Opinion
No. 04-1669.
Filed May 2, 2006.
Henderson County Nos. 03 CRS 55979, 04 CRS 1.
Appeal by defendant from judgment entered 13 July 2004 by Judge E. Penn Dameron in the Superior Court in Henderson County. Heard in the Court of Appeals 12 October 2004.
Attorney General Roy Cooper, by Assistant Attorney General J. Philip Allen, for the State. William D. Auman, for defendant-appellant.
Defendant was tried for felonious breaking and entering, larceny, and possession of stolen goods on 12 July 2004. Defendant moved to dismiss at the close of the State's evidence and at the close of all the evidence, which motions the court denied. On 13 July 2004, the jury returned a verdict of guilty on all counts and of the status offense of being a habitual felon. Defendant was tried jointly with co-defendant Lafoy Ball, Jr., who was convicted of the same offenses. Defendant received an active sentence in the presumptive range of 116 to 149 months. Defendant appeals. We hold that there was no error. The State introduced evidence that on 20 September 2003, at around 1:30 p.m., two men in a truck pulled up to a house owned by Charles Murphy and occupied by Murphy's daughter Charlene Pickens. A neighbor, Paul Evington, testified that he looked out his window and saw the men hurriedly grabbing outdoor furniture and putting it on their truck. They then drove around to an outbuilding, where Evington could not see them but could hear glass breaking. Evington observed the men going back and forth between the outbuilding and their truck, carrying boxes and cords to the truck. They then got in the truck and left. While he watched, Evington dialed 911 and reported what he was observing. He could not see the men's faces well, as he was at a distance of 400-800 yards, and he was not able to identify them in photographs or in person thereafter. Evington thought both men were white males and that the driver was wearing a white cut-off shirt and jeans and that the passenger was wearing a white cap, a green shirt, and blue jeans.
About an hour and ten minutes after the initial 911 call, police received a call from a "Mr. Allison" reporting that co-defendant Ball was trying to sell extension cords to the caller. Ball's wife also called around the same time and reported that she saw Ball's vehicle on Dillard Avenue. Sergeant McCrary of the Henderson County Sheriff's department then encountered the vehicle, which matched the description given by Evington and Ball's wife, and gave chase. Neither caller mentioned defendant or any passenger. Mr. Allison did not testify. At trial, Sergeant Johnny Duncan of the Henderson County Sheriff's Department testified that he was involved in the chase with Sgt. McCrary, with McCrary directly behind the truck and Duncan following McCrary. Duncan testified that they chased the vehicle until it stopped at a dead-end off a private road and co-defendant Ball fled into the woods; both sergeants chased and apprehended him shortly thereafter. When the chase ended, McCrary's patrol car stopped when it struck a porch. Duncan testified that when they came back out of the woods with Ball, McCrary went to notify the homeowner that his patrol car had hit the porch and found defendant hiding behind some furniture on the porch and took him into custody. Duncan noted that Ball was wearing a "greenish tan" shirt and that defendant was wearing a sleeveless shirt, of a color he could not remember, and jeans. Charlene Pickens and Charles Murphy later identified the items found in the truck as belonging to them. At trial, they testified that the items had been taken from the home and outbuilding without their permission.
Defendant first argues that the trial court committed plain error by allowing defendant's case to be joined for trial with that of co-defendant Ball. We disagree. As defendant did not object at trial to the joinder of his case with co-defendant Ball's case, he argues that it was plain error for the court not to sever the cases on its own motion. See N.C.R. App. P. 10(c)(4) (2004). However, our Supreme Court has limited plain error review to errors in a trial court's jury instructions or rulings on admissibility of evidence. State v. Golphin, 352 N.C. 364, 460, 533 S.E.2d 168, 230 (2000). Our Courts have repeatedly declined to extend plain error review to other issues. See id. at 460, 533 S.E.2d at 231; State v. Fleming, 350 N.C. 109, 133, 512 S.E.2d 720, 737 (1999). Furthermore, "[a] trial court's ruling on such questions of joinder or severance, however, is discretionary and will not be disturbed absent a showing of abuse of discretion." State v. Carson, 320 N.C. 328, 335, 357 S.E.2d 662, 666-67 (1987). And our Courts have declined to apply plain error analysis to issues within the trial court's discretion. State v. Steen, 352 N.C. 227, 256, 536 S.E.2d 1, 18 (2000). We overrule this assignment of error.
Defendant next argues that the trial court erred in allowing prejudicial hearsay testimony implicating co-defendant. We disagree. At trial, Sgt. Duncan testified that he received a call from "Mr. Allison" indicating that co-defendant Ball was attempting to sell him extension cords. Defendant bears the burden of showing prejudice, that "had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises." N.C. Gen. Stat. § 15A-1443(a) (2004). We conclude that even if the trial court erred in admitting Sgt. Duncan's testimony regarding Mr. Allison's statement to him, defendant has failed to show prejudice. In light of the evidence that the stolen extension cords were found in the constructive possession of Ball and defendant, we cannot conclude that absent evidence that co-defendant Ball was trying to sell extension cords, the jury would have reached a different decision as to defendant's guilt.
Finally, defendant argues that the trial court erred in failing to dismiss all charges for insufficiency of the evidence. We disagree. In reviewing the trial court's ruling on a motion to dismiss, we must evaluate the evidence in the light most favorable to the State. State v. Molloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983). All contradictions must be resolved in favor of the State. Id. Ultimately, we must determine "whether a reasonable inference of the defendant's guilt may be drawn from the circumstances." State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998). If the evidence supports a reasonable inference of defendant's guilt, it is up to the jury to decide whether there is proof beyond a reasonable doubt. State v. Trull, 349 N.C. 428, 447, 509 S.E.2d 178, 191 (1998). This is true whether the evidence is direct or circumstantial. Id. However, the motion to dismiss must be allowed if the evidence is "sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator." Molloy, 309 N.C. at 179, 305 S.E.2d at 720 (internal citation omitted).
The doctrine of recent possession permits a jury to infer guilt of larceny and of breaking and entering.
That doctrine is simply 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. . . . Furthermore, when there is sufficient evidence that a building has been broken into and entered and thereby the property in question has been stolen, the possession of such stolen property recently after the larceny raises presumptions that the possessor is guilty of the larceny and also of the breaking and entering. . . . [T]he presumption spawned by possession of recently stolen property arises when, and only when, the State shows beyond a reasonable doubt: (1) the property described in the indictment was stolen; (2) the stolen goods were found in defendant's custody and subject to his control and disposition to the exclusion of others though not necessarily found in defendant's hands or on his person so long as he had the power and intent to control the goods; and (3) the possession was recently after the larceny.
State v. Maines, 301 N.C. 669, 673-74, 273 S.E.2d 289, 293 (1981). Here, the evidence, taken in the light most favorable to the State easily satisfies the first and third prongs of the doctrine of recent possession: testimony was introduced which showed that the items found in the truck were stolen and also that about an hour passed between the time that the breaking and entering occurred and the police found the stolen items in co-defendant's truck. After careful review of the record, we conclude that there was sufficient evidence here to fulfill the possession requirement as well.
In Maines, the Court explained that defendant's possession of the stolen property may be constructive possession: "It is sufficient that he be in such physical proximity to [the stolen property] that he has the power to control it to the exclusion of others and that he has the intent to control it." Id. at 675, 273 S.E.2d at 293-94. Furthermore, the exclusive possession required to support an inference of guilt may be joint possession. Id. at 675, 273 S.E.2d at 294. "For the inference to arise where more than one person has access to the property in question, the evidence must show the person accused of the theft had complete dominion, which might be shared with others, over the property or other evidence which sufficiently connects the accused person to the crime." Id. (emphasis added).
Here, Paul Evington observed two men taking items from his neighbor's outbuilding, one of whom was wearing a green shirt, and the other a "cut off" shirt and jeans. Sgt. Duncan testified that co-defendant Ball was wearing a "greenish tan" shirt and that defendant was wearing a sleeveless shirt and jeans. Furthermore, defendant was found hiding behind a dresser on a nearby porch and "[a]n accused's flight is `universally conceded' to be admissible as evidence of consciousness of guilt and thus of guilt itself." State v. Jones, 292 N.C. 513, 525, 234 S.E.2d 555, 562 (1977). Thus, we conclude that other evidence sufficiently connects defendant to the crime, such that the possession requirement of the doctrine of recent possession is also fulfilled. We overrule this assignment of error.
No error.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).