Opinion
No. 07-779.
Filed March 4, 2008.
Buncombe County No. 06CRS209, 06CRS50756.
Appeal by defendant from judgment entered 10 January 2007 by Judge Mark E. Powell in Superior Court, Buncombe County. Heard in the Court of Appeals 15 January 2008.
Attorney General Roy Cooper, by Special Deputy Attorney General W. Richard Moore, for the State. Charlotte Gail Blake, for defendant-appellant.
Where a charge of felony possession of stolen goods is based on the goods having been stolen pursuant to a breaking and entering, "a court cannot properly accept a guilty verdict on the charge of felony possession of stolen goods when defendant has been acquitted of the breaking and entering charge." Here, Defendant contends the trial court erred by accepting the jury's guilty verdict for possession of stolen goods pursuant to a breaking and entering where the jury found him not guilty of breaking and entering. Following the mandate of Goblet, because the jury found Defendant not guilty on the underlying breaking and entering charge, we reverse. At trial, the State's evidence tended to show that on the night of 8 January 2006, Asheville Communications Incorporated was broken into and several items were stolen, including two laptop computers, a case, accessories, cell phones, and an invoice book. Charles Gamble, owner of Asheville Communications, estimated the total value of all items stolen as $4,400.
State v. Goblet, 173 N.C. App. 112, 121, 618 S.E.2d 257, 264 (2005).
Detective Joe Boerner began investigating the break-in and went to the Blue Ridge Motor Lodge, a motel known to contain stolen merchandise. Based on information obtained from the front desk clerk, Detective Boerner went to room 137, which was registered to Defendant Robert Upchurch.
Although Defendant was not present in the motel room, a woman named Maria was present and let Detective Boerner into the room, where he found items he believed were stolen from Asheville Communications. Defendant was indicted on one count each of charges of breaking and entering, felony larceny after breaking and entering, and felony possession of stolen goods pursuant to a breaking and entering.
At trial, the State relied on the theory that Defendant was the person who committed the breaking and entering and stole the missing property. The jury found Defendant not guilty of breaking and entering and felony larceny, but guilty of possession of stolen goods pursuant to a breaking and entering. Defendant stipulated to habitual felon status and was sentenced to a minimum of 140 months' and maximum of 177 months' imprisonment. Defendant's sole argument on appeal is that the trial court erred by accepting the jury's guilty verdict for possession of stolen goods pursuant to a breaking and entering because it was inconsistent with the jury's not guilty verdicts for breaking and entering and larceny after breaking and entering.
The elements of felonious possession of goods stolen pursuant to a breaking and entering are: "(1) possession of personal property, (2) which was stolen pursuant to a breaking and entering, (3) the possessor knowing or having reasonable grounds to believe the property to have been stolen pursuant to a breaking and entering, and (4) the possessor acting with a dishonest purpose." State v. Hargett, 148 N.C. App. 688, 691, 559 S.E.2d 282, 285, review dismissed, 356 N.C. 423, 571 S.E.2d 583 (2002); N.C. Gen. Stat. § 14-71.1 (2005).
Although a defendant is not required to be the person who committed the underlying breaking and entering under section 14-71.1, this Court has held
[w]hen a charge of felony possession of stolen goods is based on the goods having been stolen pursuant to a breaking and entering a court cannot properly accept a guilty verdict on the charge of felony possession of stolen goods when defendant has been acquitted of the breaking and entering charge.
State v. Goblet, 173 N.C. App. 112, 121, 618 S.E.2d 257, 264 (2005) (noting that the State conceded in its brief that the trial court erred by accepting the jury's guilty verdict on felony possession of stolen goods when the jury had found the defendant not guilty of the underlying breaking and entering charge). Where one panel of this Court has decided an issue, a subsequent panel is bound by that precedent, unless it has been overturned by a higher court. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36 (1989).
Here, because the jury found Defendant not guilty of the underlying breaking and entering charge, we must hold in light of Goblet that the trial court erred by accepting the jury's guilty verdict for possession of stolen goods pursuant to a breaking and entering. Accordingly, we reverse.
Because we conclude the trial court erred by accepting the jury's guilty verdict, we do not address Defendant's motion for appropriate relief for ineffective assistance of counsel.
Reversed.
Judges MCGEE and CALABRIA concur.
Report per Rule 30(e).