State v. Rook
| Citation | 2022 NCCOA 482 |
| Decision Date | 05 July 2022 |
| Docket Number | COA21-587 |
| Parties | STATE OF NORTH CAROLINA v. JACKIE LYNN ROOK, JR., Defendant |
| Court | Court of Appeal of North Carolina (US) |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Heard in the Court of Appeals 6 April 2022
Appeal by Defendant from judgments entered 26 April 2021, 6 August 2021, and 10 September 2021 by Judge Keith O. Gregory in Johnston County Nos. 19 CRS 742, 52508, 52754 Superior Court.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Jonathan R. Marx, for the State.
Mary McCullers Reece for the Defendant.
¶ 1 Defendant appeals from judgments entered upon his convictions for breaking and entering, larceny after breaking and entering, felony conspiracy to commit breaking and entering, obtaining property by false pretenses, and having attained the status of habitual felon.
I. Background
¶ 2 Defendant was charged with several crimes in connection with a break-in of a residence. The evidence at trial tended to show the following: On 23 January 2019, Ms. Sheppard and her son ("J.G.") were away from their home in Selma. That day, two handymen were repairing a pipe at their home but left briefly to purchase supplies at a home improvement store. During this time, the Sheppards' front door was unsecured due to a loose doorknob. When the handymen returned, they observed a red Honda Pilot parked in the Sheppards' driveway. The handymen recognized the passenger and driver as Jackie Rook, Jr. ("Defendant") and Defendant's father,[1]respectively. The handymen knew Defendant and his father because they were also tenants of the Sheppards' landlord.
¶ 3 The handymen asked Defendant and his father why they were at the Sheppard's property. Defendant and his father replied that they were looking at an air conditioner on the property for use as scrap metal. The air conditioner was located in a trailer about five hundred yards away from the Sheppards' home. Defendant and his father then left the Sheppards' property.
¶ 4 When the Sheppards returned, the handymen informed them that Defendant and his father were present at their property unsupervised. J.G. noted that his PlayStation video game console, controllers, and video games were missing. The Sheppards reported the theft to law enforcement and provided the PlayStation's serial number. J.G. also noticed that someone had logged into his PlayStation account a few days after the theft. Law enforcement discovered that someone using an email address containing "JackieRook85" had logged into the stolen PlayStation three days after the theft from an IP address assigned to Jackie Rook.[2]
¶ 5 Several months after the theft, Defendant sold the PlayStation and video games to a third-party purchaser, who then resold the PlayStation to a GameStop store. In a video provided to the third-party purchaser to prove that the PlayStation was operational, Defendant and his wife are visible. Law enforcement seized the PlayStation from GameStop by tracking its serial number. Police officers subsequently arrested Defendant at his home for the theft of the PlayStation. Defendant tried to run away when police officers first arrived at his home.
¶ 6 Defendant was indicted for breaking and entering, larceny after breaking and entering, felony conspiracy to commit breaking and entering, obtaining property by false pretenses and having attained the status of habitual felon. Defendant pleaded guilty to having attained the status of habitual felon. A jury found Defendant guilty of all substantive offenses. After the trial court sentenced Defendant, he timely appealed to our Court. II. Analysis A. Motion to Dismiss Breaking and Entering and Larceny Charges
¶ 7 Defendant argues that the trial court erred in denying his motion to dismiss the charges of (1) breaking and entering and (2) larceny after breaking and entering, based on the insufficiency of evidence that he was the perpetrator. We disagree.
¶ 8 We review the denial of a motion to dismiss de novo. State v. Webb, 258 N.C.App. 361, 364, 812 S.E.2d 182, 185 (2018). State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781 (2002). In making this determination, the trial court considers the evidence in the light most favorable to the State. State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994).
¶ 9 The elements of breaking and/or entering are: "(1) the breaking or entering (2) of any building (3) with the intent to commit any felony or larceny therein." Webb, 258 N.C.App. at 365, 812 S.E.2d at 186. Larceny is: "the felonious taking by trespass and carrying away by any person of the goods or personal property of another, without the latter's consent and with the felonious intent permanently to deprive the owner of his property and convert it to the taker's own use." State v. McCrary, 263 N.C. 490, 492, 139 S.E.2d 739, 740 (1965) (emphasis in original).
¶ 10 Defendant argues in part that the jury was not entitled to assume that he was the perpetrator of the larceny because the evidence showing his possession of the stolen items did not show that he had possession near the time of the theft. The doctrine of recent possession is the rule 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). Further, "when 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. at 674, 273 S.E.2d at 293 (emphasis added).
¶ 11 Whether an inference is permitted concerning the amount of time between a theft and evidence of possession depends on the type of property involved. State v. Hamlet, 316 N.C. 41, 43-44, 340 S.E.2d 418, 420 (1986). "[I]f the stolen property is of a type normally and frequently traded in lawful channels, a relatively brief time interval between the theft and the finding of an accused in possession is sufficient to preclude an inference of guilt from arising." Id. at 44, 340 S.E.2d at 420. There is no bright-line rule on the amount of time deemed too long to support an inference of recent possession. See id. at 45, 340 S.E.2d at 421.
¶ 12 Here, the trial court properly determined that (1) there was substantial evidence of each essential element of the crimes of larceny and breaking and entering, and (2) Defendant was the perpetrator. Defendant and his father had access to the Sheppard's home and were observed at the property by the handymen. The excuse provided to the handymen did not support their being in the Sheppards' driveway. Most importantly, evidence showed that Defendant (or his father) was in possession of the PlayStation three days after the theft, and again, several months later when the property was sold to a third-party. Defendant's possession was evidenced by the PlayStation being used by an IP address registered to Defendant's home and email address and his direct sale to the third party. The passage of time between the theft and evidence of Defendant's possession was not too stale for the jury to infer that Defendant was in wrongful possession of stolen property.
¶ 13 There was substantial evidence of each essential element of these crimes and that Defendant was the perpetrator (directly or through a conspiratorial agreement). Therefore, we conclude that the trial court did not err in denying Defendant's motion to dismiss the charges of larceny and breaking and entering.
B. Motion to Dismiss Conspiracy Charge
¶ 14 Defendant also argues that the trial court erred in denying his motion to dismiss the charge of conspiracy to commit breaking and entering because the evidence was insufficient to submit this charge to the jury. We disagree, examining this issue under the same standard set out in Section II(A) above.
¶ 15 "A criminal conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means." State v. Abernathy, 295 N.C. 147, 164, 244 S.E.2d 373, 384 (1978). It is not necessary that the parties agree expressly; "rather, a mutual, implied understanding is sufficient, so far as the combination or conspiracy is concerned, to constitute the offense." Id. at 164, 244 S.E.2d at 384.
¶ 16 Here, when considered in the light most favorable to the State, there was substantial evidence of the crime of conspiracy between Defendant and his father: Defendant's father drove the red Honda Pilot with Defendant as a passenger. The jury could infer that Defendant's father lied to the handymen about the reason for their presence at the Sheppards' home. While the handymen did not observe Defendant or his father take property from the Sheppards' home, the jury could reasonably infer from the circumstances that the parties had an implied understanding of larceny as a common goal. Therefore, the trial court did not err in denying Defendant's motion to dismiss the charge of conspiracy to commit breaking and entering.
C. Motion for Mistrial
¶ 17 Defendant also argues that the...
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