Return to
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1643


Filed: 21 August 2007


         v.                    Pitt County
                            No. 05 CRS 59639

    Appeal by defendant from judgment entered 25 May 2006 by Judge William C. Griffin, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 6 August 2007.

    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 ***