Opinion
No. 04-1240.
Filed 15 November 2005.
Forsyth County Nos. 03 CRS 24761; 03 CRS 52880.
Appeal by defendant from judgment entered 9 March 2004 by Judge Michael E. Helms in Forsyth County Superior Court. Heard in the Court of Appeals 26 September 2005.
Attorney General Roy Cooper, by Assistant Attorney General Jane Ammons Gilchrist, for the State. Michael J. Reece for defendant-appellant.
Defendant was found guilty of attempted larceny of personal property worth more than $1,000.00; of injury to personal property in an amount over $200.00; of resisting, obstructing, and delaying a public officer; and of achieving habitual felon status. All convictions were consolidated and defendant was sentenced to a minimum term of 133 months and a maximum term of 169 months. Defendant argues solely that the trial court should have granted his motion to dismiss the attempted larceny charge. We hold that the trial court properly denied that motion.
The State presented evidence tending to show that David Carandola and his business partner, Robert Holden, returned to Carandola's home in Kernersville on 17 March 2003. When they droveup, they saw defendant sitting on Carandola's 1998 Honda motorcycle, which was parked in the back corner of the carport. Defendant was using a yellow Dewalt drill to drill into the ignition. Upon making eye contact with Carandola, defendant jumped off the motorcycle and ran out the back of the carport and past a swimming pool in Carandola's yard. As Carandola and Holden chased after him, Holden saw defendant throw a backpack into some bushes. Carandola called the police, and the police were able to apprehend defendant.
Holden and the police located the backpack in the bushes. Inside, the police found camouflage gloves, a Dewalt cordless drill battery, and a small screwdriver in a wind breaker. A yellow Dewalt cordless drill was found in Carandola's pool.
When Carandola examined his motorcycle, he found that the cap on the cylinder lock mechanism had been removed, and the lock had a drill hole through the middle of it. A motorcycle mechanic testified that if the tumblers of the lock mechanism are drilled out, the motorcycle could be started by sticking a screwdriver in the switch and turning on the ignition. At the same time, the handlebar would be released. Further, a person can break the pin that locks the steering by yanking and twisting it.
The question upon a motion to dismiss is whether there is substantial evidence 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). In making this determination, the court is to consider the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn from the evidence. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). Contradictions and discrepancies in the evidence are to be disregarded and left for resolution by a jury. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
An attempt to commit a crime consists of two elements: (1) an intent to commit a particular crime, and (2) an overt act done for that purpose, which goes beyond mere preparation, although falling short of the completed offense. State v. Powell, 277 N.C. 672, 678, 178 S.E.2d 417, 421 (1971). Thus, to withstand a motion to dismiss a charge of attempted larceny, the State must establish the following elements: "(1) An intent to take and carry away the property of another; (2) without the owner's consent; (3) with the intent to deprive the owner of his or her property permanently; (4) an overt act done for the purpose of completing the larceny, going beyond mere preparation; and (5) falling short of the completed offense." State v. Weaver, 123 N.C. App. 276, 287, 473 S.E.2d 362, 369, cert. denied and disc. review denied, 344 N.C. 636, 477 S.E.2d 53 (1996).
Defendant contends that the evidence is insufficient to show that he had the intent to deprive the owner of his property permanently. In support of his argument, he cites evidence that the ignition had not been drilled sufficiently to permit the starting of the motorcycle with a screwdriver. He cites further testimony that even if the ignition had been drilled, only six times out of ten will a screwdriver start a vehicle.
We conclude the State presented sufficient evidence to withstand the motion to dismiss. Viewed in the light most favorable to the State, the evidence shows that Carandola caught defendant in the act of drilling out the ignition of Carandola's motorcycle; that when the ignition lock is drilled, the motorcycle could frequently be started with a screwdriver instead of a key; that defendant had a flat head screwdriver in his possession; and that upon making eye contact with the true owner of the motorcycle, defendant fled. A jury could reasonably deduce from the foregoing evidence that defendant intended to steal the motorcycle. By drilling a hole in the ignition, defendant performed an overt act towards carrying out that intent. The fact that drilling the ignition out does not always result in successful starting of a motorcycle by the use of a screwdriver merely presented a conflict in the evidence for the jury to resolve.
No error.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).