Opinion
NO. COA10-1484
08-16-2011
STATE OF NORTH CAROLINA v. BRANDON MONTEZ HOWARD
Attorney General Roy Cooper, by Assistant Attorney General Larissa S. Williamson, for the State. Richard Croutharmel for Defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Durham County No. 09 CRS 40895
Appeal by defendant from judgment entered 3 November 2009 by Judge James E. Hardin, Jr., in Durham County Superior Court. Heard in the Court of Appeals 28 April 2011.
Attorney General Roy Cooper, by Assistant Attorney General Larissa S. Williamson, for the State.
Richard Croutharmel for Defendant-appellant.
ERVIN, Judge.
Defendant Brandon Howard appeals from a judgment sentencing him to a minimum term of six months and a maximum term of eight months imprisonment in the custody of the North Carolina Department of Correction based upon his conviction for possession of stolen property, with Defendant's active sentence having been suspended and Defendant having been placed on supervised probation for a period of thirty-six months subject to certain terms and conditions. On appeal, Defendant contends that the trial court erred by accepting the jury's verdict convicting him of felonious possession of stolen property on the grounds that "the jury returned a 'not guilty' verdict on the underlying breaking or entering charge . . . and there was no evidence that Defendant knew or had reason to believe the goods were stolen pursuant to a breaking or entering committed by some other person[.]" After careful consideration of Defendant's challenge to the trial court's judgment in light of the record and the applicable law, we conclude that no error of law occurred during the proceedings leading to the entry of the trial court's judgment and that Defendant is not entitled to any relief from the trial court's judgment on appeal.
I. Background
A. Substantive Facts
On 13 January 2009, Willie Hill, III, was working at North Carolina Central University. Mr. Hill was familiar with both Warren Little and Defendant since his wife had been one of their teachers and since Defendant had been to the Hills' house several times for the purpose of playing with Mr. Hill's son. At approximately 1:00 p.m., Mr. Hill received a call from his sister-in-law informing him that the alarm company had tried to reach him because his home burglar alarm had been activated.
Durham Police Officer Harlan Crenshaw was dispatched to Mr. Hill's residence, located at 12 Joel Court in Durham, to investigate a report that a burglar alarm at that location had sounded. Officer Crenshaw and Officer Dustin Matthews, also of the Durham Police Department, arrived at Mr. Hill's residence at approximately the same time and noticed that a door in the rear of the house that led to the basement had been kicked in with sufficient force to detach the door from its hinges. After checking the interior of the residence and determining that no one was inside, the officers went outside to wait for Mr. Hill, who arrived about thirty minutes later.
Mr. Hill testified that his burglar alarm was "a loud alarm, and it also has the flashing yellow light and stuff on the outside." According to Mr. Hill, once the alarm was activated, it continued to emit sound until he returned home, entered the house, and turned it off. Upon entering his house, Mr. Hill discovered that an Acer brand laptop and a Kodak digital camera were missing.
On the same date, Jerry Cates was painting his townhouse, which was located about 200 yards from Mr. Hill's house. Between 8:00 and 9:00 a.m. on that date, Mr. Cates saw Mr. Little and Defendant talking to a third individual in a parking lot about 100 feet away. Mr. Cates saw Defendant and Mr. Little again about five minutes after Mr. Hill's burglar alarm began sounding. At that time, Mr. Little and Defendant were walking rapidly through Mr. Cates' yard from the direction of Mr. Hill's residence while remaining close together and "following right behind each other." Mr. Cates noticed that Mr. Little was carrying a laptop computer and a blue digital camera. In a statement that he gave to investigating officers about a week after the break-in at Mr. Hill's residence, Mr. Cates stated, in part, that:
The statement that Mr. Cates gave to investigating officers was redacted before being shown to the jury for the purpose of removing inadmissible hearsay and references to other neighborhood break-ins.
On January 13, Tuesday, about 8 or 9 a.m., I was painting my windows and heard Junior Warren Little and B, Brandon, yelling and arguing with a Hispanic male. When the Hispanic male left, Junior Warren Little said he was going to kick in the door and look for guns. Then I heard some noise and came to back to the back of the house and Junior Warren Little was carrying a laptop and a blue digital camera.
After speaking with Mr. Cates and Mr. Hill, Investigator Tyson Christenson of the Durham Police Department obtained warrants for the arrest of Defendant and Mr. Little. Although Investigator Christenson attempted to serve the arrest warrant on Mr. Little at his residence, no one answered the door at that location. At the time he was at Mr. Little's house, Officer Christenson decided to search the woods behind Mr. Little's house because, in his experience, juveniles frequently hide stolen goods in wooded areas. About 100 feet behind Mr. Little's house, Investigator Christenson found an Acer brand laptop computer, later identified as the one that had been stolen from Mr. Hill's house.
B. Procedural History
On 27 January 2009, a warrant for arrest charging Defendant with aiding and abetting felonious larceny was issued. On 6 April 2009, the Durham County grand jury returned a bill of indictment charging Defendant with felonious breaking and entering, aiding and abetting Mr. Little in the commission of a felonious larceny, and felonious possession of stolen property. The charges against Defendant and Mr. Little came on for trial before the trial court and a jury at the 28 October 2009 criminal session of the Durham County Superior Court. On 3 November 2009, the jury returned verdicts finding Defendant not guilty of felonious breaking or entering, not guilty of aiding and abetting felonious larceny, and guilty of felonious possession of stolen property. At the ensuing sentencing hearing, the trial court determined that Defendant had two prior record points and should be sentenced as a Level II offender. Based upon these determinations, the trial court sentenced Defendant to a minimum term of six months and a maximum term of eight months imprisonment in the custody of the North Carolina Department of Correction, with this sentence being suspended and Defendant being placed on supervised probation for a period of thirty-six months subject to certain terms and conditions. Defendant noted an appeal to this Court from the trial court's judgment.
II. Legal Analysis
On appeal, Defendant argues that the trial court erred by accepting the jury's verdict convicting him of felonious possession of stolen property on the grounds that, given the jury's verdicts acquitting both Defendant and Mr. Little of felonious breaking or entering and felonious larceny, the evidence was insufficient to support Defendant's conviction. In advancing this challenge to the trial court's judgment, Defendant concedes that "the jury's failure to convict the defendant of the underlying breaking or entering was not fatally inconsistent with its conviction for felony possession of stolen goods." In addition, Defendant acknowledges that "'[a] defendant does not have to be found guilty of committing an underlying breaking or entering in order to be convicted of felonious possession of stolen goods [if he has] knowledge or reasonable grounds to believe the goods were stolen during a breaking or entering.'" (quoting State v. Tanner, 364 N.C. 229, 233, 695 S.E.2d 97, 101 (2010)). Defendant does argue, however, that the record did not contain sufficient evidence to permit a reasonable jury to find that he knew or had reasonable grounds to believe that the property was stolen. As a result, the argument that Defendant advances on appeal is tantamount to a challenge to the sufficiency of the evidence to support his conviction.
The standard for ruling on a motion to dismiss is "whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense." Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." The trial court must consider the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference that might be drawn therefrom. The test for sufficiency of the evidence is the same regardless of whether the evidence is circumstantial or direct.State v. McQueen, 165 N.C. App. 454, 458-59, 598 S.E.2d 672, 676 (2004) (quoting State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990), and State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980), and citing State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984), and State v. Earnhardt, 307 N.C. 62, 68, 296 S.E.2d 649, 653 (1982)), disc. review denied, 359 N.C. 285, 610 S.E.2d 385 (2005). We will now evaluate the merits of Defendant's challenge to the trial court's judgment utilizing this standard of review.
"The essential elements of felonious possession of stolen property are: '(1) possession of personal property, (2) which was stolen pursuant to a breaking or entering, (3) the possessor knowing or having reasonable grounds to believe the property to have been stolen pursuant to a breaking or entering, and (4) the possessor acting with a dishonest purpose.'" State v. Southards, 189 N.C. App. 152, 156, 657 S.E.2d 419, 421 (2008) (quoting McQueen, 165 N.C. App. at 459, 598 S.E.2d at 676. "'Whether the defendant knew or had reasonable grounds to believe that . . . [property was] stolen must necessarily be proved through inferences drawn from the evidence.'" Southards, 189 N.C. App at 157, 598 S.E.2d at 722 (quoting State v. Brown, 85 N.C. App. 583, 589, 355 S.E.2d 225, 229, disc. review denied, 320 N.C. 172, 358 S.E.2d 57 (1987)). "Our Supreme Court has held the legislature intended for the 'reasonable man' standard to apply to the offense of possession of stolen goods." State v. Weakley, 176 N.C. App. 642, 652, 627 S.E.2d 315, 321 (2006) (citing State v. Parker, 316 N.C. 295, 304, 341 S.E.2d 555, 560 (1986)).
When taken in the light most favorable to the State, the evidence received at trial tended to show that:
1. At approximately 1:00 p.m. on 13 January 2009, a loud burglar alarm with flashing light was activated at Mr. Hill's home.After carefully reviewing the record, we conclude that the evidence tending to show that (1) Defendant and Mr. Little were seen coming from the direction of Mr. Hill's house with a laptop computer and a camera in their possession; (2) a laptop and camera were stolen from Mr. Hill's house; and (3) Mr. Hill's laptop was recovered from the area behind Mr. Little's house, taken in combination, was sufficient to allow the jury to infer that Mr. Little and Defendant possessed the items stolen from Mr. Hill's house. As a result, the ultimate issue before us for purposes of properly deciding this case hinges upon the sufficiency of the evidence to show the requisite guilty knowledge.
2. About five minutes later, while the alarm was still sounding, Mr. Cates saw Defendant and Mr. Little walking rapidly through his yard from the direction of Mr. Hill's house. Mr. Little was carrying a laptop computer and a camera.
3. Shortly after the burglar alarm sounded, law enforcement officers were dispatched to Mr. Hill's house, where they saw a rear door had been kicked in. After ascertaining that no one was inside, the investigating officers waited for Mr. Hill to arrive.
4. Upon arriving at his home, Mr. Hill entered his residence and turned off the alarm, which had been sounding continually until that point. Mr. Hill told the investigating officers that a laptop computer and digital camera were missing from his home.
5. After speaking with Mr. Hill and Mr. Cates, Investigator Christenson obtained warrants for the arrest of Mr. Little and Defendant. While attempting to serve Mr. Little, Investigator Christenson searched the area behind Mr. Little's house and found a laptop computer about 100 feet behind that structure. Mr. Hill provided a receipt showing that the laptop recovered near Mr. Little's house was the laptop that had been stolen from his residence.
Although Defendant argues that the record did not contain sufficient evidence to establish that Defendant knew or had reasonable grounds to believe that the laptop and camera had been stolen in a break-in, the record also tended to show that: (1) Mr. Hill's back door was kicked in; (2) Mr. Cates saw Defendant and Mr. Little with the laptop and camera just a few minutes after Mr. Hill's burglar alarm went off and at a time when it was still emitting a loud noise; and (3) when Mr. Cates saw Defendant and Mr. Little, they were walking very rapidly from the direction of Mr. Hill's house. Defendant concedes that "[Mr.] Cates' testimony does not preclude a theory that Defendant and [Mr.] Little found the laptop and camera near enough to [Mr.] Hill's house to presume that someone else had broken into [Mr.] Hill's house, taken the laptop and camera, and discarded both items nearby without themselves having had anything to do with the illegal entry into [Mr.] Hill's house." We believe that Defendant's concession underscores the likelihood that the jury inferred that, having found the items outside a house whose door was kicked in and whose burglar alarm was blaring loudly, Defendant had reasonable grounds to believe the items were stolen.
The fact that the jury acquitted Mr. Little and Defendant of felonious breaking or entering and felonious larceny does not mean that there was no evidence tending to indicate Defendant's involvement in the charged offenses. Instead, those verdicts simply established that the State had failed to prove Defendant's guilt of those offenses beyond a reasonable doubt. Even so, the jury was still free to consider any evidence tending to suggest that Defendant might have been involved in the break-in and theft at Mr. Hill's residence for the purpose of determining whether Defendant knew or had reasonable grounds to believe the property in question was stolen. For example, given that Defendant and Mr. Little were seen shortly after Mr. Hill's burglar alarm sounded, the jury could properly have inferred a consciousness of guilt from the fact that they moved rapidly through Mr. Cates' yard instead of inquiring if Mr. Cates knew who owned the items they were carrying. Therefore, we conclude that the record evidence would permit a reasonable juror to conclude that Defendant knew or had reasonable grounds to believe that the property in question was stolen.
Thus, for the reasons set forth above, we conclude that the record evidence, when taken in the light most favorable to the State, was more than sufficient to allow the jury to find that Defendant constructively possessed Mr. Hill's laptop and camera and that Defendant knew or had reasonable grounds to believe that these items were stolen in the course of a break-in. As a result, the trial court did not err by accepting the jury's verdict convicting Defendant of felonious possession of stolen property, requiring us to decline Defendant's request that he be afforded relief from the trial court's judgment.
NO ERROR.
Judges CALABRIA and THIGPEN concur.
Report per Rule 30(e).