Opinion
No. COA10-494
Filed 17 May 2011 This case not for publication
Appeal by Defendant from judgment entered 18 November 2009 by Judge Paul C. Ridgeway in Chatham County Superior Court. Heard in the Court of Appeals 26 October 2010.
Attorney General Roy Cooper, by Assistant Attorney General Richard H. Bradford, for the State. Daniel M. Blau, for Defendant.
Chatham County No. 08 CRS 51606.
Defendant, Preston Maurice McCrimmon, appeals from his convictions of felony larceny and felony possession of stolen property arguing that the trial court erroneously failed to grant his motions to dismiss. Because the State presented substantial evidence of each essential element of these offenses, we find that there was no error with respect to this issue. However, we remand to the trial court for correction of a sentencing error.
On 29 July 2008, Anita Sharpe noticed a blue and white pick-up truck parked next to construction equipment that was located outside of her mobile home in Siler City, North Carolina. The equipment consisted of a "dump bucket and a yellow scrape blade." Two men emerged from the truck and began loading the equipment into the truck's bed. At trial, Sharpe explained that the equipment had remained in the same location outside of her home for at least a year and a half. Unsure of whether the men had the authority to remove the equipment, Sharpe contacted Kent Suits, partial owner of the mobile home park. After speaking with Suits, Sharpe contacted law enforcement officials and informed them of what she had seen.
Officer Murray of the Siler City Police Department was dispatched to the area to investigate. Shortly after being dispatched to the area, Officer Murray observed a vehicle matching Sharpe's description. Officer Murray positioned his vehicle behind the truck, followed it for a short distance, and initiated a traffic stop. The truck pulled over immediately upon being signaled to stop. Shortly after making the stop, several other law enforcement officers arrived at the scene to assist with the investigation.
Defendant was driving the truck and Brandon McCrimmon (McCrimmon) was located in the passenger seat of the vehicle. Officers making the stop interviewed Defendant and McCrimmon separately. During his initial interview, Defendant provided officers with his real name and told officers that he had assisted McCrimmon with retrieving some materials that they intended to sell as scrap metal. Thereafter, officers transported Defendant and McCrimmon to the local police department. Once at the department, Defendant waived his Miranda rights and provided officers with a written statement.
Defendant and Brandon McCrimmon are unrelated.
In his statement, Defendant explained that earlier in the afternoon he received a call from McCrimmon. McCrimmon sought Defendant's help in picking up some scrap metal from a mobile home park and transporting it to a local scrap yard. The pair met, borrowed a truck from Defendant's cousin, and left to retrieve the scrap metal. Once the pair arrived at the mobile home park, they were met by an individual identifying himself as Preston Miller. Miller explained that "this stuff was his brother's and that his brother had moved and got out of that kind of work [and] was looking for someone that could move [the equipment]." Preston Miller then helped Defendant and McCrimmon load the materials into the truck and departed. Officers were unable to locate Preston Miller. Additional facts are included, as pertinent, throughout the remainder of the opinion.
At trial, the State presented evidence in which they suggested that Preston Miller did not exist.
On 1 June 2009, Defendant was indicted for the offenses of felony larceny and felony possession of stolen goods. Following a trial Defendant was convicted of the offenses for which he was indicted. Defendant appeals his convictions arguing that: (I) the trial court erroneously denied his motion to dismiss the charge of felony larceny; (II) the trial court erroneously denied his motion to dismiss the charge of felony possession of stolen property; (III) the trial court erroneously failed to intervene in response to the State's improper closing argument; (IV) the trial court erroneously overruled his objection to the State's improper closing argument; and (V) the trial court failed to arrest judgment on one of his convictions where Defendant was convicted of felony larceny and felony possession of the same stolen property.
I.
Defendant first argues that the trial court erroneously denied his motions to dismiss the charge of felony larceny. We disagree.
"In considering a motion to dismiss, it is the duty of the court to ascertain whether there is substantial evidence of each essential element of the offense charged," and that the defendant is the perpetrator of the offense. State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980); 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. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). The trial court is to consider the evidence in the light most favorable to the State. State v. Fritsch, 351 N.C. 373, 378-79, 526 S.E.2d 451, 455 (2000). Any conflicts in the evidence are to be settled in the state's favor. State v. Mack, ___ N.C. App. ___, ___, 697 S.E.2d 490, 493 (2010).
To withstand a motion to dismiss the offense of felony larceny, the State must present substantial evidence that the defendant: "(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 (2003) (citations omitted); N.C. Gen. Stat. § 14-72(a) (2009). Defendant argues that "the State presented no direct evidence [he] knew he was not entitled to the bucket and scrape blade."
Often, a defendant's mental state must be proved by circumstantial evidence. See State v. Bell, 285 N.C. 746, 750, 208 S.E.2d 506, 508 (1974). "`[C]ircumstantial evidence is that which is indirectly applied by means of circumstances from which the existence of the principal fact may reasonably be deduced or inferred.'" State v. Nunez, ___ N.C. App. ___, ___, 693 S.E.2d 223, 226 (2010) (quoting State v. Blackwelder, 182 N.C. 899, 904, 109 S.E. 644, 647 (1921)).
Knowledge is a mental state that may be proved by offering circumstantial evidence to prove a contemporaneous state of mind. Jurors may infer knowledge from all the circumstances presented by the evidence. It "may be proved by the conduct and statements of the defendant, by statements made to him by others, by evidence of reputation which it may be inferred had come to his attention, and by [other] circumstantial evidence from which an inference of knowledge might reasonably be drawn."
State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748 (1989) (quoting State v. Boone, 310 N.C. 284, 294-95, 311 S.E.2d 552, 559 (1984)). Circumstantial evidence is not required to "rule out every hypothesis of innocence" to endure a defendant's motion to dismiss. State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988).
Here, the State presented substantial evidence that Defendant committed the offense of felony larceny. The State's evidence tended to show that Defendant was contacted by his friend, McCrimmon, and was asked to assist with scrapping some construction equipment. Defendant was clearly suspicious of McCrimmon's invitation as his initial response to McCrimmon's request was to ask whether the scrap was legitimate.
Defendant then went with McCrimmon to a property that neither he nor McCrimmon owned. When Defendant and McCrimmon arrived, Defendant noticed that the construction equipment had not been used for some time. Although Defendant claimed that McCrimmon informed him that the owner of the equipment would be present to help load the equipment into Defendant's truck, the State provided testimony from a neighbor that only two men loaded the equipment. Despite the fact that Defendant neither saw the owner of the equipment nor ultimately knew who owned the equipment, Defendant still assisted McCrimmon in loading the equipment onto Defendant's truck. Furthermore, Defendant admitted that he was willing to scrap the equipment even though he believed the equipment appeared to be functional.
This evidence would allow a reasonable juror to draw a reasonable inference that Defendant knew he was not entitled to take the equipment. While the State's evidence of Defendant's knowledge was circumstantial, the trial court correctly allowed the jury to determine if the State proved the knowledge element beyond a reasonable doubt. While Defendant claimed he did not know that the equipment was stolen, he was permitted to present this defense and the jury was instructed on mistake of fact. Thus, we find no error in the trial court's denial of Defendant's motion to dismiss the felony larceny charge on the basis of the knowledge element of that offense.
On appeal, Defendant also asserts the trial court erroneously denied his motion to dismiss because the State failed to present substantial evidence that the value of the stolen equipment exceeded $1,000. We disagree.
"Value as used in [N.C. Gen. Stat. § 14-72] means fair market value." State v. McCambridge, 23 N.C. App. 334, 336, 208 S.E.2d 880, 881 (1974). "Stolen property's fair market value is the item's `reasonable selling price[] at the time and place of the theft, and in the condition in which it was when [stolen].'" State v. Davis, 198 N.C. App. 146, 151, 678 S.E.2d 709, 714 (2009) (quoting State v. Dees, 14 N.C. App. 110, 112, 187 S.E.2d 433, 435 (1972)). "It is not necessary that a witness be an expert in order to give his opinion as to value. A witness who has knowledge of value gained from experience, information and observation may give his opinion of the value of specific real property, personal property, or services." State v. Cotten, 2 N.C. App. 305, 311, 163 S.E.2d 100, 104 (1968) (internal quotation marks omitted).
In this case, the State presented substantial evidence from which a juror could infer that the value of the stolen equipment exceeded $1,000. Kenneth Suits, one of the owners of the stolen equipment, testified at trial. Suits explained that it was difficult to assign value to the stolen equipment because it was a specialty instrument designed by his father. However, after considering what he believed the parts of the equipment were worth, Suits estimated that the scrape blade and bucket attachment would each be valued at approximately $2,000. Suits reached this conclusion based upon his background in selling and purchasing used property. While somewhat convoluted, the jury was presented with sufficient evidence from which they could infer that the value of the equipment, if sold on the open market, would exceed $1,000. Accordingly Defendant's assignment of error is without merit.
II.
Defendant next argues that the trial court erroneously failed to dismiss the charge of felony possession of stolen property. We disagree.
The elements of the crime of felony possession of stolen property are "(1) possession of personal property, (2) valued at more than $[1]000.00, (3) which has been stolen, (4) the possessor knowing or having reasonable grounds to believe the property to have been stolen, and (5) the possessor acting with a dishonest purpose." State v. Parker, 316 N.C. 295, 302, 341 S.E.2d 555, 559 (1986). "Dishonest purpose is equivalent to felonious intent." State v. Withers, 111 N.C. App. 340, 348, 432 S.E.2d 692, 698 (1993). Defendant contends that: (I) the State failed to present substantial evidence that he had knowledge that the items were stolen; (II) there was insufficient trial evidence from which a juror could infer that the value of the stolen equipment exceeded $1,000. As we have already addressed and settled these arguments above, it is not necessary to revisit these issues in reference to Defendant's possession of stolen goods offense.
III. and IV.
In his next two arguments Defendant contends that the trial court erroneously failed to intervene ex mero motu in response to the Prosecutor's grossly improper closing arguments and overruling his objections to the State's closing arguments. We disagree.
Generally, counsel is allowed wide latitude in the scope of the closing arguments it presents to the jury; however, the scope of a counsel's closing arguments is not without limits. State v. Hill, 347 N.C. 275, 298, 493 S.E.2d 264, 277 (1997); State v. Whiteside, 325 N.C. 389, 398, 383 S.E.2d 911, 916 (1989). Our General Assembly provides that:
During a closing argument to the jury an attorney may not become abusive, inject his personal experiences, express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, or make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice. An attorney may, however, on the basis of his analysis of the evidence, argue any position or conclusion with respect to a matter in issue.
N.C. Gen. Stat. § 15A-1230(a) (2009). "In closing arguments to the jury, an attorney may not: (1) become abusive, (2) express his personal belief as to the truth or falsity of the evidence, (3) express his personal belief as to which party should prevail, or (4) make arguments premised on matters outside the record." State v. Jones, 355 N.C. 117, 127, 558 S.E.2d 97, 104 (2002). The standard of review by which this Court views alleged impropriety in a closing argument depends upon whether an objection was raised at trial.
"The standard of review for assessing alleged improper closing arguments that fail to provoke timely objection from opposing counsel is whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu." Jones, 355 N.C. at 133, 558 S.E.2d at 107. "To establish such an abuse, defendant must show that the prosecutor's comments so infected the trial with unfairness that they rendered the conviction fundamentally unfair." State v. Grooms, 353 N.C. 50, 81, 540 S.E.2d 713, 732 (2000). "The standard of review for improper closing arguments that provoke timely objection from opposing counsel is whether the trial court abused its discretion by failing to sustain the objection." Jones, 355 N.C. at 131, 558 S.E.2d at 106.
In this case, Defendant argues that various statements made by the Prosecutor during her closing arguments were prejudicial. Defendant first asserts that the Prosecutor made several statements based on evidence not included in the record. During the course of the Prosecutor's closing arguments, the following colloquy occurred:
[PROSECUTOR]: BJ, Brandon McCrimmon, and Preston McCrimmon needed money in the summer of 2008. They needed money. Two weeks prior to this theft, they had gone and cased that mobile home park. What happens during the day at most subdivisions?
[DEFENSE COUNSEL]: I object to that. I'm not sure that's in evidence.
THE COURT: Sustained.
. . . .
[PROSECUTOR]: Detective Birchett testified that he was told by Preston that they had talked about two weeks prior to this event about getting some scrap metal. Two weeks prior. But they didn't have a truck then so they had to wait to get that truck to be able to load up this heavy equipment. Now during those two —
[DEFENSE COUNSEL]: Again, I object to that about the two weeks prior. I believe that's referring to the other Preston.
THE COURT: Sustained.
While it appears that the Prosecutor did indeed argue several facts that were not presented during trial, Defendant's trial counsel raised objection to each inadmissible statement and each objection was sustained by the trial court. We note that Defendant failed to make a motion to strike the Prosecutor's objectionable statements.
Our Court has held that "[w]here a defendant's objection is sustained and the objectionable testimony is stricken, he has no grounds to assign error." State v. Hill, 139 N.C. App. 471, 479, 534 S.E.2d 606, 612 (2000). Additionally, where a defendant fails to make a motion to strike objectionable material, he has waived the right to assert error on appeal. State v. Quick, 329 N.C. 1, 29, 405 S.E.2d 179, 196 (1991). Because each of Defendant's objections was sustained, and Defendant failed to make a motion to strike the objectionable material, Defendant's argument as to the prosecutor's mention of evidence that was outside of the record is without merit.
Defendant also asserts that the Prosecutor made a number of "abusive" statements during her closing statements, and that the trial court erroneously failed to intervene ex mero motu in response. We disagree.
During closing arguments the Prosecutor explained that the statement Defendant gave to officers following his arrest was a complete fabrication. Using an analogy to illustrate her contention, the prosecutor stated:
You know how a magician very often has to misdirect you from — from the trick in order to get you to buy it. He will do all these fancy moves and do all this talking to get you laughing, make you feel good about yourself so you don't notice that he has put that ball behind his back.
Defendant's counsel raised an objection which was overruled by the trial court. Immediately thereafter, referencing her earlier statement, the prosecutor explained that "[e]verything that Preston had the detective write out in that statement is nothing but misdirection. It's nothing but a kind of snake oil selling to you, selling to the law enforcement officers, a story." Later, the Prosecutor further admonished the jury "Ladies and gentlemen, you have what you need. You know the believable evidence in this case. Don't be fooled by some story thought up sitting on the side of the road with a truck full of stolen property. Don't buy that snake oil."
After a review of relevant North Carolina authority, we hold that the statements made by the Prosecutor were not so abusive as to require the trial court to intervene ex mero motu. Preliminarily we note that though Defendant raised objection to the Prosecutor's first reference to the "magician," he failed to raise objection to later similar references. Our Court has held that "[a]n objection to the admission of evidence is waived where the same or similar evidence is subsequently admitted without objection." State v. Hargrave, 198 N.C. App. 579, 582, 680 S.E.2d 254, 257 (2009). We find the reasoning set forth in Hargrave instructive in the current action. Because Defendant failed to object to the Prosecution's "snake oil" references, we review Defendant's argument to determine whether the Prosecutor's statements "were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu." See Jones, 355 N.C. at 133, 558 S.E.2d at 107.
On several occasions our Court has held that the trial court may not permit an attorney to make abusive statements, which amount to little more than name-calling calculated to prejudice a defendant's trial. See id. at 133-34, 558 S.E.2d at 107-108. In cases where the statements of the Prosecutor were clearly calculated to prejudice the Defendant, our appellate courts have not hesitated to overturn the results of the trial court proceeding. Id. at 129, 558 S.E.2d at 105. In determining whether the statements made by a prosecutor during closing arguments are improper, the alleged improper statements must be read in context with the entire closing argument. State v. Green, 336 N.C. 142, 188, 443 S.E.2d 14, 41 (1994).
In this case, when the Prosecutor's reference to selling "snake oil" is read in context with the remainder of the closing arguments, it is apparent that the reference was not calculated to prejudice Defendant's trial. The alleged objectionable statements support the State's theory that Defendant's testimony lacked credibility. The Prosecutor's references to "snake oil" were not mere "name calling" intended to prejudice Defendant's trial court proceedings. Moreover, the record does not support Defendant's contention that the statements were made to disparage Defendant's trial counsel. Accordingly, Defendant's argument as to the "abusive" nature of the Prosecutor's closing argument is without merit.
Citing the Prosecutor's "magician" and "snake oil" references, Defendant asserts that the trial court erroneously failed to intervene when the Prosecutor impermissibly asserted her personal opinion and called Defendant a liar. We disagree.
It is well established that "[a] prosecuting attorney in his argument to the jury should not call a defendant a liar." State v. Bunning, 338 N.C. 483, 489, 450 S.E.2d 462, 464 (1994). However, "while it is improper for a lawyer to assert his opinion that a witness is lying, a lawyer may argue to the jury that they should not believe a witness." State v. Davis, 291 N.C. 1, 12, 229 S.E.2d 285, 293 (1976). "Counsel is permitted to argue the facts which have been presented, as well as reasonable inferences which can be drawn therefrom." State v. Williams, 317 N.C. 474, 481, 346 S.E.2d 405, 410 (1986).
In her closing argument, the Prosecutor generally challenged the credibility of Defendant's testimony and evidence. Throughout the trial, the State presented logical inconsistencies in Defendant's account of the events. From the evidence presented at trial, it was reasonable to infer that Defendant's testimony lacked credibility. The Prosecutor's brief references to a "magician" selling "snake oil" were not so improper that the trial court erroneously failed to intervene ex mero motu.
In his final argument with respect to the Prosecutor's closing statements, Defendant contends that the trial court failed to intervene ex mero motu when the Prosecutor expressed her personal belief as to facts that were not entered into evidence. We disagree.
An attorney "may not place before the jury incompetent and prejudicial matters by injecting his own knowledge, beliefs and personal opinions not supported by the evidence. Counsel may, however, argue to the jury the law, the facts in evidence and all reasonable inferences drawn therefrom." State v. Flowers, 347 N.C. 1, 36-37, 489 S.E.2d 391, 412 (1997). During her closing arguments the Prosecutor stated that:
[Y]ou know what I think happened? They got to that mobile home park. I think that other Preston had told [McCrimmon] about some scrap metal laying out there — easy pickings; it had been there a while — this kid on the bicycle. [McCrimmon], who is within walking distance of that mobile home park confirms it's there, sets up the buy with Preston McCrimmon — or sets up the pickup with Preston McCrimmon. Did [McCrimmon] — excuse me, did the other Preston on the bicycle have permission? Of course not.
The Prosecutor's statement is undoubtedly improper as the State did not present evidence of any prior interaction between Preston Miller and McCrimmon. However, as it relates to Defendant, the Prosecutor's statement still indicates that Defendant was aware that the equipment belonged to someone else, a reasonable inference based on the circumstantial evidence submitted at trial. When read in context with the remainder of the closing argument, the Prosecutor's statement challenges Defendant's asserted lack of knowledge and suggests that Defendant had knowledge that the equipment was stolen. While the Prosecutor's statement was improper, it was not so improper that the trial court should have intervened ex mero motu.
In summation, Defendant alleges that the several objections made by the Prosecutor were abusive or otherwise improper. However, the Prosecutors statements were not improper, or were not so improper that "the trial court committed reversible error by failing to intervene ex mero motu." Accordingly, we find no error with respect to the trial court's decision not to intervene in the Prosecutor's closing arguments.
V.
In his final argument on appeal, Defendant contends that the trial court erred in failing to arrest one of his convictions where the jury convicted him of felony larceny and felony possession of the same stolen property. We agree with Defendant's contention.
It is well established that "while a defendant may be indicted and tried on charges of larceny and possession of the same property, the defendant may be convicted of only one of the offenses." State v. Owens, 160 N.C. App. 494, 498, 586 S.E.2d 519, 523 (2003) (citing State v. Perry, 305 N.C. 225, 236-37, 287 S.E.2d 810, 817 (1982)). A consolidation of the judgments for conviction by the trial court "does not cure this error." Id.
In this case, the trial court erred in failing to arrest the judgment with respect to one of Defendant's convictions. Defendant was indicted for the offenses of felonious larceny and felonious possession of the same property. Apparently recognizing the sentencing issue, the trial court announced: "I will arrest judgment with respect to the felonious possession of stolen goods so I will impose judgment on the felony larceny offense." The trial court's oral pronouncement of Defendant's Judgment was not reflected in the written Judgment. Instead the trial court consolidated the offenses for judgment and entered Judgment as to both charges.
Accordingly, we vacate Defendant's judgment with respect to the offense of felony possession, and remand for entry of judgment and sentencing on the felony larceny conviction.
Vacated and Remanded.
Judges CALABRIA and HUNTER, JR. concur.
Report per Rule 30(e).