial judge must consider the
evidence in the light most favorable to the State, allowing every
reasonable inference to be drawn therefrom.
State v. Davis, 130
N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998).
For the State to successfully obtain a conviction for breaking
or entering a motor vehicle, the State must prove the following
five elements beyond a reasonable doubt: (1) there was a breaking
or entering by the defendant; (2) without consent; (3) into a motor
vehicle; (4) containing goods, wares, freight, or anything of
value; and (5) with the intent to commit any felony or larceny
therein. See N.C. Gen. Stat. § 14-56 (2005). 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). To prove the charge of misdemeanor
possession of stolen goods, the State needed to proffer substantial
evidence that: (1) defendant possessed the property, (2) the
property had been stolen, (3) defendant knew or had reasonable
grounds to believe that the property was stolen, and (4) defendant
acted with a dishonest purpose. N.C. Gen. Stat. §§ 14-71.1, 14-72
(2005). Here, the State presented substantial evidence that defendant
broke into the cab of the red truck, which contained tools; that
defendant took some of the tools from the truck; that defendant had
the tools in his possession when confronted behind a building
moments later; Guardsman Welch did not give defendant permission to
enter his truck and take his tools. Moreover, defendant confessed
to breaking into the truck and taking the tools. The evidence
presented by the State was sufficient to submit the charges to the
jury. Thus, we find no error in the court's denial of the motion
to dismiss on that charge.
Defendant also contends the trial court erred in instructing
the jury on flight because he merely departed from the area and did
not “fle[e] the scene in a more dramatic posture.” We disagree.
“A flight instruction is appropriate where 'there is some
evidence in the record reasonably supporting the theory that
defendant fled after commission of the crime[.]'” State v.
Kornegay, 149 N.C. App. 390, 397, 562 S.E.2d 541, 546 (quoting
State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977)),
disc. review denied, 355 N.C. 497, 564 S.E.2d 51 (2002). “The
relevant inquiry concerns whether there is evidence that defendant
left the scene . . . and took steps to avoid apprehension.” State
v. Levan, 326 N.C. 155, 165, 388 S.E.2d 429, 434 (1990)).
After a review of the record before us, we conclude that the
evidence tended to show that defendant left the scene with the
intention of avoiding apprehension. First, when Rulon confronted
defendant at the crime scene, defendant told Rulon to leave himalone and defendant walked away. Once confronted by Rulon and
Madden at the building, defendant first attempted to leave with the
tools, but eventually dropped the tools and started to walk away.
We conclude this evidence reasonably supports the theory that
defendant left and took steps to avoid apprehension. Id.
Accordingly, the flight instruction was appropriate, and
defendant's assignment of error is without merit.
No error.
Judges McCULLOUGH and TYSON concur.
Report per Rule 30(e).
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