STATE OF NORTH CAROLINA
v. Pitt County
No. 05 CRS 59639
ELMER EUGENE HEATH
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Donald R. Teeter, Sr., for the State.
Robert J. McAfee, for defendant-appellant.
JACKSON, Judge.
Elmer Eugene Heath (“defendant”) appeals from a judgment
imposing active imprisonment upon his conviction by a jury of
felony larceny.
The State presented evidence tending to show that Mike Hooks
(“Hooks”) owned a farm house, two outbuildings, and open land at
5488 Weyerhaeuser Road in Ayden, which he began renting to
defendant for $650.00 per month in April 2004. Defendant resided
in the house with his wife and a young child. Hooks kept a Massey
Ferguson tractor, bush hog, and box blade at the Weyerhaeuser Road
location. Hooks purchased the tractor for the sum of $3,700.00 in
February 2005 for the purpose of mowing the pasture surrounding the
property. While residing at the Weyerhaeuser Road address,defendant used the tractor to mow around the property and elsewhere
with Hooks' consent.
In April 2005, Hooks came to the farm and observed that one of
the front tires on the tractor was flat. Defendant commented that
he had to pump up the tires each time he used the tractor. Hooks
told defendant that he would call a tire service to come out to the
farm and install two tires on the tractor. Defendant's wife
mentioned that defendant had a tire machine which he kept stored in
one of the outbuildings. She suggested that defendant change the
tires so there would be no service charge. Accepting her
suggestion, Hooks purchased the tires and defendant installed them
on the tractor. Defendant made no mention of expecting payment of
money for changing the tires. Hooks did not have an agreement with
defendant for defendant to perform the work and charge Hooks for
his labor.
Over time, defendant fell behind in his rental payments, and
Hooks credited defendant for payment of the April rent because
defendant performed work on a barn. Defendant did not pay rent for
the month of May until 27 June 2005. In August 2005, Hooks
instituted an action in small claims court to evict defendant.
Defendant appeared for the hearing in small claims court and handed
Hooks a bill for work he had performed on the tractor and an
outbuilding. Hooks refused to pay the bill. Hooks obtained a
judgment in the amount of $1,950.00 against defendant, and on 12
September 2005, defendant moved out of the residence. On that same
date, Hooks discovered that his tractor, bush hog, and blade all
were missing from the premises. Hooks kept the bush hog attached
to the tractor, but he kept the box blade at a separate location on
the property. Hooks immediately called the sheriff's department to
report a theft. The last time he had seen the tractor was on 23
July 2005, and at that time, he had removed the key from the
tractor.
Detective Tony Williams of the Pitt County Sheriff's Office
testified that Hooks contacted him, and reported that he suspected
a tenant took Hooks' tractor with him when he moved out of the
residence because the tenant claimed that Hooks owed the tenant
money for work the tenant had performed on the tractor. Based upon
this information, Detective Williams obtained a warrant for
defendant's arrest. Defendant met the officer at the magistrate's
office and told the officer that he was keeping the tractor because
Hooks owed money to him. Defendant stated the officer would not be
able to locate the tractor, and defendant would not state where the
tractor was located. Detective Williams asked defendant whether he
had taken out a mechanic's lien on the tractor, to which defendant
responded that he had not.
Defendant testified that he is self employed, and that he owns
Nationwide Recovery and Transport, a company that repossesses
vehicles, and Creekside Auto Salvage and Towing, which is a salvage
yard, body shop and garage. Defendant stated that he also repairs
vehicles. Defendant testified that while residing at the
Weyerhaeuser Road address, “we just messed with junk cars and we
had the shop in the back.” He stated that while he was renting theWeyerhaeuser address, Hooks brought a tractor out to the farm
Hooks then purchased tires, brought them to the farm, and asked
defendant to install them on front of the tractor. Hooks
subsequently purchased tires for the rear of the tractor and
defendant installed them also. About a week later, defendant
testified that his wife sent Hooks a bill in the amount of $195,
representing the cost of four hours of labor. Defendant stated that
Hooks never paid the bill. When defendant moved away from the
property, he loaded the tractor, took it with him, and kept it
behind a storage fence. After Detective Williams inquired about
the tractor, defendant filed a lien on it. Prior to moving out,
defendant spoke to Hooks several times about paying him for the
work he did to the barns and tractor. He also mailed Hooks a bill
prior to the filing of the small claims action but Hooks denied
receiving it. At the time of defendant's trial, he still had the
tractor in storage in Greene County.
Defendant contends the trial court erred by refusing to
instruct the jury as to a defense based upon mechanic's or
materialman's liens arising under North Carolina General Statutes,
section 44A-2. When the trial court conducted the charge
conference, defendant did not request that the court give this
instruction, and after the court completed its charge, defendant
voiced no objection to the charge given. By failing to request the
instruction and to object to the charge given, defendant waived
full appellate review of this issue and review must be for plain
error only. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378(1983). The burden therefore
is on defendant to show “(i) that a
different result probably would have been reached but for the error
or (ii) that the error was so fundamental as to result in a
miscarriage of justice or denial of a fair trial.” State v. Bishop,
346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997).
We hold the trial court committed no error, plain or
otherwise. The pertinent statute governing mechanic's liens,
section 44A-2(d), provides:
(d) Any person who repairs, services, tows, or
stores motor vehicles in the ordinary course
of the person's business pursuant to an
express or implied contract with an owner or
legal possessor of the motor vehicle, except
for a motor vehicle seized pursuant to G.S.
20-28.3, has a lien upon the motor vehicle for
reasonable charges for such repairs,
servicing, towing, storing, or for the rental
of one or more substitute vehicles provided
during the repair, servicing, or storage.
N.C. Gen. Stat. § 44A-2(d) (2005). We can find no evidence that
defendant replaced the tires “in the ordinary course of
[defendant's] business” at the time he replaced them or that
defendant had an express or implied contract with Hooks to replace
the tires in exchange for payment of money. A “trial court need
only give the jury instructions supported by a reasonable view of
the evidence.” State v. White, 77 N.C. App. 45, 52, 334 S.E.2d 786,
792, cert. denied, 315 N.C. 189, 337 S.E.2d 864 (1985). Therefore,
as the evidence failed to show that defendant was entitled to a
mechanic's lien, then the trial court did not err in failing to
give the instruction.
In his remaining assignment of error, defendant contends the
trial court erred in denying his motion to dismiss based upon an
insufficiency of the evidence. A motion to dismiss based upon an
insufficiency of the evidence requires
the court to determine
whether there has been substantial evidence presented 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).
The trial 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).
“To convict a defendant of felonious larceny, it must be shown
that he: (1) took the property of another, (2) with a value of more
than $ 1,000.00, (3) carried it away, (4) without the owner's
consent, and (5) with the intent to deprive the owner of the
property permanently.” State v. Owens, 160 N.C. App. 494, 500, 586
S.E.2d 519, 523.24 (2003).
Defendant specifically argues the
evidence fails to establish that he took the tractor (1) without
the owner's consent and (2) with the intent to permanently deprive
the owner of his tractor. Viewed in the light most favorable to the State, the evidence
shows that Hooks, the owner of the tractor, removed the key to the
tractor several weeks prior to the time he discovered the tractor
was missing, and that upon discovering the tractor was gone, he
reported to the Sheriff's Department that it had been stolen.
Based upon the foregoing evidence, a jury could reasonably find
that the taking of the tractor and the implements was without the
owner's consent.
A taker's intent to permanently deprive the owner of the
property may be inferred from circumstances which make it unlikely
that the owner will ever recover his property, and which disclose
the taker's total indifference to the owner's rights. State v.
Smith, 268 N.C. 167, 173, 150 S.E.2d 194, 200 (1966)
. At trial,
the evidence showed that defendant told Detective Williams that he
had the tractor and
“he was going to keep the tractor.” He also
told the detective that he “wasn't going to find it,” and in fact,
the detective never located the tractor.
Defendant never gave an
address where the tractor could be found. Based upon this
evidence, a jury could reasonably find that defendant intended to
permanently deprive the owner of the property.
Thus, defendant's
assignment of error is overruled.
No error.
Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***