An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-121


Filed: 2 January 2007


v.                        Pender County
                            No. 05 CRS 50665
JOSEPH GREGORY RABON,                    

    Appeal by defendant from judgment entered 9 November 2005 by Judge Jay D. Hockenbury in the Superior Court in Pender County. Heard in the Court of Appeals 14 November 2006.
Attorney General Roy Cooper, by Special Deputy Attorney General Jane T. Hautin, for the State.

Thomas R. Sallenger, for defendant-appellant.

HUDSON, Judge.
    On 23 May 2005, defendant was indicted for felonious breaking and entering, felonious larceny after breaking and entering, and felonious possession of stolen goods. On 9 November 2005, the trial jury found defendant guilty of each offense. The trial court arrested judgment on the conviction for felonious possession of stolen goods and sentenced defendant on the remaining convictions to an active term of eight to ten months, which the court then suspended and placed defendant on supervised probation for eighteen months. Defendant appeals. We conclude that the trial court did not err.     The evidence tends to show that Wayne Watkins had known defendant for several years and had sold marijuana to him regularly for about two years. Watkins kept his marijuana in a bookbag, and defendant had seen this when he came to make buys. Defendant also saw where Watkins kept his money. Around 8:00 or 9:00 on the evening of 12 March 2005, defendant telephoned Watkins and stated that he wanted to buy an eighth of an ounce of marijuana. Watkins and his girlfriend, Angela Hicks, drove to defendant's house to make the sale. Watkins told defendant that he was going to his parents' house to load up dirt bikes for a race the next morning. Watkins and Hicks went to Watkins's parents' house and then returned to Watkins's house, where they noticed that the air conditioner had been pulled from the window. When Watkins and Hicks opened the back door, three men rushed out. The first one out the door swung a sword at them that he had stolen from the house. Hicks tried to hold another of the men who looked familiar to her, but he pushed her away and ran off. She subsequently identified the man as defendant.
    Wayne Watkins called his uncle Tony who lives nearby, and together they chased down and caught one of the men, Thomas Pagano, who told them that the others had gotten away in a white Subaru. Hicks called Watkins's mother, Gail Watkins, and told her what hadhappened and that one of the burglars looked familiar. Ms. Watkins also spoke with Wayne, who told her that the other men had gotten away in a white four-door car. While on their way to Wayne's house, Ms. Watkins and her husband spotted the car and gave chase in their own vehicle. A state trooper and several sheriff's deputies pulled both cars over, and everyone returned to Wayne's house with police escort. Ms. Watkins and Michael Curlee of the Pender County Sheriff's Department positively identified defendant as the driver of the white Subaru. Steven Barger was in the back seat and was not wearing shoes; police found a pair of shoes in Watkins's yard. Michelle Barger was also in the vehicle. Wayne Watkins identified items found in the car as his, including forty to fifty DVDs, a gold bracelet, a green bookbag containing digital scales and approximately three ounces of marijuana, and about two hundred dollars in cash.
    At trial, Steven Barger testified that defendant was not involved in the breaking and entering or larceny. He testified that he, Thomas Pagano, and Justin Weber attended a birthday party on the evening of 12 March 2005 and that he called his sister, Michelle, to pick them up. Barger testified that Michelle, who was at a friend's house near defendant's, was going to get defendant to drive and that he told her to pick them up on the road. Then, ashe, Pagano, and Weber were walking down the road, he realized that they were close to Watkins's house, he knew that Watkins kept marijuana in his house, and he did not see Watkins's car in the driveway. Barger testified that he, Pagano, and Weber broke into Watkins's house and stole the items. Barger also said that after Watkins returned home and he and the others ran, Barger saw his sister Michelle and defendant driving down the street, and that he got in the car with them.
    Defendant first argues that the trial court erred in denying his motion to dismiss the charges of felonious breaking and entering and of felonious larceny for insufficiency of the evidence. We disagree.
    On review of the trial court's ruling on a motion to dismiss, we consider whether the State presented “substantial evidence” in support of each element of the charged offense and of defendant's identity as the perpetrator. State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980) (internal citation omitted). The ultimate question is whether a reasonable inference of the defendant's guilt may be drawn from the circumstances. State v. Lee, 348 N.C. 474, 488, 501S.E.2d 334, 343 (1998). On appeal, this Court evaluates the evidence in the light most favorable to the State and resolves contradictions in favor of the State. State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). The elements of felonious breaking and entering are (1) the breaking and entering (2) of any building (3) with the intent to commit any felony or larceny therein. N.C. Gen. Stat. § 14-54(a) (2004); State v. Garcia, 174 N.C. App. 498, 502, 621 S.E.2d 292, 295-96 (2005). The elements of larceny are that defendant: “(1) took the property of another; (2) carried it away; (3) without the consent of the owner; and (4) with the intent to deprive the owner of it permanently.” State v. Skinner, 162 N.C. App. 434, 443, 590 S.E.2d 876, 884 (2004). Larceny is a felony if committed pursuant to a violation of N.C. Gen. Stat. § 14-54. N.C. Gen. Stat. § 14-72(b)(2) (2005).
    Defendant does not assert that the State failed to present substantial evidence of any of the elements of either charge, but instead contends that the evidence fails to establish that he was the perpetrator. Defendant contends that the State's evidence fails to meet the minimal requirements of credibility and reliability as set forth in State v. Miller. 270 N.C. 726, 154 S.E.2d 902 (1967). In Miller, the Court held that while the credibility of witnesses and the weight of their testimony isgenerally a jury matter, a conviction is not supported by sufficient evidence where the only evidence identifying defendant “is inherently impossible or in conflict with indisputable physical facts or laws of nature.” Id. at 731, 154 S.E.2d at 905. In Miller, the sole identification testimony was that of a sixteen- year-old who was never closer than 286 feet from the man he saw running next to a burglarized building at nighttime. Id. at 732, 154 S.E.2d at 905. The Court in Miller also noted that as the witness did not already know defendant, “his testimony [wa]s not that he recognized at that distance a man previously known to him, but that he saw for the first time a stranger.” Id. In holding that the evidence was thus insufficient, the Court in Miller reiterated that “[w]here there is a reasonable possibility of observation sufficient to permit subsequent identification, the credibility of the witness' identification of the defendant is for the jury.” Id. at 732, 154 S.E.2d at 906.
Here, Angela Hicks identified defendant as one of the men fleeing Watkins's house and stated that he looked familiar to her when she saw him. Watkins's mother confirmed that Hicks told her shortly afterwards that defendant looked familiar to her. Morever, Hicks was face to face with defendant when she grabbed him. Furthermore, Thomas Pagano told Wayne and Tony Watkins shortlyafter the break-in that the others had driven away in a white Subaru. Defendant was found driving a white Subaru, also occupied by Steven Barger, which contained items stolen from Watkins's residence. Barger admitted he had participated in the events at issue. Defendant notes that Hicks originally told police that the person she had grabbed ran out of his shoes, but that it was in fact Barger, not defendant, whom police found barefoot. However, at trial Hicks stated that she did not actually see the person she grabbed run out of his shoes; she just saw him running in the direction where she saw the shoes and assumed at that time that they had been defendant's. We conclude that this is merely a possible conflict in the evidence which must be resolved in favor of the State and not evidence which “is inherently impossible or in conflict with indisputable physical facts or laws of nature.” As we conclude that there was substantial evidence to support defendant's identity as a perpetrator, we overrule this assignment of error.
    Defendant next argues that the trial court erred in denying his motion to dismiss the charges of felonious possession of stolen goods. However, the trial court arrested judgment on this charge, and defendant has not argued how the submission of this charge tothe jury prejudiced him. We conclude that this assignment of error lacks merit.
    Finally, defendant contends that the trial court committed plain error when it instructed the jury on aiding and abetting. Where a defendant does not object to the jury instructions at trial, he may argue plain error on appeal. N.C. R. App. P. 10(b)(2). However, we apply the plain error rule “cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). In order to find a defendant guilty based upon a theory of aiding and abetting, the jury must find
        (1) that the crime was committed by another; (2) that the defendant knowingly advised, instigated, encouraged, procured, or aided the other person; and (3) that the defendant's actions or statements caused or contributed to the commission of the crime by the other person.
State v. Francis, 341 N.C. 156, 161, 459 S.E.2d 269, 272 (1995). Defendant asserts that the evidence here does not support a conviction based on aiding and abetting. As we conclude that there was ample evidence to support defendant's conviction on thistheory, we likewise conclude that the trial court did not commit plain error in instructing the jury as such.
    No error.
    Judges WYNN and STEPHENS concur.
    Report per Rule 30(e).
    The judges participated and submitted this opinion for filing prior to 1 January 2007.

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