State v. Skipper, No. COA09-161 (N.C. App. 11/3/2009)
| Decision Date | 03 November 2009 |
| Docket Number | No. COA09-161.,COA09-161. |
| Parties | STATE OF NORTH CAROLINA v. LAWRENCE WILLARD SKIPPER. |
| Court | North Carolina Court of Appeals |
Kimberly P. Hoppin, for defendant-appellant.
Lawrence Willard Skipper ("defendant") appeals a judgment entered upon a jury verdict finding him guilty of felonious breaking or entering, felonious larceny, felonious possession of stolen goods, and attaining the status of an habitual felon. We find no error in part, vacate in part, and remand for resentencing.
On 6 October 2004 at 8:30 p.m., Shelby Blanchard ("Mrs. Blanchard") and her husband locked the doors of New Hope Baptist Church ("New Hope") after services. Mrs. Blanchard returned to clean the church the next day, 7 October 2004, between 10:00 and 11:00 a.m. When she entered the church, she noticed the pastor's office door, which was always locked, was open, the whole side of the wall was damaged, and a color television ("TV") and other items were missing. Prior to this incident, there had been another break-in at the church. As a precaution, Mrs. Blanchard and a relative, Lora Ann Blanchard ("Ms. Blanchard"), took an inventory of the church property. As part of this inventory, they photographed the TV and recorded its serial number.
Detective Lawrence Thomas Dixon ("Detective Dixon") in the Criminal Investigations Division of the Sampson County Sheriff's Department ("SCSD") arrived at the church on 7 October 2004, responding to a report of a breaking and entering and larceny. During Detective Dixon's investigation, he found a tire tool on the ground behind the church which matched the marks on a windowsill and "other parts of the church that were pried open." Mrs. Blanchard provided Detective Dixon a list of items that were missing from the church along with the serial numbers for those items. The list included, inter alia, a 27-inch Symphonic color TV. Detective Dixon entered the serial numbers into a statewide database.
The Duplin County Sheriff's Department went through pawn tickets and found one for a TV with a matching serial number at the Pawn USA shop ("Pawn USA") and contacted the SCSD. Detective Dixon of the SCSD then went to Pawn USA and recovered a 27-inch Symphonic TV with a serial number matching the one from the TV missing from the church. Larone Smith ("Smith"), former Assistant Manager for Pawn USA, identified the pawn ticket for the TV as one used by Pawn USA. The pawn ticket showed that someone pawned a color TV at 10:51 a.m. on 7 October 2004. Smith could not specifically recall seeing defendant enter Pawn USA on 7 October 2004. However, Smith obtained the name, address, and driver's license number listed on the pawn ticket from the identification presented by the person who pawned the TV. It was later determined that defendant's information matched the information listed on the pawn ticket.
Defendant was indicted on charges of felonious breaking and entering, felonious larceny, felonious possession of stolen goods and attaining the status of an habitual felon. The State presented evidence at trial in Sampson County Superior Court. At the close of the State's evidence, defendant moved to dismiss the charges and the trial court denied the motion. At the close of all the evidence, defendant again moved to dismiss all charges, and the trial court also denied that motion. The trial court then instructed the jury on all charges, including an instruction on the doctrine of recent possession. On 19 August 2008, the jury returned verdicts of guilty to felonious breaking and entering, felonious larceny, felonious possession of stolen goods, and attaining the status of an habitual felon. Defendant was sentenced to a minimum term of 125 months to a maximum term of 159 months in the custody of the North Carolina Department of Correction. Defendant appeals.
Defendant contends, and the State conceded, that the indictment for felonious larceny was fatally defective because it failed to allege that New Hope was a legal entity capable of owning property. We agree.
The issue of whether an indictment is fatally defective is reviewable de novo. State v. Marshall, 188 N.C. App. 744, 748, 656 S.E.2d 709, 712 (2008). The issue is automatically reversible even though no objection, exception, or motion has been made at the trial level. Id. at 747-48, 656 S.E.2d at 712. "`An indictment for larceny which fails to allege the ownership of the property either in a natural person or a legal entity capable of owning property is fatally defective.'" State v. Cathey, 162 N.C. App. 350, 352-53, 590 S.E.2d 408, 410 (2004) (quoting State v. Roberts, 14 N.C. App. 648, 649, 188 S.E.2d 610, 611-12 (1972)). In Cathey, this Court found that a larceny indictment against the defendant for taking personal property from the "Faith Temple Church of God" was fatally defective because the indictment did not allege the church was a legal entity capable of owning property. Id. In State v. Patterson, this Court found an indictment which alleged the defendant committed a larceny against the "First Baptist Church of Robbinsville" was fatally defective because the indictment failed to allege the church was a legal entity capable of owning property. ___ N.C. App. ___, ___, 671 S.E.2d 357, 359-61 (2009). "[T]he indictment must show on its face that the church is a legal entity capable of owning property...." Id. at ___, 671 S.E.2d at 361.
In the instant case, the indictment for felonious larceny alleged that the defendant "unlawfully, willfully and feloniously did steal, take and carry away a...27" Symphonic color television...being the personal property of New Hope Baptist Church...." Since the indictment failed to state New Hope was a legal entity capable of owning property, the indictment was fatally defective. Therefore, the judgment for felonious larceny must be vacated and this case must be remanded for resentencing.
Defendant argues the trial court erred in entering judgment against the defendant for both felonious larceny of and felonious possession of the same goods. Since the defendant's conviction for felonious larceny has been vacated, this issue is moot.
Defendant next contends the trial court erred in denying his motion to dismiss the charges of felonious breaking and entering, felonious larceny, and felonious possession of stolen goods because there was insufficient evidence to support a conviction. We disagree. As an initial matter, since we have vacated defendant's conviction for felonious larceny, we need not address defendant's argument as to whether there was insufficient evidence to support a conviction for that charge.
When considering a defendant's motion to dismiss, the State must present substantial evidence of every element of the offense charged and substantial evidence the defendant is the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). "[T]he trial court must consider all evidence...in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor." State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994). "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). "[I]f a reasonable juror could draw an inference of defendant's guilt from the evidence before him, the evidence is sufficient to allow the jury to consider the issue even if the same evidence may also support an equally reasonable inference of the defendant's innocence." State v. Turner, 168 N.C. App. 152, 155, 607 S.E.2d 19, 22 (2005). "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).
To prove felonious possession of stolen goods, the State must present substantial evidence that defendant: (1) had 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 was stolen pursuant to a breaking or entering, and (4) the possessor acting with a dishonest purpose. State v. Southards, 189 N.C. App. 152, 156, 657 S.E.2d 419, 421 (2008); N.C. Gen. Stat. § 14-71.1 (2007).
To prove felonious breaking or entering, the State must present substantial evidence of: (1) the breaking or entering, (2) of any building, (3) with the intent to commit any felony or larceny therein. N.C. Gen. Stat. § 14-54(a) (2007); State v. Jones, 188 N.C. App. 562, 564-65, 655 S.E.2d 915, 917 (2008).
In the instant case, the State presented no direct evidence that defendant broke into New Hope or that defendant was ever in actual possession of the stolen TV. However, the State presented substantial circumstantial evidence to support defendant's convictions under the doctrine of recent possession.
"[W]hen there is sufficient evidence that a building has been broken into and goods taken therefrom, the doctrine [of recent possession] raises a presumption from one's possession of such goods recently after the breaking and entering that such person broke and entered the building." State v. Williamson, 74 N.C. App. 114, 116, 327 S.E.2d 319, 320 (1985). The doctrine of recent possession also applies to a charge of felonious possession of stolen property. State v. McQueen, 165 N.C. App. 454, 461-62, 598 S.E.2d 672, 677-78 (2004); State v. Friend, 164 N.C. App. 430, 4383-9, 596 S.E.2d 275, 282 (2004). The presumption raised...
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