When the jury found defendant not guilty of felonious breaking or entering and this was the only basis for a conviction of felonious possession of stolen goods, defendant must be re-sentenced for a misdemeanor. Where the defendant is convicted of a charge different from that charged in the indictment, judgment must be arrested.
I. Factual Background
On the morning of 10 March 2005 Patrol Officer Joseph Sellers (Sellers) observed a red Toyota truck matching the description of a truck belonging to Cyrus Brown (Brown) which had been reported stolen earlier that morning. Sellers stopped the truck. Defendant got out of the passenger side of the
The bed of the truck contained a case of Little Debbie Cakes, a table saw, a weed eater, and other tools, which had been reported missing by Perry Scott (Scott) from his garage on 10 March 2005.
Defendant was charged with felonious larceny of the truck, misdemeanor larceny of a tool box containing tools belonging to Brown, and felonious pqssession of stolen property, i.e., the truck. Defendant was also charged with felonious breaking and entering of Scott’s garage, felonious larceny of items from the garage, and possession of stolen goods pursuant to the breaking and entering by defendant.
The charges were joined for trial at the 16 October 2006 session of criminal superior court. The jury found defendant guilty of posses sion of the stolen truck and possession of stolen goods (the property from Scott’s building). Defendant was found not guilty of felonious breaking and entering of the Scott building and felonious larceny from the Scott building. Defendant subsequently pled guilty to being an habitual felon and was sentenced to 151 to 191 months imprisonment. Defendant appeals.
II. Motion to Suppress Identification
In his first argument, defendant contends that the trial court erred in failing to make sufficient findings of fact and conclusions of law in its order denying defendant’s motion to suppress Sellers’ identification of defendant as the operator of the truck. We disagree.
N.C. Gen. Stat. § 15A-977 requires that in ruling on a motion to suppress, “[t]he judge must set forth in the record his findings of facts and conclusions of law.” N.C. Gen. Stat. § 15A-977(f) (2005).
In the instant case, the trial court made the following finding:
Court had an opportunity to see and observe the witnesses to determine what credibility and weight to give each witness. Court finds that the identification of the defendant through the photograph was not impermissible, was not suggestive, and that any doubts that the defense counsel has raised go to the credibility and the weight, not the admissibility.
We hold that while the findings are indeed cursory, they are, under the circumstances of this case, adequate to support the trial court’s order denying defendant’s motion to suppress. This argument is without merit.
In his second argument, defendant contends that the court erred in denying defendant’s motion to suppress Sellers’ in-court and out-of-court identifications of defendant as being tainted by impermissibly suggestive pre-trial procedures. We disagree.
Our courts have established a two-step process for determining whether an identification procedure was so suggestive as to create a substantial likelihood of irreparable misidentification:
State v. Fowler,
First, the Court must determine whether the identification procedures were impermissibly suggestive. Second, if the procedures were impermissibly suggestive, the Court must then determine whether the procedures created a substantial likelihood of irreparable misidentification.
Sellers testified that he had an opportunity to see defendant between the time he pulled defendant over and the time defendant fled the scene. He further testified that the lights on his patrol car clearly allowed him to see defendant’s face. Although defendant contends that presenting a witness with a single photograph of a suspect is inherently suggestive, improper, and “widely condemned” by our courts,
State v. Yancey,
The trial court correctly concluded that the photo identification of defendant was not impermissibly suggestive. It was unnecessary for the court to proceed to the second step of the analysis and determine whether there was a substantial likelihood of irreparable misidentification.
See State v. Hannah,
III. Scott, Property
In his third argument, defendant contends that the court erred in sentencing him for felonious possession of stolen property as to the Scott property when the jury’s verdict only supports a misdemeanor possession of stolen property judgment. We agree.
“When 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,
Defendant asserts that
State v. Matthews
is controlling. In that case, defendant was charged with felonious breaking and entering and felonious larceny. The jury did not reach a verdict on felony breaking and entering but found defendant guilty of felonious larceny. On appeal, this Court held that “[u]nder N.C. Gen. Stat. § 14-72 (2003), defendant’s larceny could be considered a felony, rather than a misdemeanor, only if the value of the property he took was more than $1,000.00 or if he committed the larceny in the course of a felonious breaking and entering.”
Matthews,
We hold that Matthews is analogous to the instant case. Defendant was charged in a three-count indictment with felonious breaking and entering pursuant to N.C. Gen. Stat. § 14-54(A), felonious larceny pursuant to N.C. Gen. Stat. § 14-72(A), and felonious possession of stolen goods pursuant to N.C. Gen. Stat. § 14-71.1. The indictment alleged that the value of the property stolen from Scott’s garage was $981.00. The count charging Felonious Possession of Stolen Goods reads as follows:
[T]he defendant named above unlawfully, willfully and felo-niously did possess the personal property described in Count II above, which property was stolen property, being the personal property of the person, corporation, and other legal entity described in Count II above, and having the value described in Count II above, knowing and having reasonable grounds to believe the property to have been feloniously stolen, and taken pursuant to the felonious breaking and entering described in Count I above, (emphasis added)
Count I of the indictment alleged that defendant feloniously broke and entered the Scott building with the intent to commit a felony; to wit, larceny.
In order for the charge of possession of stolen goods to be a felony, rather than a misdemeanor, the State was required to show an additional element of either (1) the property stolen had a value of more than
The State argues that it presented evidence at trial that the property stolen was worth more than $1,000.00. This argument fails to comprehend that the critical factor is that the jury was not charged on this element and therefore could not have found that the goods were worth more than $1,000.00. The jury was instructed as to the charge of felonious possession of stolen goods solely on the theory that the goods were stolen pursuant to a breaking or entering.
We hold that the judgment of felonious possession of stolen goods must be vacated, and this charge remanded to the trial court for entry of judgment on the charge of misdemeanor possession of stolen goods.
See Matthews,
In his fourth argument, defendant contends that the court erred in denying his motion to dismiss the charge of possession of stolen goods as to the Scott property. We disagree.
“In ruling on a motion to dismiss at the close of evidence ... a trial court must determine whether there is substantial evidence of each essential element of the offenses charged.”
State v. Williams,
The essential elements of misdemeanor possession of stolen property are:
(1) possession of personal property;
(2) which has been stolen;
(3) the possessor knowing or having reasonable grounds to believe the property to have been stolen; and
(4) the possessor acting with a dishonest purpose.
State v. Perry,
With regard to the element of “knowing or having
reasonable grounds to believe
the property to have been stolen,” our courts have held that defendant’s guilty knowledge can be either actual or implied.
State v. Parker,
The State presented evidence that defendant was in possession of a stolen vehicle in which the tools were tall enough to obscure part of the rear cab window and were visible by casual passers-by. The vehicle and tools were reported stolen just a few hours before Sellers made the stop of the truck which defendant was in. Finally, immediately after Sellers pulled over the truck, defendant exited the vehicle and fled the scene.
We hold the State presented substantial evidence tending to show that the defendant
IV. Truck
In his fifth argument, defendant contends that the trial court erred in entering judgment on the possession of stolen property charge relating to the truck, since the jury convicted the defendant of an offense for which he was not charged. We agree.
It is error for a defendant to be “found guilty of an offense for which he was not charged.”
State v. Carlin,
As to the truck, defendant was indicted for the offense of felonious possession of stolen property pursuant to N.C. Gen. Stat. § 14-71.1. The elements of misdemeanor possession of stolen property are set forth in section III of this opinion. In order to elevate the crime to a felony, the State must show an additional element that either (1) the property was stolen pursuant to a breaking or entering,
State v. Weakley,
However, in its instructions to the jury on the charge of felonious possession of the Toyota truck, the court only charged the jury on two elements, as follows:
First, that the defendant possessed a vehicle; the Toyota truck. The defendant possessed the vehicle if he was aware of its presence and either by himself, or together with others, had both the power and intent to control its disposition or use. And second, that the defendant knew or had reasonable grounds to know that. . . the vehicle . . . had been stolen or unlawfully taken.
The jury returned a guilty verdict of “felony possession of a stolen motor vehicle.” The judgment specifically referenced N.C. Gen. Stat. § 20-106 as the statutory basis for the charge.
The court’s charge to the jury was for the offense of possession of a stolen vehicle under N.C. Gen. Stat. § 20-106. By charging the jury under the incorrect statute, the trial court lessened the State’s burden of proof by not requiring the State to prove an element which elevated the charge from a misdemeanor to a felony, i.e. that the truck had a value of over $1,000.00.
The State argues that since the trial court charged the jury on the value of the truck in connection with the charge of felonious larceny of the truck, this was sufficient to support a conviction of felonious possession of stolen goods. We find this argument disingenuous at best. As set forth above, the trial court only instructed the jury on two elements concerning the possession of stolen goods charge relating to the truck. As to each charge, the trial court charged the jury separately as to each element that it was required to find, with no cross-reference to any of the other charges. We further note that the jury found defendant not guilty of felonious larceny of the truck.
The State further contends that the reference to N.C. Gen. Stat. § 20-106 on the judgment was merely a clerical error. Had the trial
court correctly charged the jury under N.C. Gen. Stat. § 14-71.1, this would indeed be so. However, when the trial judge charges the jury on an offense that is completely different from the charge contained in the indictment, we are required to hold that the judgment imposed by the trial court is incorrect, and the judgment must be arrested.
See Carlin,
V. Habitual Felon
Since the two underlying felony convictions have been vacated and arrested, the judgment sentencing defendant for habitual felon status must also be vacated.
Judgment for felonious possession of stolen goods (truck) is ARRESTED.
Judgment imposed for habitual felon status is VACATED.