Opinion
No. COA15–133.
01-05-2016
STATE of North Carolina v. Shawn DAVIS, Defendant.
Attorney General Roy A. Cooper III, by Special Deputy Attorney General David Efird, for the State. Kathy LaMotte, for defendant-appellant.
Attorney General Roy A. Cooper III, by Special Deputy Attorney General David Efird, for the State.
Kathy LaMotte, for defendant-appellant.
Opinion
Appeal by defendant from judgment entered on or about 6 August 2014 by Judge Eric L. Levinson in Superior Court, Mecklenburg County. Heard in the Court of Appeals 26 August 2015.
STROUD, Judge.
Defendant appeals his judgment convicting him of two counts of felonious possession of stolen goods/property. For the following reasons, we find no error.
I. Background
The State's evidence tended to show that on 14 December 2012 Mr. Lloyd Murray worked as an I.T. employee for Mecklenburg County. Mr. Murray did an audit of the I.T. inventory and realized that several new computers were missing. On 16 December 2012, defendant pawned a laptop at Cash America Pawnshop, and on 21 December 2012 he pawned another one at PawnMart. Detective Martin of the Charlotte Police Department discovered the serial numbers from the pawned laptops matched two of the missing computers and obtained a warrant for defendant's business, where they found four other computers with serial numbers that matched some of the missing computers. On or about 10 June 2013, defendant was indicted for three counts of felonious possession of stolen goods (“possession”). After a trial by jury defendant was found guilty of possession of the two pawned computers. The trial court sentenced defendant accordingly, and he appeals.
II. Motion to Dismiss
Here, defendant made a very specific motion to dismiss at the close of the State's evidence. Defendant's counsel stated,
May it please the Court, at the close of the state's evidence we would move to dismiss three counts of possession of stolen goods as well as possession. We will contend that—well, your Honor, the state indictments are what I will consider generic. They said that it was computers. They don't specify what computers. They just say computers, my recollection in looking at them. So we will contend that the evidence is insufficient to carry the burden because they have not identified those specific computers as the subject matter of the charge. We will contend that the evidence is insufficient to make out a prima facie case. Just like a firearms case, if you don't have a serial number, there are a whole lot of guns out there, there are a whole lot of computers. They just happened to pick these numbers to present to the jury. But in giving proper notice, pursuant to the due process clause of the United State's [ (sic) ] Constitution and the North Carolina Constitution, it's insufficient.
Thus, defendant's motion to dismiss was specific in challenging only the indictment and fails to address, generally or specifically, the State's evidence of the elements of the crime at trial. Therefore, defendant has not preserved this issue for appeal. See State v. James, –––N.C.App. ––––, ––––, 774 S.E.2d 871, 876 (2015) (“The motions to dismiss made by Defendant's counsel's at trial were based solely upon the premise that the superseding indictment was invalid. Defendant's counsel did not expressly make the argument in the trial court that he has raised on appeal, which is that there was insufficient evidence for the charge to proceed to the jury. Therefore, as Defendant failed to properly preserve his sufficiency of the evidence argument for appellate review, we dismiss Defendant's appeal as to this issue.”) Defendant also requests that if we find he did not preserve his issue for appeal, we invoke Rule 2 to prevent manifest injustice; we have reviewed defendant's case and decline defendant's invitation. See N.C. R.App. P. 2.
II. Jury Instructions
[A] trial court should instruct the jury concerning the issue of a defendant's guilt of a lesser included offense where the evidence would permit a jury rationally to find the defendant guilty of the lesser offense and acquit him of the greater, with the determinative factor being what the State's evidence tends to prove.
State v. Miranda, ––– N.C.App. ––––, ––––, 762 S.E.2d 349, 354 (2014) (citations, quotation marks, and brackets omitted).
Defendant acknowledges the only difference between misdemeanor possession of stolen goods and felonious possession of stolen goods is the value of the goods stolen in that
[t]he fair market value of stolen property at the time of the theft must exceed the sum of $1,000.00 for the possession to be felonious. 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. The State is not required to produce direct evidence of value to support the conclusion that the stolen property was worth over $1,000.00, provided that the jury is not left to speculate as to the value of the item.
State v. Davis, 198 N.C.App. 146, 151–52, 678 S.E.2d 709, 714 (2009) (emphasis added) (citations, quotation marks, and brackets omitted).
Mr. Murray testified that the laptops were purchased for $1,182.41. An employee from Cash America Pawnshop testified that the laptop defendant pawned there was worth “from a thousand up to $1500[.]” An employee from PawnMart testified that the laptop pawned there was selling for around $350 to $400 at the time she received it and that the laptop she was evaluating was not brand new. As the fair market value of an item should be considered “at the time” it was stolen, we conclude that the evidence was not conflicting that the value of the laptops at that time was over $1,000, see id., and as such the trial court did not err by not instructing the jury on misdemeanor possession of stolen goods. See Miranda, ––– N.C.App. at ––––, 762 S.E.2d at 354.
III. Conclusion
For the foregoing reasons, we find no error.
NO ERROR.
Judges CALABRIA and INMAN concur.
Report per Rule 30(e).