Opinion
No. COA15-1187
06-07-2016
STATE OF NORTH CAROLINA v. JOSHUA THADDEUS JONES, Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General Creecy C. Johnson, for the State. Unti & Smith, PLLC, by Sharon L. Smith 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Davie County, Nos. 14 CRS 350, 14 CRS 50082-83 Appeal by Defendant from a judgment entered 13 May 2015 by Judge Kevin M. Bridges in Davie County Superior Court. Heard in the Court of Appeals 13 April 2016. Attorney General Roy Cooper, by Special Deputy Attorney General Creecy C. Johnson, for the State. Unti & Smith, PLLC, by Sharon L. Smith for Defendant-Appellant. HUNTER, JR., Robert N., Judge.
Joshua Thaddeus Jones ("Defendant") appeals following jury verdicts convicting him of felony breaking or entering, felony larceny, and resisting a public officer. Following the verdicts, Defendant pled guilty to being a habitual felon. The trial court sentenced Defendant to 50 to 72 months imprisonment. On appeal, Defendant contends the trial court committed error by denying his motion to dismiss and violated his Due Process rights by requiring him to display a tattoo on his forearm to the jury. We disagree and hold the trial court committed no error in submitting this case to the jury.
I. Factual and Procedural Background
On 19 May 2014, a Davie County grand jury indicted Defendant for (1) felony breaking or entering, (2) felony larceny, and (3) resisting a public officer as a habitual felon. The case was called for trial 12 May 2015. The evidence presented at trial, taken in the light most favorable to the State, tended to show the following. See State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).
Renee Bumgarner and her husband own Lucky Dog Racing Collectibles Sports Collectibles, and they are in the business of selling NASCAR memorabilia and "fan products." They own a warehouse located at 4263 NC Highway 801 North in Advance, North Carolina, where they store "fan memorabilia, die[-]cast collectibles, knit caps, sweatshirts, t-shirts, [and] racing jackets." The warehouse is in a rural, wooded area, and it "look[s] like a house" but it is "really long" and has a garage door facing Highway 801. The front of the building has offices for the Bumgarners and the back of the building is used to store merchandise. The warehouse is wired with a security system that calls the police in the event of a breach.
On Saturday, 25 January 2014, at 5:00 p.m., in response to a security alarm, Deputy Adam Simmons of the Davie County Sheriff's Office drove to the Lucky Dog warehouse. He drove his patrol car to the warehouse with Deputy Tim Wall riding in the front passenger seat.
Deputy Simmons parked the patrol car and walked around the left side of the warehouse. Deputy Wall walked around the right side of the building. "The main office door was secure . . . [and] all the doors and windows seemed secure, nothing was broken, nothing was open." As Deputy Wall walked around the right side of the warehouse he found a "roll-up door" near the loading dock that was "bent in on the bottom left corner" with a two foot gap underneath it. As Deputy Simmons came around the front of the warehouse he saw Defendant thirty feet from the warehouse, walking away from the bent loading dock door. Deputy Simmons yelled to Defendant, identified himself as a deputy sheriff, and ordered Defendant to stop walking. Defendant immediately "tensed up." He turned and looked at Deputy Simmons and made eye contact, and Deputy Simmons ordered him to stop a second time.
Defendant turned around and ran towards a wooded area behind the warehouse. Deputy Simmons yelled, "Stop," and chased after Defendant. Deputy Simmons ran down a hill, through a powerline trail in woods, up another hill, and caught up with Defendant. Deputy Simmons subdued Defendant on the ground and handcuffed him.
Deputy Simmons stood Defendant upright and a "knit cap or toboggan fell out of [Defendant's] left front jacket pocket. It was red and black and had a Chevy racing logo on the back side of it, [and it also] had a NASCAR [l]ogo." The knit cap was brand new, and it did not have any signs of wear on it. Deputy Simmons patted down Defendant and found two more brand new knit caps, one solid white, the other pink.
At trial, Renee Bumgarner testified she did not give anybody permission to enter the warehouse on 25 January 2014. She did not give Defendant permission to take the knit caps, and identified the caps as products she sells.
After calling Renee Bumgarner, Deputy Simmons, and Deputy Wall as witnesses, the State called Corporal John Stephens, of the Davie County Sheriff's Office, to the stand. Corporal Stephens testified he searched the inside of the warehouse for other suspects after Deputy Simmons arrested Defendant. The State asked Corporal Stephens about the three knit caps in evidence and published them for the jury. Then, the State asked Corporal Stephens the following questions:
[THE STATE]: Corporal Stephens, in particular there's a [toboggan] up there. I think it is the black and red multi-colored one?
[STEPHENS]: Yes ma'am.
[THE STATE]: You said you saw a particular symbol on that one if that's the correct one?
[STEPHENS]: There's a Chevy symbol on there.
[THE STATE]: When you say Chevy, what are you talking about?
[STEPHENS]: The Chevy logo for trucks and cars.
[THE STATE]: You have been in the courtroom, have you not?The trial court allowed counsel to examine Corporal Stephens on voir dire outside the presence of the jury. Defense counsel argued, "Whatever the case law is [Defendant] is forced to exhibit a part of his body which the jury can assume to mean anything. That's a presumption. It doesn't mean one thing or another. That's the presumption." The trial court directed Defendant to show his right forearm tattoo and stated the following:
[STEPHENS]: Yes ma'am.
[THE STATE]: Have you had a chance to look at the defendant's table?
[STEPHENS]: Yes.
[THE STATE]: Have you had a chance to see the defendant's arms?
[STEPHENS]: Yes, ma'am.
[THE STATE]: Have you noticed anything in particular about the defendant's right forearm?
[DEFENSE COUNSEL]: Objection, your Honor.
[THE COURT]: Counsel approach.
Let the record reflect that the Court did review the tattoo on the defendant's right forearm here at the bench. The knit cap with a consistent symbol was held up by Corporal Stephens and the attorneys were present as well. And the Court concludes that is very consistent with the symbol on the knit cap or toboggan, that being the tattoo on the defendant's arm. At this time the objection from defense is
overruled. And I will have the defendant stand in front of the jurors next to Corporal Stephens as Corporal Stephens holds up the knit cap. They are entitled to that view based on the arguments from the State and the jurors can make any, draw any conclusions or find any facts as they see fit and I will, of course, allow the State to make any appropriate arguments based on this evidence.
The trial court called the jury back into the courtroom and the State asked Corporal Stephens the following, without objection from Defendant:
[THE STATE]: Did you have an opportunity at some point today, one or more times today, to see the defendant's right forearm?
[STEPHENS]: Yes, ma'am.
[THE STATE]: Did something draw your attention to that right forearm?
[STEPHENS]: Yes, ma'am, a tattoo.
[THE STATE]: Describe what drew your attention.
[STEPHENS]: I saw a tattoo of the Chevy symbol on his right forearm. . . .
[THE STATE]: Do you have the [knit] caps in front of you?
[STEPHENS]: Yes.
[THE STATE]: Do you have the black and red cap in front of you?
[STEPHENS]: Yes.
[THE STATE]: What appears to be on it?
[STEPHENS]: The same Chevy symbol.
[THE STATE]: I would ask that the defendant stand in front of the jury and allow [Corporal] Stephens to stand in front holding the knit cap.The Defendant stood in front of the jury and showed his right forearm tattoo without objecting.
Defense counsel cross-examined Corporal Stephens about whether he knew Defendant and whether he knew when Defendant got the Chevy tattoo. After Corporal Stephens testified, defense counsel "renew[ed] [its] objection on the [] sequence of events with Officer Stephens." The trial court denied the objection. Then, Defendant moved to dismiss the charges and the trial court denied his motion.
Defendant testified to the events of 25 January 2015 as follows:
That morning I woke up, got dressed, ate breakfast, everything was normal, called a buddy of mine to go hangout with him. Around noon went up to his house up here in Davie County off of 801. Hung out. He's a drinker. He drinks a little beer. . . . Around [5:00 p.m.] . . . I make a decision in my life to walk to the store to get a pack of cigarettes. I'm a smoker. I know, young, shouldn't do it. So I walk to the store to get a pack of cigarettes. As I'm on the way to the store, as I get up and cross 64 I encounter a black man at a loading dock of Lucky Dog[] Racing . . . that holl[e]rs at me. Saturday, beautiful day, a little chilly, hey, what's going on? Would you be interested in any of this stuff that I am getting rid of? As he was going through it, me not thinking Saturday, people have yard sales, I walk-up, I look. There was merchandise in the couple boxes that he had that he was pilfering through, told me, stated he was getting rid of [it]. I asked him to let me look at the toboggans that you have all seen that I did in fact get caught with in my possession because . . . [h]e asked me if more or less if I was interested in anything, he was going
through the stuff to get rid of it, spring cleaning, whatever. I'm thinking I have a little younger brother and sister. Yes, I love [Chevrolet]. My daddy drag-raced. I have been under a car since I was in diapers. As me being the oldest sibling and I have a younger brother and sister, I pick up the beenies . . . the toboggans that I was caught with, you know. . . . Asked him legitimately, what do you want for them? He said, "Just take them. Are you sure you don't want anything else?" There was like clothes like I said earlier, clothes and stuff like that that he was pondering through. I was like, "I'm good." I offered again for money. He said, no. I didn't think nothing of it. I put it in my front coat pocket. As I walked away, he was in a frantic mode. I should have known then, I didn't. I'm thinking he's trying to get stuff out of storage to clean out maybe put more in. I walk to the store directly across from the Racing Dog[] to go get cigarettes and actually to use the phone, too, to call a friend to come up and hangout with David, the friend that I was staying with that lives on 801. So I'm in the store for a little bit, bought cigarettes. . . . Anyway, I left out and . . . . I was coming up the side of the road where I walked into the yard of the building 'cause [sic] I got thinking the guy was giving away shirts and stuff. The guy I was hanging out with, David, he's a motorhead, too, so I was going to get him—he likes Dale Earnhardt, Jr., I seen previously there was a Dale Earnhardt, Jr. [shirt]—He was a bigger guy—seen if they had a 3X. No longer than I got up on the, I guess what would you call that a canal or the ditch line, more or less going back towards the building to see if I could find the black male I observed earlier, that is when Mr. Simmons come around and, you know, told me, "stop" as a deputy. Well, the reason why I run, and I'm sure it's going to be brought up later by the Prosecutor, I have made several mistakes . . . until the past couple years ago, I have made, you know, real bad decisions and [got] caught and pled to some charges, you know, that I was guilty of. . . . I knew I was guilty. I took a plea, you know, stood up like a man, took my time or took probation. At the time that Mr. Simmons seen me, the previous week before I missed a court date. . . . I missed a court date. I was wanted. I had
a warrant for my arrest.
After Defendant testified, he rested his case. The State called Sergeant Mike Butero of the Davie County Sheriff's Office as a rebuttal witness. Sergeant Butero testified he interviewed Defendant after Defendant waived his Miranda rights on 25 January 2014. During the interview, Defendant told Sergeant Butero a similar story about a black man giving away merchandise at the Lucky Dog warehouse. Defendant told Sergeant Butero that "the black male just handed him the items with no questions asked and no conversation between either of them." Sergeant Butero asked Defendant if that seemed suspicious and Defendant "would not answer that question." Sergeant Butero asked Defendant "if that was the story he was sticking to" and Defendant "looked down around several times and answered yes. [Defendant] said that he was whistling for his dog and wasn't paying any attention to the building when the deputies arrived." Prior to that moment in the interview, Defendant had "never mentioned having a dog . . . ."
After Sergeant Butero testified, the State rested its case. Defendant did not offer any evidence and renewed his motion to dismiss. The trial court denied Defendant's motion and held a charge conference. The jury deliberated for forty minutes and unanimously found Defendant guilty of felony breaking or entering, felony larceny, and resisting a public officer. Then, Defendant pled guilty to being a habitual felon and stipulated he had a Level II prior record level for sentencing purposes. The trial court found a mitigating factor for Defendant's support system in the community and sentenced him in the mitigated range to 50 to 72 months imprisonment. Defendant did not timely enter his notice of appeal.
The next day, 14 May 2015, Defendant filed pro se a notice of appeal. The trial court appointed Defendant appellate counsel. Appellate counsel field a petition for writ of certiorari on behalf of Defendant on 6 January 2016, and this Court referred the petition to this panel on 12 January 2016. We grant Defendant's petition for writ of certiorari.
II. Standard of Review
"This Court reviews the trial court's denial of a motion to dismiss de novo." State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). "'Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.'" State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).
III. Analysis
On appeal, Defendant contends (1) the trial court erred by denying his motion to dismiss the felony breaking or entering and felony larceny charges because the State failed to provide sufficient evidence that he broke into or entered the Lucky Dog warehouse, and (2) the trial court violated his Due Process rights by compelling him to display his forearm tattoo to the jury. We disagree.
To present a felony breaking or entering case to a jury under N.C. Gen. Stat. § 14-54(a), the State must provide sufficient evidence of "(1) the breaking or entering, (2) of any building, (3) with the intent to commit any felony or larceny therein." State v. Haymond, 203 N.C. App. 151, 168, 691 S.E.2d 108, 122 (2010), rev. denied, 364 N.C. 600, 704 S.E.2d 275 (2010) (quoting State v. Walton, 90 N.C. App. 532, 533, 369 S.E.2d 101, 103 (1988)). A breaking is "any act of force, however slight, employed to effect an entrance through any usual or unusual place of ingress." Haymond, 203 N.C. App. at 168, 691 S.E.2d at 122 (citation omitted). "The element of an entry is satisfied if a person inserts 'any part of the body, hand, foot, or any instrument or weapon' into a building." Id. (quoting State v. Turnage, 362 N.C. 491, 494, 666 S.E.2d 753, 756 (2008)).
Larceny occurs when a (1) defendant takes the property of another, (2) carries it away, (3) without the owner's consent, and (4) with the intent to permanently deprive the owner of the property. State v. Bowden, 216 N.C. App. 275, 278, 717 S.E.2d 230, 233 (2011) (citation omitted); see also N.C. Gen. Stat. § 14-72(b)(2) (2015). A larceny committed after breaking or entering is a felony, regardless of the value of the stolen property. Bowden, 216 N.C. App. at 278, 717 S.E.2d at 233 (citation omitted).
The doctrine of recent possession is 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." State v. Maines, 301 N.C. 669, 673, 273 S.E.2d 289, 293 (1981) (citation omitted). This presumption can be strong or weak "depending upon the circumstances of the case and the length of time intervening between the larceny of the goods and the discovery of them in [the] defendant's possession." Id. 301 N.C. at 673-74, 273 S.E.2d at 293 (citation omitted). "[W]hen 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." Id. 301 N.C. at 674, 273 S.E.2d at 293 (citation omitted). The presumption arising from the possession of stolen property "is to be considered by the jury merely as an evidential fact, along with the other evidence in the case, in determining whether the State has carried [its] burden . . . ." Id. (citation omitted).
Here, the State presented evidence that Defendant was in possession of three knit caps that were stolen from Lucky Dog Racing. Defendant, by his own admission, was near the Lucky Dog warehouse at the time of the breaking or entering and larceny. When the deputies responded to the warehouse's security alarm, they discovered a bent door with an opening large enough for a person to crawl under. As the deputies searched, Defendant walked away from the bent door and ran towards the woods after deputies commanded him to stop. Taken in the light most favorable to the State, this evidence is sufficient for the case to be submitted to the jury.
Second, we dismiss Defendant's unpreserved argument regarding his tattoo. When the State asked the trial court to publish Defendant's forearm tattoo to the jury, Defendant raised a general objection that a "presumption" might arise from the tattoo. He never elaborated upon his objection and he did not present a Due Process argument to the trial court. To preserve an issue for appellate review under the North Carolina Rule of Appellate Procedure 10(a)(1), "a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." N.C. R. App. P. 10(a)(1) (2015). "[T]his Court has held 'a general objection, if overruled, is ordinarily not effective on appeal.'" State v. Parker, 140 N.C. App. 169, 183, 539 S.E.2d 656, 665 (2000) (quoting State v. Hamilton, 77 N.C. App. 506, 509, 335 S.E.2d 506, 508 (1985)).
Defendant raises his Due Process argument for the first time on appeal. "Constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal." State v. Smith, 180 N.C. App. 86, 99-100, 636 S.E.2d 267, 276 (2006) (quoting State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473 (2002)). Therefore, we dismiss Defendant's Due Process argument.
IV. Conclusion
For the foregoing reasons, we hold the trial court did not commit error.
NO ERROR.
Judges CALABRIA and TYSON concur.
Report per Rule 30(e).