Opinion
No. COA03-1482
Filed 4 January 2005 This case not for publication
Appeal by defendant from judgment dated 16 July 2003 by Judge Kenneth F. Crow in Superior Court, Duplin County. Heard in the Court of Appeals 13 September 2004.
Attorney General Roy Cooper, by Assistant Attorney General Meredith Jo Alcoke, for the State. Michael J. Reece for defendant-appellant.
Duplin County Nos. 02 CRS 003986, 003987.
Tirrell D. Williams (defendant) was convicted of felonious possession of stolen goods and conspiracy to feloniously possess stolen goods. Defendant appeals.
The State's evidence at trial tended to show that a break-in occurred at the Treasure House pawnshop and variety store in Wallace on 28 May 2002. A sledgehammer was used to break a window and gain entry into the store, causing property damage in the amount of approximately $5,000. Seventeen firearms and hundreds of pieces of jewelry with a total value of approximately $25,000 were stolen.
Kerry Morrison (Morrison) was at a park on 28 May 2002 when J.B. Walker (Walker) and Andrew Walters (Walters) approached her. Walker and Walters gave Morrison jewelry and asked her to pawn it for them because they were under eighteen years of age and did not have identification. Morrison asked Walker and Walters where they had obtained the jewelry. Walker and Walters said they had received the jewelry from a "crack head." When Morrison expressed disbelief, Walker and Walters stated that a man from Elizabethtown had sold the jewelry to them "real cheap."
Morrison testified that the following day, Morrison, David Pigford (Pigford), and defendant drove to a pawnshop in Warsaw. They met Walker and Walters in the parking lot. Walker and Walters gave defendant several pieces of jewelry in a plastic bag. Defendant took the plastic bag and went inside the pawnshop where he pawned the jewelry. Morrison also pawned jewelry she had received from Walker and Walters the day before.
After leaving the pawnshop in Warsaw, defendant, Morrison, Pigford, Walker, and Walters drove to a pawnshop in Clinton. Walker and Walters again gave defendant jewelry in the parking lot which defendant took into the pawnshop and pawned. Morrison also entered the pawnshop and pawned jewelry she had received from Walker and Walters the day before. Morrison testified that defendant never had any of the jewelry prior to arriving at either of the pawnshops. Morrison did not see defendant give anyone the money he received from pawning the jewelry.
Morrison's testimony was confirmed by David Millard (Millard) and Martin Palacios (Palacios). Millard, who worked at Quality Jewelry and Pawn (Quality Pawn) in Warsaw, testified that on 29 May 2002, defendant sold nine rings to Quality Pawn for seventy-two dollars. Palacios, who worked at Big Pawn in Clinton, testified that on 29 May 2002, defendant sold seven pieces of jewelry to Big Pawn for ninety dollars.
Chief of Police Bobby Maready (Chief Maready) of the Wallace Police Department investigated the Treasure House break-in. Chief Maready testified that he received information that defendant had pawned some jewelry at Quality Pawn and Big Pawn. Chief Maready obtained the jewelry defendant had pawned and showed the jewelry to Joseph Merritt (Merritt), a Treasure House employee. Merritt confirmed that this jewelry had been taken from Treasure House during the break-in.
Defendant was arrested on 18 June 2002. Officer Emmanuel Pickett testified that defendant made a statement in which he admitted that he pawned jewelry for his cousin because his cousin did not have identification. Defendant was subsequently charged with felonious breaking and entering, felonious larceny, felonious possession of stolen goods, and conspiring with Walker and Walters to feloniously possess stolen goods.
At the close of the State's evidence, defendant made a motion to dismiss all of the charges against him. The trial court dismissed the charges of felonious breaking and entering and felonious larceny, but denied defendant's motion to dismiss the charges of felonious possession of stolen goods and conspiracy to feloniously possess stolen goods. Defendant did not present any evidence, but he renewed his motions to dismiss the remainder ofthe charges. The trial court denied the motions.
The trial court prepared a jury charge on felonious possession of stolen goods and conspiracy to feloniously possess stolen goods on a theory that the goods were worth more than $1,000. Both the State and defendant had the opportunity to review the proposed jury charge. The trial court noted on the record that the parties were in agreement with the charge and that neither voiced any objections.
The trial court instructed the jury on felonious possession of stolen goods and conspiracy to feloniously possess stolen goods, based on the theory that the stolen goods were worth more than $1,000, in violation of N.C. Gen. Stat. § 14-72(a). The trial court also instructed the jury on misdemeanor possession of stolen goods, a lesser included offense. See State v. Brantley, 129 N.C. App. 725, 731, 501 S.E.2d 676, 680 (1998).
After the jury retired to consider its verdict, the State asked that the trial court reinstruct the jury. The State sought an instruction on felonious possession of stolen goods on the theory that the goods were stolen pursuant to a breaking and entering, in violation of N.C. Gen. Stat. § 14-72(c), rather than on the theory that the stolen goods were worth more than $1,000. The trial court noted that the State did not originally request such an instruction:
THE COURT: [Attorney for the State] brought out a point. He's actually correct. I didn't charge because he didn't ask for that and now he's asking.
The trial court was then informed that the jury had alreadyreturned with its verdict. Over defendant's objection, the trial court agreed with the State that the jury should be reinstructed:
THE COURT: . . . That's probably what I should have instructed [the jury] on in the beginning so I plan on bringing them out and doing that. . . . What I think would be a better practice would be to instruct this jury again on felonious conspiracy and the possession of stolen property. . . .
. . . .
[ATTORNEY FOR DEFENDANT]: So you're saying that you should not have instructed on the possession of stolen property the way you did?
THE COURT: That's what I'm saying. I should have given the instruction of 216.48, property that's a product of breaking and entering. . . .
. . . .
The more I think about this, the more I realize what I just need to do is bring them out and tell them I'm going to give them a corrected instruction and that I gave them an incorrect instruction because that's what happened. I'm satisfied that's what has happened. I think I gave them the wrong instructions. I am going to call them back out and I'm going to re-instruct them.
The trial court then sealed the jury's original verdict and reinstructed the jury on felonious possession of stolen goods and conspiracy to feloniously possess stolen goods on the theory that the goods were stolen pursuant to a breaking and entering. The trial court did not reinstruct on felonious possession of stolen goods on the theory that the stolen goods were worth more than $1,000. The trial court also did not reinstruct the jury on misdemeanor possession of stolen goods. The jury thereafter came back with a verdict finding defendant guilty of both feloniouspossession of stolen goods and conspiracy to feloniously possess stolen goods. The trial court did not unseal the jury's original verdict.
At sentencing, the trial court consolidated the two offenses and sentenced defendant to a minimum of ten months and a maximum of twelve months in prison. The State asked that defendant be held jointly and severally liable with Walker, Walters, and Morrison for restitution in the amount of $30,162: $30,000 to Treasure House, $72 to Quality Pawn, and $90 to Big Pawn. Thereafter, the trial court recommended, as a condition of post-release supervision, restitution in accordance with the State's request.
Defendant assigns error to the trial court's failure to reinstruct the jury on misdemeanor possession of stolen goods, a lesser included offense of felonious possession of goods stolen pursuant to a breaking and entering. See State v. Hargett, 148 N.C. App. 688, 692, 559 S.E.2d 282, 285-86 (2002). Since we find that the outcome of this issue is dispositive of this case on appeal, we need not consider defendant's remaining assignments of error.
We first note that it is not error to reinstruct a jury even after a jury has returned with a verdict, as long as the verdict is not returned in open court. State v. Bell, 159 N.C. App. 151, 156, 584 S.E.2d 298, 302 (2003), cert. denied, 358 N.C. 733, ___ S.E.2d ___ (2004) (holding that the trial court did not err when it reinstructed a jury that had returned with a verdict, since the verdict was never read in open court, shown to the judge, or shownto either party's counsel, and was sealed for appellate review); see also N.C. Gen. Stat. § 15A-1237(b) (2003). However, we do find that the trial court erred during the reinstruction by not instructing the jury on the lesser charge of misdemeanor possession of stolen goods.
Our Supreme Court has stated that "[i]t is well settled that `a defendant is entitled to have all lesser degrees of offenses supported by the evidence submitted to the jury as possible alternate verdicts.'" State v. Drumgold, 297 N.C. 267, 271, 254 S.E.2d 531, 533 (1979) (quoting State v. Palmer, 293 N.C. 633, 643-44, 239 S.E.2d 406, 413 (1977)). However, "[a]n instruction on a lesser-included offense must be given only if the evidence would permit the jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater." State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771 (2002). In order to determine whether an instruction on a lesser included offense should be given, "[t]he test is whether there `is the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense.'" State v. Thomas, 325 N.C. 583, 594, 386 S.E.2d 555, 561 (1989) (quoting State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981)).
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 believethe property to have been stolen pursuant to a breaking and entering, and (4) the possessor acting with a dishonest purpose." Hargett, 148 N.C. App. at 691, 559 S.E.2d at 285. In contrast, the elements of misdemeanor possession of stolen goods 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, 305 N.C. 225, 233, 287 S.E.2d 810, 815 (1982). Therefore, while a defendant can be convicted of misdemeanor possession of stolen goods by merely knowing or having reasonable grounds to believe that the goods were stolen, a defendant can only be convicted of felonious possession of goods stolen pursuant to a breaking and entering if the defendant knows or has reasonable grounds to believe that the goods were stolen pursuant to a breaking and entering.
The State argues that the evidence showed that defendant knew or had reasonable grounds to believe that the goods he possessed were stolen pursuant to a breaking and entering. The State relies on the evidence that defendant was given plastic bags full of jewelry in two pawnshop parking lots, defendant pawned the jewelry at two different pawnshops in a short period of time, and defendant was not seen giving the money he received from pawning the jewelry to the individuals who gave him the jewelry. The State also argues that defendant's co-conspirators' knowledge that the goods were stolen pursuant to a breaking and entering is "imputed" to defendant by virtue of his involvement in the conspiracy. We do not find that the State's evidence necessarily showed that defendant knew or had reasonable grounds to believe that the goods were stolen pursuant to a breaking and entering. We believe that the circumstances surrounding the possession of the goods would equally lead a rational trier of fact to the conclusion that defendant knew only that the goods were stolen and did not know that they were stolen pursuant to a breaking and entering. In addition, the State presented no evidence as to defendant's co-conspirators' knowledge about the origin of the goods. Therefore, "the evidence would permit the jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater." Millsaps, 356 N.C. at 561, 572 S.E.2d at 771. As a result, we hold that it was error for the trial court to fail to instruct the jury on the lesser charge of misdemeanor possession of stolen goods. Defendant is therefore entitled to a new trial. See Hargett, 148 N.C. App. at 692, 559 S.E.2d at 286.
We note that the jury was instructed on misdemeanor possession of stolen goods during the trial court's first instruction to the jury. The trial court effectively disposed of this instruction when it reinstructed the jury. The trial transcript clearly shows that the trial court did not intend for the jury to rely on the earlier instruction. The trial court stated repeatedly that the jury should "start over":
THE COURT: . . . I'm going to instruct you again and then when you go back after hearing your instructions and arguments of the attorneys, essentially what I want you to do is start fresh. I want you to get me another foreperson. I want you to go back and startall over again. . . .
After the jury was reinstructed, the trial court made these further statements:
THE COURT: . . . . So with that new instruction, here's what I want you to do. I want you to start over. . . . But here's what I want you to make a commitment to me to do; start fresh. Start over. Deliberate it. . . . Go back and start over and uphold your oaths of office. . . .
Based on the above excerpts, we cannot find that the jury received any guidance from, or relied on, the prior instruction after the jury was reinstructed.
In addition, since the elements of conspiracy to feloniously possess stolen goods are so directly related to the elements of felonious possession of stolen goods, we cannot determine to what degree the jury acted on the faulty instructions when finding defendant guilty of the conspiracy charge. Therefore, we hold that defendant is entitled to a new trial on the conspiracy charge as well. See State v. Petersilie, 334 N.C. 169, 191-93, 432 S.E.2d 832, 845-46 (1993) (holding that when the appellate court cannot determine if a jury relied on faulty instructions in reaching a verdict, the case must be remanded for new proceedings); see also State v. Kelly, 120 N.C. App. 821, 825, 463 S.E.2d 812, 814 (1995) (holding that a defendant is entitled to a new trial if there is a reasonable possibility that, had a faulty jury instruction not been given, the trial would have come to a different result).
New trial.
Chief Judge MARTIN and Judge WYNN concur. Report per Rule 30(e).