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.
No error.
Judges CALABRIA and JACKSON concur.
Report per rule 30(e).
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