Opinion
NO. COA12-82
10-16-2012
STATE OF NORTH CAROLINA v. GEORGE A. HARVEY, Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General Tracy J. Hayes, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Sampson County
No. 10 CRS 52009
Appeal by defendant from judgment entered 28 July 2011 by Judge Paul L. Jones in Sampson County Superior Court. Heard in the Court of Appeals 15 August 2012.
Attorney General Roy Cooper, by Special Deputy Attorney General Tracy J. Hayes, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for defendant-appellant.
Hunter, Robert C., Judge.
Defendant appeals from judgment entered after a jury found him guilty of possessing a stolen vehicle and attaining habitual felon status. On appeal, defendant argues the trial court erred by: (1) denying his motion to dismiss for insufficient evidence, and (2) instructing the jury on the doctrine of recent possession. After careful review, we find no error.
Background
The State's evidence tended to establish the following: On 26 August 2010, Officer Anthony David Smith ("Officer Smith") of the Clinton Police Department responded to a call from a Clinton Walmart complaining of someone harassing customers in the parking lot. Officer Smith found defendant, matching the description of the individual in the complaint, standing next to a Dodge Caravan. When Officer Smith asked defendant for his name, defendant lied, saying his name was "Daynez Newkirk." After learning defendant's true name, Officer Smith discovered defendant had outstanding arrest warrants from Duplin County. Officer Smith placed defendant under arrest, searched defendant, and found the keys to the Dodge Caravan in defendant's pocket. From the National Crime Information Center database, Officer Smith learned that the Dodge Caravan had been stolen in Lumberton three days prior, and he verified that the keys found on defendant were the keys to the stolen van.
At trial, defendant, acting pro se, testified that before Officer Smith arrived, two people defendant knew drove up in the van and asked defendant if he wanted "to take a load off." Defendant testified that when he said "yes," the driver threw the keys onto the floorboard of the van. Defendant claimed he never got inside the van, he did not have the keys to it in his pocket, and he did not know that the van was stolen.
At the jury charge conference, the State requested that the jury be instructed on the doctrine of recent possession. The trial court granted the State's request and instructed the jury on the doctrine modifying it slightly to make it clear that defendant was not charged with the actual theft of the van. On 28 July 2011, the jury found defendant guilty of possessing a stolen vehicle and attaining habitual felon status.
Arguments
I. Grounds for Review
First, we must determine whether defendant's appeal is properly before this Court. In a criminal case, a defendant may appeal by: (1) giving oral notice at trial, or (2) filing written notice with the Clerk of Superior Court and serving it on all adverse parties within fourteen days of judgment. N.C.R. App. P. 4(a) (2012). Here, defendant did not give proper oral or written notice of appeal as required by N.C.R. App. P. 4. It is well-established that if a defendant fails to give proper notice of appeal, this Court is without jurisdiction to hear the appeal. State v. McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 320, appeal dismissed, 360 N.C. 73, 622 S.E.2d 626 (2005); State v. Webber, 190 N.C. App. 649, 651, 660 S.E.2d 621, 622 (2008). However, despite the technical inadequacy of defendant's appeal and based on our discretion pursuant to N.C.R. App. P. 21(a) (2012), we grant defendant's petition for writ of certiorari.
With regard to defendant's purported oral notice of appeal, after sentencing, defendant said that the trial court and the "Court of Appeals" would see him again and that he "will win, guaranteed." However, we find this statement too ambiguous to constitute oral notice of appeal. Relatedly, with regard to defendant's attempt to provide written notice of appeal, on 2 August 2011, defendant mailed a handwritten notice of appeal to the Sampson County Clerk of Superior Court but did not mail it to the Sampson County District Attorney. Both the State and defendant note that defendant's written notice was "technically deficient," and we agree.
II. Motion to Dismiss for Insufficient Evidence
Defendant argues that the trial court erred in denying his motion to dismiss the possession of a stolen vehicle charge for insufficient evidence. As an initial issue, we must determine whether defendant preserved his argument for appeal. If we find that defendant did not preserve this issue for appeal, he requests the Court invoke Rule 2 and address his argument.
At the close of all the evidence at trial, defendant made the following motion:
I would like to file a motion to dismiss on the ground that my rights have been violated heinously and intentionally by your position and by the position of the District Attorney due to the fact I have been created with an impossibility to proceed from the beginning. My rights were violated because I was not allowed the proper manner to present my case. It appeared when it came time for me to present real facts concerning what has occurred during this time or during this investigation, that was never done, all the discovery rules were broken. So per the discovery rules and a few other issues, I don't see how I had a fair trial.After the trial court denied defendant's motion and began the jury charge conference, defendant argued that there was "no evidence presented" of who stole the van. However, the trial court told defendant, "[s]ir, I already said your motion is denied, so the argument on that is over." While defendant alleges these statements met the requirements of N.C.R. App. P. 10(a)(3), we disagree.
"In order to preserve a question for appellate review, a party must have presented the trial court with a timely request, objection or motion, stating the specific grounds for the ruling sought if the specific grounds are not apparent." State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991); see also N.C.R. App. P. 10(a)(1) (2012). While defendant argued that his motion to dismiss should be granted based on the trial court's violation of his "rights," he did not make any specific argument concerning the sufficiency of the evidence until after his motion to dismiss was already denied. Moreover, when a defendant presents a different argument on appeal concerning his motion to dismiss than he did at trial, the argument is waived on appeal. State v. Euceda-Valle, 182 N.C. App. 268, 272, 641 S.E.2d 858, 862, disc. review denied, 361 N.C. 698, 652 S.E.2d 923 (2007). Thus, defendant has failed to preserve this issue on appeal. However, we will review defendant's argument pursuant to N.C.R. App. P. 2 (2012).
"This Court reviews the trial court's denial of a motion to dismiss de novo." State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). When examining a defendant's motion for dismissal, we must determine if "there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied." State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). "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). "In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor." State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).
Here, defendant was charged with possession of a stolen vehicle pursuant to N.C. Gen. Stat. § 20-106 (2011). To survive a motion to dismiss, "the State must provide substantial evidence that defendant had possession of the stolen car" and "that defendant knew or had reason to know the car was stolen." State v. Suitt, 94 N.C. App. 571, 573, 380 S.E.2d 570, 571 (1989).
Defendant asserts, and we agree, that the only evidence suggesting he had possession of the van is his proximity to it and Officer Smith's testimony that he found the keys to the van in defendant's pocket. Thus, we must determine if those two factors are sufficient to establish defendant had possession of the van. "'A person is in constructive possession of a thing when, while not having actual possession, he has the intent and capability to maintain control and dominion over that thing.'" State v. Marshall, 206 N.C. App. 580, 582, 696 S.E.2d 894, 897 (2010) (quoting State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986)). In State v. Lofton, 66 N.C. App. 79, 83, 310 S.E.2d 633, 636 (1984), the defendant was seen standing next to a stolen car, he had the keys to it, and his clothes and personal items were found in the stolen car. Once police arrived on the scene, he fled. Id. at 84, 310 S.E.2d at 636. This Court held that there was substantial evidence to prove that the defendant had constructive possession of the car and denied his motion to dismiss for insufficient evidence. Id.
Here, the State presented evidence that defendant, as in Lofton, was standing next to the stolen car and had its keys in his pocket when Officer Smith arrived on the scene. Furthermore, although defendant did not physically flee when Officer Smith arrived, defendant did give a false name in an attempt to avoid being identified. Even though there was no evidence at trial that defendant had personal items in the van, under the totality of the circumstances, we find there was substantial evidence that defendant had constructive possession of the vehicle because defendant had the intent and capability, based on his proximity to it and the keys in his possession, to control the van. Therefore, defendant's argument is without merit.
With regard to the second element of a possession of stolen vehicle charge, the State has the burden of presenting substantial evidence that defendant "knew or had reason to know [the van] was stolen." Suitt, 94 N.C. App. at 573, 380 S.E.2d at 571. In order to show defendant knew or had reason to know the van was stolen, the trial court instructed the jury on the doctrine of recent possession, and the State relies on the doctrine in support of its argument on appeal. This doctrine is "a rule of law that, upon an indictment for larceny, possession of recently stolen property raises a presumption of the possessor's guilt of the larceny of such property." State v. Maines, 301 N.C. 669, 673, 273 S.E.2d 289, 293 (1981). While the doctrine usually applies to larceny, our Court has used it to establish knowledge in possession of stolen goods charges. See State v. Murchinson, 39 N.C. App. 163, 169, 249 S.E.2d 871, 875 (1978), overruled on other grounds by State v. Wesson, 45 N.C. App. 510, 263 S.E.2d 298 (1980); State v. Hargett, 148 N.C. App. 688, 690-91, 559 S.E.2d 282, 285, disc. review improvidently allowed, 356 N.C. 423, 571 S.E.2d 583 (2002). "For the doctrine to apply, the State must prove: (1) the property was stolen, (2) defendant had possession of the property, subject to his control and disposition to the exclusion of others, and (3) the possession was sufficiently recent after the property was stolen." Hargett, 148 N.C. at 691, 559 S.E.2d at 285.
Here, the State presented substantial evidence that the van was stolen and, as discussed infra, defendant had constructive possession of the van. With regard to the last element of the doctrine, we must determine whether defendant's possession of the vehicle three days after it was stolen was sufficiently recent. This Court has concluded that "[w]hether the time elapsed between the theft and the moment when the defendant is found in possession of the stolen goods is too great for the doctrine [of recent possession] to apply depends upon the facts and circumstances of each case." State v. Waller, 11 N.C. App. 666, 669, 182 S.E.2d 196, 197 (1971). Moreover, we must examine the nature of the property and determine whether it is "normally and frequently traded in lawful channels." Id. at 669, 182 S.E.2d at 197. "[I]f the stolen article is of a type normally and frequently traded in lawful channels, then only a relatively brief interval of time between the theft and finding a defendant in possession may be sufficient to cause the inference of guilt to fade away entirely." Id., 182 S.E.2d at 197-98. However, if the property is not, "then the inference of guilt would survive a longer time interval." Id., 182 S.E.2d at 198. Since it was highly unlikely defendant would have been able to trade or sell the van in lawful channels because he did not have legal title to it, the interval of time between the theft of the van and defendant's possession would not have to be relatively brief in order to apply the doctrine. Accordingly, we find that three days was sufficiently recent. Thus, since the State provided substantial evidence that defendant had constructive possession of the van and had knowledge that it was stolen, based on the application of the doctrine of recent possession, the denial of defendant's motion to dismiss was proper.
III. Jury Instructions
Finally, defendant argues the trial court erred by instructing the jury on the doctrine of recent possession. Specifically, defendant contends that the doctrine was not applicable because the facts of the present case do not constitute the "appropriate circumstances" required by Murchinson, 39 N.C. App. at 169, 249 S.E.2d at 875, and there was evidence of an intervening agent.
"[Arguments] challenging the trial court's decisions regarding jury instructions are reviewed de novo by this Court." State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009). "The prime purpose of a court's charge to the jury is the clarification of issues, the elimination of extraneous matters, and a declaration and an application of the law arising on the evidence." State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973), cert. denied, 418 U.S. 905, 41 L. Ed. 2d 1153 (1974). "[A] trial judge should not give instructions to the jury which are not supported by the evidence produced at the trial." Id. "Where jury instructions are given without supporting evidence, a new trial is required." State v. Porter, 340 N.C. 320, 331, 457 S.E.2d 716, 721 (1995).
After the trial court instructed the jury on the elements of the possession of a stolen vehicle charge, it provided the following instructions with regard to the doctrine of recent possession:
Now the State seeks to establish the defendant's guilt by doctrine of recent possession. For this doctrine to apply, the State must prove three things beyond a reasonable doubt: First, that the property was stolen, that being the vehicle.
And, second, the defendant had possession of this property. A person possesses this property when that person is aware of its presence and has, either alone or together with others, both the power and intent to control its disposition or use.
And, third, that the defendant had possession of this property so soon after it was stolen and under such circumstances that
make it unlikely that the defendant obtained the possession honestly. However, in this case, the defendant is not charged with stealing the vehicle in question. If you find these things from the evidence beyond a reasonable doubt, you may consider them, together with all other facts and circumstances in deciding whether or not the defendant is guilty of possession of a stolen vehicle.
As discussed, the doctrine of recent possession has been used to establish the element of knowledge in possession of stolen goods charges. State v. McQueen, 165 N.C. App. 454, 459-60, 598 S.E.2d 672, 676 (2004). Moreover, the State presented substantial evidence of each required element of the doctrine. Therefore, since the jury instructions were supported by evidence and were a proper application of the law, we find no error.
Defendant contends that because the facts of the present case are distinguishable from the "appropriate circumstances" stated in Murchinson, 39 N.C. App. at 169, 249 S.E.2d at 875, the doctrine does not apply. While defendant is correct that the Murchinson Court did state that "the doctrine is, under appropriate circumstances, similarly applicable to justify a denial of a motion for nonsuit in a case charging illegal possession of a stolen vehicle[,]" id., there is nothing to indicate that the doctrine is applicable only in cases where the facts are indistinguishable.
Finally, with regard to defendant's assertion that the trial court should not have instructed on the doctrine because there was evidence of an intervening agent, we note that "[i]t is well established that the possession of stolen property recently after the theft, and under circumstances excluding the intervening agency of others[,] affords presumptive evidence that the person in possession is himself the thief[.]" State v. Joyner, 301 N.C. 18, 28, 269 S.E.2d 125, 132 (1980) (internal quotation marks omitted) (emphasis added). Here, defendant contends that the intervening agents were the couple who drove the van into the parking lot. In support of his argument, defendant cites State v. Leonard, 34 N.C. App. 131, 237 S.E.2d 347 (1977). In Leonard, this Court held that because the State presented evidence of an intervening agent, the doctrine of recent possession was not applicable. Id. at 133, 237 S.E.2d at 349. The defendant had a certificate of title for the vehicle assigned to him, and the certificate indicated that he had bought the vehicle from a third party. Id. at 132, 237 S.E.2d at 348. However, defendant's reliance on Leonard is misplaced because in addition to the defendant's claim that he bought the car from someone else, there was credible evidence, namely the certificate, that supported the existence of an intervening agent. Id. Here, defendant's claim that there were intervening agents was unsubstantiated by any independent evidence. Moreover, defendant fails to establish that the trial court's decision to use the instruction was unsupported by reason. The jury instructions properly told the jury that it had to determine whether defendant "honestly" came into possession of the vehicle and consider the doctrine's applicability along with other evidence at trial. Therefore, defendant's argument is overruled.
Conclusion
For the foregoing reasons, we find no error.
No error.
Judges GEER and BEASLEY concur.
Report per Rule 30(e).