State v. Byrd, No. COA05-397 (N.C. App. 6/06/2006)
| Decision Date | 06 June 2006 |
| Docket Number | No. COA05-397,COA05-397 |
| Parties | STATE OF NORTH CAROLINA v. CHARLES BYRD |
| Court | North Carolina Court of Appeals |
William D. Spence for defendant-appellant.
Charles Byrd (defendant) was indicted for felony breaking or entering a motor vehicle, financial transaction card theft, obtaining property by false pretenses, and being an habitual felon. At trial, the State offered evidence tending to show that on 11 August 2002 Officer Ronnie Lovick observed defendant ride his bike past the New Bern Police Department between 7:00 and 8:00 a.m. Defendant was wearing a bright green basketball outfit. At approximately 9:30 a.m. that morning, Mr. Eddie Mayo was on the porch of the Salvation Army Church in New Bern when he observed defendant rummaging through boxes of donated clothing. Mr. Mayo had arrived at the church parking lot in a black Chevrolet Tahoe with his wife, Mrs. Montine Mayo. At the time Mr. Mayo observed defendant, defendant was within three or four feet of the Tahoe. Mr. Mayo testified that defendant was wearing a lime green basketball uniform and that defendant left the area on a bike.
Mr. and Mrs. Mayo attended the church service at 11:00 a.m. When Mr. Mayo returned to the Tahoe after the service, around noon, he noticed that the front passenger side window was shattered. Mrs. Mayo had left her pocketbook in the vehicle, and the pocketbook was now missing. Mrs. Mayo's pocketbook contained several credit cards, including a Bank of America Visa card. This card had Mrs. Mayo's picture on it and had never been activated. Mrs. Mayo testified that she used the card for identification only.
Earlier that morning, defendant went to the home of Mr. Ernest Tripp. Mr. Tripp testified that defendant arrived at his house at about 9:00 a.m. and was wearing a lime green basketball suit. Defendant asked Mr. Tripp if he could borrow a spark plug, and Mr. Tripp agreed. Defendant returned to Mr. Tripp's home at approximately 11:00 a.m. the same day. Defendant asked for a ride to the store. Mr. Tripp drove to the Handy Mart, where defendant attempted to pay for gas at the pump with a credit card. Defendant walked into the store and told the cashier, Ms. Kellee German, that his card was not working and that he wanted to pre-pay for gas. Defendant handed a credit card to Ms. German. Mr. Tripp identified State's Exhibit Number 2, Mrs. Mayo's Bank of America card, as the card that defendant tried to use at the Handy Mart.
When Ms. German inquired about why the picture on the card was not of defendant, defendant stated that the card belonged to hiswife. Ms. German permitted defendant to use the card as a debit card. However, defendant was unable to enter the personal identification number (PIN) to complete the transaction. Defendant and Mr. Tripp left the Handy Mart without having purchased anything. Ms. German called Bank of America to report the attempted use of a stolen credit card. She identified the State's exhibit of Mrs. Montine's Bank of America card as the card that defendant had tried to use to make a purchase.
When Mr. Tripp returned to his house later that day, he found a brown paper bag in his garage containing Mrs. Mayo's pocketbook and credit cards. Mr. Tripp removed the Bank of America card from the bag and placed it inside his house. The New Bern Police Department later recovered the pocketbook and credit cards during their investigation. Defendant offered no evidence at trial.
Defendant contends that the trial court erred in denying his motion to dismiss the habitual felon indictment. Defendant argues that the Habitual Felons Act violates the double jeopardy clause and his rights of equal protection and due process. His argument must fail, as our Supreme Court has held that the Habitual Felons Act is constitutional. See State v. Todd, 313 N.C. 110, 117-18, 326 S.E.2d 249, 253 (1985). Defendant acknowledges the line of cases recognizing this proposition, see, e.g., State v. Brown, 146 N.C. App. 299, 301, 552 S.E.2d 234, 235 (2001); State v. Wilson, 139 N.C. App. 544, 550, 533 S.E.2d 865, 870 (2000); State v. Hairston, 137 N.C. App. 352, 354, 528 S.E.2d 29, 31 (2000), butasks this Court to overrule or modify these cases. Defendant cites no authority in support of his argument. Although we could deem this assignment of error abandoned, see N.C.R. App. P. 28(b)(6), we hold that it is without merit. The procedures set forth in the Habitual Felons Act, N.C. Gen. Stat. § 14-7.1 et seq., have been held to comply with a defendant's constitutional rights.
Defendant assigns error to the trial court's denial of his motion to dismiss the charges for insufficiency of the evidence. Defendant's assignment of error states:
2. The Court erred in failing to dismiss the charges against defendant at the close of all the evidence (defendant did not offer any evidence) for insufficiency of the evidence to sustain a conviction. All of the evidence presented was not sufficient to convince a rational trier of facts to find each element of each crime charged beyond a reasonable doubt.
Defendant's assignment of error broadly encompasses three separate legal issues, i.e., the sufficiency of the evidence for three separate offenses. This assignment of error is in violation of Rule 10 of our Rules of Appellate Procedure. See N.C.R. App. P. 10(c)(1) (). Nonetheless, we will exercise our discretionary authority pursuant to Rule 2 to consider defendant's arguments. "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." State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). The evidence is viewed in the light most favorable to the State, with every reasonable inference drawn in favor of the State. Id. at 99, 261 S.E.2d at 117. Any contradictions in the evidence must be resolved by the jury. Id. First, defendant contends that the State did not offer sufficient evidence that defendant was the perpetrator of the breaking and entering into the Mayo's vehicle. Defendant points out that there was no direct evidence that he broke into the vehicle. However, the State need only present evidence that defendant was in possession of goods recently stolen from the vehicle.
In State v. Durham, 74 N.C. App. 201, 328 S.E.2d 304 (1985), the defendant challenged the evidence supporting a charge of breaking and entering a motor vehicle. The State's evidence showed that a set of golf clubs was stolen from the victim's motor vehicle between 8:00 a.m. and noon, and that the defendant pawned the golf clubs at noon that same day at a local pawn shop. Id. at 202, 328 S.E.2d at 305. No evidence placed the defendant at the scene of the breaking and entering. However, the State's evidence established that the time interval between the theft and the defendant's pawning of the golf clubs was no more than four hours. Id. at 203-04, 328 S.E.2d at 306. This Court held that the doctrine of possession of recently stolen goods applied to these facts, permitting the jury to infer the defendant's commission of the breaking and entering. Id.
Here, the circumstantial evidence of defendant being the perpetrator of the breaking or entering included the following: Mr. Mayo testified that he observed defendant within three or four feet of the Mayo's Tahoe parked in the church lot around 9:30 a.m. on 11 August 2002. This evidence places defendant at the scene of the crime, a factor absent from the evidence in Durham. Also, the State presented evidence that defendant attempted to purchase gas at the Handy Mart using the Bank of America card with Mrs. Mayo's picture on it. This attempted purchase occurred in the late morning of 11 August 2002, within a few hours of when defendant was observed in the area of the Mayo's Tahoe. Mr. and Mrs. Mayo discovered the theft upon return to their vehicle at around noon that day. These facts are sufficient to support a reasonable inference that defendant was the perpetrator of the breaking and entering.
Next, defendant contends that the State did not present sufficient evidence on the charge of defendant's attempt to obtain merchandise from the Handy Mart by false pretenses. Specifically, defendant asserts that the State failed to establish the essential element that the victim was actually deceived by defendant. This Court has previously addressed the very same argument, see State v. Wilburn, 57 N.C. App. 40, 46, 290 S.E.2d 782, 786 (1982), and held that actual deception is not an element of an attempt to obtain property by false pretenses.
Defendant assigns error to the failure of the court to dismiss the case against him for insufficiency of the evidence. He first contends that since the State failed to present evidence of the essential element, that Andrews was actually deceived by any alleged misrepresentation of the defendant, there was insufficient evidence for the jury to find him guilty of attempting to obtain property by false pretenses. Defendant is incorrect in his belief that this is an essential element of an attempt to obtain property by false pretenses.
Id. (emphasis added) (citing State v. Cronin, 299 N.C. 229, 262 S.E.2d 277 (1980)). Defendant does not address the holding in Wilburn in his brief, but instead cites to authority...
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