State v. McQueen

• Decision Date: 20 July 2004
• Docket Number: No. COA03-1251.,COA03-1251.
• Citation: 598 S.E.2d 672,165 NC App. 454
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. David Michael McQUEEN.

598 S.E.2d 672

165 NC App. 454

STATE of North Carolina v. David Michael McQUEEN.

No. COA03-1251.

Court of Appeals of North Carolina.

July 20, 2004.

Attorney General Roy Cooper, by Assistant Attorney General J. Douglas Hill, for the State.

William D. Spence Kinston, for defendant appellant.

WYNN, Judge.

Defendant David Michael McQueen appeals from judgment of the trial court entered upon a jury verdict finding him guilty of felonious possession of stolen goods, and upon his plea of no contest to habitual felon status. Defendant argues the trial court erred in denying his motions for a mistrial and to dismiss the charges against him. Defendant further contends the trial court improperly sentenced him for felonious possession of stolen goods and habitual felon status. For the reasons hereafter stated, we find no error by the trial court.

The State presented evidence at trial tending to show the following: Alfred Mott testified he owned a storage shed located on Mott Town Road in Atkinson, North Carolina, in which he stored an electric generator. Mott described his machine as a 5200-watt "blue generator" with a distinguishing scratch under the carburetor. Mott stated he had paid $900.00 for the generator, and that it was two years old. In the late afternoon of 29 September 2001, Mott observed Defendant walking by as he worked with the generator. At approximately 6:00 p.m., Mott finished his work, placed the machine inside his storage shed, and locked the front door. The storage shed, however, also contained double doors which did not lock, but were secured only by a board. Mott testified that "anybody [who] went in my shed ... would [have known] that's the way I lock [ ] it."

When Mott returned to his storage shed the following morning, the electric generator was gone. The front door to the storage shed remained locked, but the double doors were not fully closed. He noticed automobile tracks approximately 120 feet away from the storage shed, but observed no markings on the ground to indicate the generator had been dragged. Mott testified that "it seemed like to me that [whoever broke into the storage shed] had to know what they [were] doing, because they didn't tear my door down." Mott further explained he was "puzzled in my mind how in the world one man can pick that big generator up and tote it that far, and all I could do was to move it."

Defense counsel cross-examined Mott extensively regarding his cousin, Jerome Mott, who lived approximately two miles away from where the storage shed was located. Mott confirmed that Jerome was familiar with his storage shed and the method by which Mott secured the double doors. Mott denied having suspected Jerome of being involved in the disappearance of the generator, but testified that Jerome was acquainted with "people who receive stolen goods."

After he discovered the generator missing, Mott summoned the sheriff's department, which located the generator several days later with the assistance of Noel Brooks. Brooks testified that Defendant came to his residence in the early morning hours of 30 September 2001 with an electric generator. Defendant asked Brooks to loan him one hundred dollars for one week and offered the generator as collateral for the loan. Defendant told Brooks the generator belonged to him, and that he needed the money in order to have his automobile repaired. Brooks loaned Defendant the money and took the generator in exchange. Brooks suspected, however, that the generator was possibly stolen and contacted a friend at the sheriff's department a few days later. Mott identified the generator given to Brooks by Defendant as the same generator taken from his storage shed.

Doris Jacobs Herring testified on behalf of Defendant. Herring stated she and Defendant were installing carpet at their residence the evening of 29 September 2001, and that Defendant did not leave the house during that time. At 8:00 a.m. the following morning, Herring observed Jerome Mott approach Defendant while he was standing outside the residence and state, "I want to see you." Herring agreed that it was "unusual for [Jerome] to be there that early in the morning." Herring shut the door of the residence and did not observe any further interaction between Defendant and Jerome. Defendant told Herring he was going to work and left the residence soon afterwards. Herring never saw Defendant with a generator.

Defendant was indicted on charges of felonious breaking or entering, felonious larceny, felonious possession of stolen property, and habitual felon status. Upon conclusion of the evidence, the jury found Defendant not guilty of felonious breaking or entering, but guilty of felonious larceny and felonious possession of stolen goods. Defendant then entered a plea of no contest to habitual felon status. The trial court arrested judgment on the felonious larceny conviction and sentenced Defendant to an active minimum term of imprisonment of eighty months, with a maximum term of 105 months. Defendant appealed.

Defendant presents four assignments of error on appeal, arguing the trial court erred by (1) denying Defendant's motion for a mistrial; (2) denying Defendant's motion to dismiss the charges against him; (3) sentencing Defendant for felonious possession of stolen goods; and (4) sentencing Defendant for habitual felon status. We find no error by the trial court.

By his first assignment of error, Defendant argues the trial court erred in denying his motion for a mistrial after Mott testified that he "learned that [Defendant] was in prison." Defendant correctly notes that such evidence was inadmissible, and he contends Mott's statement substantially and irreparably prejudiced his case in the minds of the jurors. In light of such prejudice, Defendant argues the trial court erred in failing to declare a mistrial, thereby entitling him to a new trial. We do not agree.

The trial court must declare a mistrial upon the defendant's motion "if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case." N.C. Gen.Stat. § 15A-1061 (2003). The decision to grant or deny the defendant's motion for a mistrial is discretionary, and such a decision "is to be given great deference because the trial court is in the best position to determine whether the degree of influence on the jury was irreparable." State v. Hill, 347 N.C. 275, 297, 493 S.E.2d 264, 276 (1997),cert. denied, 523 U.S. 1142, 118 S.Ct. 1850, 140 L.Ed.2d 1099 (1998). A mistrial should be declared only if there are serious improprieties making it impossible to reach a fair and impartial verdict. State v. McCarver, 341 N.C. 364, 383, 462 S.E.2d 25, 35-36 (1995),cert. denied, 517 U.S. 1110, 116 S.Ct. 1332, 134 L.Ed.2d 482 (1996). "When a court withdraws incompetent evidence and instructs the jury not to consider it, any prejudice is ordinarily cured." State v. Walker, 319 N.C. 651, 655, 356 S.E.2d 344, 346 (1987). Absent circumstances indicating otherwise, jurors are presumed to follow a trial court's instructions. McCarver, 341 N.C. at 384,462 S.E.2d at 36.

In the instant case, the trial court immediately sustained Defendant's objection to the inadmissible evidence and granted his motion to strike. The trial court then instructed the jury that Mott's statement was "inappropriate [and] inadmissible," and stated that "you are not to consider in any way his statement when you adjudicate the facts in the case." In light of the trial court's curative instruction, we conclude the trial court did not abuse its discretion in denying Defendant's motion for a mistrial. State v. Morgan, ___ N.C.App. ___, 595 S.E.2d 804, 808 (2004).

Defendant next argues the trial court erred in denying his motion to dismiss the charge of felonious possession of stolen goods at the close of the State's evidence and again at the close of all the evidence. Defendant contends the State presented insufficient evidence that he knew or had reasonable grounds to believe that the generator he possessed had been stolen pursuant to a breaking and entering.

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." State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). 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). 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. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). The test for sufficiency of the evidence is the same regardless of whether the evidence is circumstantial or direct. State v. Earnhardt, 307 N.C. 62, 68, 296 S.E.2d 649, 653 (1982). We must therefore determine whether there was substantial evidence to support the essential elements of felonious possession of stolen property.

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. See N.C. Gen.Stat. §§...