State v. Cannon

721 S.E.2d 691, 216 N.C. App. 507, 2011 N.C. App. LEXIS 2292
CourtCourt of Appeals of North Carolina
DecidedNovember 1, 2011
DocketNo. COA11-327
StatusPublished
Cited by1 cases

This text of 721 S.E.2d 691 (State v. Cannon) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cannon, 721 S.E.2d 691, 216 N.C. App. 507, 2011 N.C. App. LEXIS 2292 (N.C. Ct. App. 2011).

Opinion

STROUD, Judge.

Paul Jason Cannon (“defendant”) appeals from his convictions for felony possession of stolen goods and possession of a firearm by [508]*508a convicted felon. For the following reasons, we vacate defendant’s conviction for felony possession of stolen goods and find no prejudicial error as to defendant’s sentencing on the charge of possession of a firearm by a felon.

I. Background

On 2 February 2010, defendant was indicted for felony possession of stolen goods, five counts of communicating threats, carrying a concealed weapon, resisting a public officer, injury to personal property, and possession of a firearm by a felon. Defendant was tried on these charges during the 20 September 2010 Criminal Session of Superior Court, Martin County. The State’s evidence presented at trial tended to show the following: Zeb Winslow, Jr. testified that on the morning of 14 July 2009 he discovered that his 1995 Chevrolet pick-up truck and his 2002 Suzuki four-wheeler had been stolen from his premises. Mr. Winslow reported the theft to the Halifax County Sheriff’s Department.

On the evening of 26 September 2009, Hillary Eugene Reed, defendant’s first cousin, and a group of six or seven of his family members and friends were sitting on Mr. Reed’s back deck around 11 p.m., “drinking a couple of beers[,]” after returning from riding four-wheelers. Shortly thereafter, defendant was observed doing “doughnuts” or circles on a four-wheeler in the road in front of Mr. Reed’s residence. Defendant then drove the four-wheeler on to Mr. Reed’s property and walked up on the back deck with the others. Defendant began drinking beer and whiskey and then got in an argument with and wanted to fight Mr. Reed’s son, Jason Reed. Before anything happened, Mr. Reed told defendant to leave the premises. Defendant left on the four-wheeler but subsequently returned for his jacket that he had left on the deck. However, defendant again started an argument with and wanted to fight Jason Reed. Mr. Reed again told defendant he had to leave and walked him back to the four-wheeler. Defendant got onto the four-wheeler and showed Mr. Reed a nine-millimeter pistol in his waistband, implying that he was going to shoot Jason Reed. Mr. Reed asked defendant what kind of gun it was and whether he could see it. While defendant was holding the gun in the palm of his hand, Mr. Reed was able to “snatch” the gun from defendant and handed it to another family member who ejected the bullet that was in the chamber and removed the magazine; other family members took the gun inside Mr. Reed’s house to keep it away from defendant. Defendant began accusing them of stealing his gun and telling them [509]*509to call 911. After someone called 911, defendant got back on the four-wheeler and said that he was going to go back to his house to get his rifle and come back and kill all of them. At that point, Mr. Reed and another family member took defendant off of the four-wheeler and held him on the ground for about an hour until a deputy sheriff arrived. Defendant was subsequently taken into custody and arrested by Deputy Wesley Cratt of the Martin County Sheriffs Department. Deputy Cratt had the four-wheeler towed and later investigation revealed that it was stolen in Halifax County and matched the serial number for Mr. Winslow’s stolen four-wheeler.

Mr. Winslow further testified that even though the truck was discovered the same day, he did not hear anything about his four-wheeler until September 2009 when he received a call that a four-wheeler matching the serial number of the four-wheeler that had been stolen had been recovered. Upon viewing the recovered four-wheeler, Mr. Winslow noted that the decals and stickers had been removed and someone had affixed an “old Honda decal with Honda Motor Sports” on the front. However, he confirmed that the serial number on this four-wheeler matched the number on the bill of sale for his stolen four-wheeler. He also noted that the serial number had not been altered in any way. Mr. Winslow further testified that he estimated the “cost” of the four-wheeler to be around $4,800 to $5,000. He also testified that he did not know defendant but knew “of him” and he did not give defendant permission to take his four-wheeler. He further stated that the key was in the four-wheeler’s ignition when it was stolen and was still in the ignition when it was recovered.

At the close of the State’s evidence, defendant made a motion to dismiss all of the charges. The trial court consolidated the five communicating threat charges into two separate charges; granted defendant’s motion as to the charge of resisting a public officer; and denied defendant’s motion as to charges of injury to personal property, second-degree trespass, possession of stolen goods, possession of a firearm by a convicted felon, and carrying a concealed weapon. Defendant did not present any evidence at trial but renewed his motion to dismiss, which was denied by the trial court.

On 23 September 2010, the jury found defendant guilty of felony possession of stolen goods, carrying a concealed weapon, willful and wanton injury to personal property, second-degree trespass, and possession of a firearm by a convicted felon; the jury acquitted defendant of the two charges of communicating threats. Defense counsel stipulated to defendant’s prior convictions and the trial court found that [510]*510defendant was at prior record level “V” based on 16 prior record points from the prior convictions listed on the prior record level worksheet. The trial court consolidated the injury to personal property, carrying a concealed weapon, and second-degree trespass convictions and sentenced defendant to a term of 97 days imprisonment; a consecutive term of 21 to 26 months imprisonment for the possession of a firearm by a convicted felon conviction; and a consecutive term of 12 to 15 months imprisonment for the possession of stolen goods conviction. Defendant gave notice of appeal in open court. On appeal defendant challenges his conviction for felony possession of stolen goods, arguing that the trial court erred in denying his motion to dismiss for insufficiency of the evidence, and his conviction for possession of a firearm by a convicted felon, arguing that the trial court erred in calculating his prior record level.

II. Motion to Dismiss

Defendant argues that the trial court erred in denying his motion to dismiss as to the charge of felony possession of stolen goods, as the State failed “to produce substantial evidence that [(1) defendant] knew or had reasonable grounds to believe” that the four-wheeler was stolen or (2) that the four-wheeler’s value at the time of the theft was greater than $1,000.00.

The standard of review for a motion to dismiss is well known. A defendant’s motion to dismiss should be denied if there is substantial evidence of: (1) each essential element of the offense charged, and (2) of defendant’s being the perpetrator of the charged offense. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. The Court must consider the evidence in the light most favorable to the State and the State is entitled to every reasonable inference to be drawn from that evidence. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.

State v. Phillpott, _ N.C. App._, _, 713 S.E.2d 202, 209 (2011) (citation omitted).

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Bluebook (online)
721 S.E.2d 691, 216 N.C. App. 507, 2011 N.C. App. LEXIS 2292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cannon-ncctapp-2011.