STATE OF NORTH CAROLINA
v. Rockingham County
No. 06 CrS 50256
ROBERT THOMAS WINCHESTER, SR.
Attorney General Roy Cooper, by Assistant Attorney General
Anne Goco Kirby, for the State.
Anne Bleyman, for defendant-appellant.
MARTIN, Chief Judge.
Defendant was found guilty of felonious breaking and entering,
felonious larceny, and felonious possession of stolen goods.
Judgment was arrested on the conviction of felonious possession of
stolen goods. The remaining two convictions were consolidated for
judgment and defendant was sentenced to active imprisonment for a
minimum term of nine months and a maximum term of twelve months.
The State presented evidence tending to show that at approximately 3:15 a.m. on 20 January 2006, Officer Doyle O'Bryant of the Reidsville Police Department received a call to investigate an alarm at the Sears store on Freeway Drive. Officer O'Bryant arrived first to the scene and noted the glass front door of the store had been broken open. Shortly thereafter the store ownerarrived and identified as missing from the store two Craftsman pressure washers, a thirteen-inch Sears Prima television, and a Prima television remote control. Officer O'Bryant found the pressure washers abandoned in a drainage ditch about fifty feet from the store.
Officer John Pulliam of the Reidsville Police Department also received a call to respond to the alarm at 3:23 a.m. on 20 January 2006. He arrived at the store at 3:41 a.m. While traveling to the Sears store, he observed a man on a bicycle traveling north on Freeway Drive approximately one-eighth of a mile from the Sears store.
Deputy Charles Roberts of the Rockingham County Sheriff's Department heard the dispatch about the alarm at the Sears store and an officer say he had seen a man riding a bicycle north in the vicinity. Deputy Roberts drove north of the Sears store and saw a man pushing a bicycle across the parking lot of the First National Bank. Deputy Roberts stopped and searched the man, whom he identified as defendant, and found a remote control inside a zip lock bag in defendant's coat pocket and a hammer in the waistband of defendant's pants.
The owner of the Sears store on Freeway Drive identified the remote control as one that went with the thirteen-inch Prima television he discovered missing from the store. He testified that Sears is the only retailer that sells Prima televisions and that the remote control to a Prima television set is packaged in a zip lock bag by the manufacturer. The television set is placed ondisplay, unplugged, with the remote control next to it.
Defendant did not present any evidence.
Defendant brings forward three assignments of error. First, he assigns as error the denial of his motion to dismiss the charges for insufficient evidence. A motion to dismiss requires the court to determine whether there is substantial evidence to establish each element of the offense charged and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). 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, 265 S.E.2d 164, 169 (1980). In making this determination, the court must examine the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference that may be deduced from the evidence and leaving contradictions or discrepancies in the evidence for the jury to resolve. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992).
When there is evidence that a store has been broken into and merchandise has been stolen therefrom, one's 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. State v. Lewis, 281 N.C. 564, 567-68, 189 S.E.2d 216, 219 (1972). The presumption arises upon a showing that (1) the property described in the indictment was stolen; (2) the stolen goods were found in the defendant's custody and subject to his control and disposition to the exclusion of others . . . ; and (3)the defendant's possession was recently after the larceny, mere possession of stolen property being insufficient to raise a presumption of guilt. State v. Maines, 301 N.C. 669, 674, 273 S.E.2d 289, 293 (1981).
The purpose of the recency requirement is to determine whether the accused's possession of stolen property is sufficiently short under the circumstances of the case to rule out the possibility of a transfer of the stolen property from the thief to an innocent party. The possession must be so recent after the breaking or entering and larceny as to show that the possessor could not have reasonably come by it, except by stealing it himself or by his concurrence.
State v. Hamlet, 316 N.C. 41, 43, 340 S.E.2d 418, 420 (1986).
Defendant argues the doctrine of recent possession is inapplicable to identify him as the perpetrator of the offenses because the State's evidence failed to establish that the remote control found on defendant's person was stolen from the Sears store on Freeway Drive. He maintains the remote control was not sufficiently unique to permit positive identification of it as having been taken during the breaking and entering of the store. We disagree.
It is not necessary that stolen property be unique to be identifiable. Often stolen property consists of items which are almost devoid of identifying features, such as coins and goods which are mass produced and nationally distributed under a brand name. When such items are the proceeds of a larceny, their identity as being in the possession of the accused must necessarily be drawn from other facts satisfactorily proved.
State v. Crawford, 27 N.C. App. 414, 415, 219 S.E.2d 248, 249 (1975). The evidence in this case shows that the alarm in the store sounded at approximately 3:15 a.m. Between 3:30 a.m. and 3:40 a.m., or less than thirty minutes later, Deputy Roberts stopped and searched defendant in the vicinity of the Sears store and found in defendant's pocket a remote control and in defendant's sweat pants a claw hammer. One does not ordinarily ride a bicycle at 3:30 a.m. on a cold January morning with a claw hammer placed inside one's pants. The remote control was in a zip lock bag as it was packaged in the factory. The remote control was to a model of television sold exclusively by Sears. The remote control operated the same model of television discovered missing from the Sears store. Based upon this evidence, we conclude a jury could reasonably find that defendant, either acting alone or with an accomplice, broke into the Sears store and stole the remote control and other items discovered missing from the store.
Second, defendant contends the court committed plain error in its instruction on breaking or entering by failing to define the terms breaking and entering. Defendant neither requested the instruction nor objected to the court's failure to define the terms. This Court has held that in absence of a request for special instruction, the court's failure to define the terms breaking or entering is not error because they are terms of common usage and meaning to the public. State v. Chambers, 52 N.C. App. 713, 720-21, 280 S.E.2d 175, 180 (1981). This contention is overruled.
Defendant lastly contends the court committed plain error byadmitting into evidence the hammer Deputy Roberts found in defendant's possession. Defendant argues that although another detective testified that the hammer contained on its head a glittery powder substance that appeared to be glass residue, there was no evidence to connect the hammer to the breaking of the glass door at the Sears store. Plain error is defined as one which is so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached. State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987). Assuming, arguendo, there was an error in admitting the hammer into evidence, it did not rise to this level.
Judges CALABRIA and JACKSON concur.
Report per rule 30(e).
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