State v. Capps

• Court: Court of Appeals of North Carolina
• Decided: April 2, 2025
• Docket: 24-653
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-653

Filed 2 April 2025

McDowell County, No. 22CRS050728

STATE OF NORTH CAROLINA

v.

RICKY KEITH CAPPS

Appeal by defendant from judgment entered 13 September 2023 by Judge J.

Thomas Davis in McDowell County Superior Court. Heard in the Court of Appeals 29

January 2025.

Attorney General Jeff Jackson, by Special Deputy Attorney General Mary W. Scruggs, for the State.

Lockamy Law Firm, by C. Scott Holmes, for defendant-appellant.

ZACHARY, Judge.

Defendant Ricky Keith Capps appeals from the trial court’s judgment entered

upon a jury’s verdict finding him guilty of felonious possession of stolen goods. After

careful review, we conclude that Defendant received a fair trial, free from error.

I. Background

Gina Monte left her home in Nebo on 24 November 2021 to spend Thanksgiving

out of town. When she returned on 29 November, the Jayco Jay Series pop-up camper

that had been parked in her driveway was no longer there. Monte called the police to STATE V. CAPPS

Opinion of the Court

report that her camper had been stolen.

On 7 December 2021, law enforcement officers who were responding to a fire

on Defendant’s property discovered the stolen camper there. At trial, Detective Burlin

Ballew of the McDowell County Sheriff’s Office described the property as a “fielded

area” of “maybe a hundred yards in length” in front of “what used to be [Defendant’s]

residence there that had burned previously.” In that field, which one officer described

as an “impromptu campground,” “there were a few campers, a tent” and “a shack type

thing sort of structure.”

Robert “Speedy” Jaynes resided in the field on Defendant’s property and was

present when officers discovered the stolen camper. Speedy produced a bill of sale to

officers indicating that he had purchased the camper from Paul Poteat on 25

November. Speedy also gave officers permission to photograph the camper’s exterior

and interior. The camper appeared to have been modified to serve as a stationary

residence: additional vinyl siding, wooden pallets, and a tarp were attached, and

several blocks were wedged under the tires to keep the camper level. The camper also

had been spray-painted a different color scheme. Nevertheless, the camper was

identified as Monte’s by its model number and serial number.

Meanwhile, on the same day that the camper was discovered, Monte reported

to Detective Ballew that she had received a letter from an anonymous source who

claimed to have “a bit of information that [she] might be interested in.” Detective

Ballew called the phone number provided in the anonymous letter, and the ensuing

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conversation led him to believe that he needed to interview Defendant regarding the

camper.

Detective Ballew interviewed Speedy on 15 December. The next day, Detective

Ballew and a colleague interviewed Defendant and another suspect, Daniel Thrall, at

Defendant’s property. Defendant acknowledged that he knew at that point that the

camper had been stolen, and that it had been on his property when he returned home

following his release from jail on 25 November. According to Defendant, it was his

understanding that John Daniels “got the camper for [Defendant]” and brought it to

Defendant’s property “because of money [Daniels] owed” to Defendant. Defendant

also told Detective Ballew that “he didn’t know where [the camper] came from and he

didn’t choose to ask.” After speaking with Thrall and Defendant, Detective Ballew

left the property believing that the camper “had been sold to Speedy” on Defendant’s

behalf.

On 6 March 2023, a McDowell County grand jury indicted Defendant for one

count of felonious possession of stolen goods. Defendant’s case came on for trial in

McDowell County Superior Court on 12 September 2023.

Defendant moved to dismiss the charge at the close of the State’s evidence,

arguing “that no reasonable juror could find that [he] ever knowingly possessed any

stolen property.” The trial court denied the motion. Defendant opted not to present

evidence but renewed his motion to dismiss at the close of all evidence, which the trial

court again denied.

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On 13 September 2023, the jury returned its verdict finding Defendant guilty

of felonious possession of stolen goods. The court sentenced Defendant to a term of 9

to 20 months’ imprisonment in the custody of the North Carolina Department of

Adult Correction. Defendant gave notice of appeal in open court.

II. Discussion

Defendant argues that the trial court erred by excluding as inadmissible

hearsay certain testimony that he sought to elicit while cross-examining Detective

Ballew. Defendant also contends that the trial court erred by denying his motion to

dismiss because the State presented insufficient evidence that he possessed the

camper discovered on his property. We disagree.

A. Hearsay

We first address Defendant’s hearsay argument. Defendant claims that “[t]he

trial court erred by excluding [as hearsay] the answer to the question about whether

Daniels, the person who stole the camper, lied to [Defendant] about it.” However,

Defendant failed to preserve this argument for appellate review because he made no

offer of proof as to the substance of the excluded testimony.

“In order for a party to preserve for appellate review the exclusion of evidence,

the significance of the excluded evidence must be made to appear in the record and a

specific offer of proof is required unless the significance of the evidence is obvious

from the record.” State v. Raines, 362 N.C. 1, 20, 653 S.E.2d 126, 138 (2007) (citation

omitted), cert. denied, 557 U.S. 934, 174 L. Ed. 2d 601 (2009). Further, our Supreme

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Court has “held that the essential content or substance of the witness’[s] testimony

must be shown before we can ascertain whether prejudicial error occurred.” Id.

(citation omitted). “Absent an adequate offer of proof, we can only speculate as to

what a witness’s testimony might have been.” State v. Ramirez, 293 N.C. App. 757,

761, 901 S.E.2d 256, 259 (2024) (citation omitted).

In the case at bar, defense counsel asked Detective Ballew: Defendant “told

you that John [Daniels] had lied to him, did he not?” The State objected on hearsay

grounds and the trial court sustained the objection. Rather than providing an offer of

proof of Detective Ballew’s answer to the question for the record, defense counsel

finished the cross-examination by stating: “Those are my questions.” “By failing to

make an offer of proof, [D]efendant has failed to properly preserve this issue for

appellate review . . . .” State v. Hardy, 353 N.C. 122, 134, 540 S.E.2d 334, 344 (2000),

cert. denied, 534 U.S. 840, 151 L. Ed. 2d 56 (2001).

Defendant nevertheless posits that this argument is preserved because “the

offer of proof was in the leading question – which contained the answer.” Defendant

supports this contention with a citation to a nonprecedential opinion of this Court.

See State v. Everett, 178 N.C. App. 44, 55, 630 S.E.2d 703, 710 (2006) (“An offer of

proof is not necessary to preserve an issue for appellate review if the substance of the

excluded testimony is apparent from the context within which the question was

asked.”), aff’d and ordered not precedential, 361 N.C. 217, 639 S.E.2d 442 (2007).

Moreover, Everett has not subsequently been cited for this proposition in any binding

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opinion of our appellate courts.

But even assuming, arguendo, that Everett is mandatory authority, it still

would not support Defendant’s argument. It is manifest that “the essential content

or substance of [Detective Ballew’s] testimony must be shown before we can ascertain

whether prejudicial error occurred.” Raines, 362 N.C. at 20, 653 S.E.2d at 138

(citation omitted). Here, Defendant fails to show the essential content or substance

of Detective Ballew’s excluded testimony; all that appears in the record is defense

counsel’s unanswered leading question. As the State notes, “it is quite possible that

[Detective Ballew] would have said that Defendant did not tell him that Mr. Daniels

had lied to him or that the unsubstantiated ‘lie’ had nothing to do with any relevant

subject matter.” Accordingly, even under the rule from Everett, if it were to apply,

“the substance of the excluded testimony is [not] apparent from the context within

which [defense counsel’s] question was asked.” 178 N.C. App. at 55, 630 S.E.2d at

710. “It is well established that an exception to the exclusion of evidence cannot be

sustained where the record fails to show what the witness’[s] testimony would have

been had he been permitted to testify.” State v. Simpson, 314 N.C. 359, 370, 334

S.E.2d 53, 60 (1985).

Without an offer of proof as to Detective Ballew’s answer to defense counsel’s

unanswered leading question, there is no evidence in the record to support

Defendant’s claim that Daniels lied to Defendant about the camper. Further, the

State emphasizes that the evidence in the record “shows that Defendant did not ask

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who owned the camper and did not want to know, not that he was lied to about the

ownership of it.” This further underscores the futility and impropriety of any attempt

to review this issue on appeal.

“Absent an adequate offer of proof, we can only speculate as to what [Detective

Ballew]’s testimony might have been.” Ramirez, 293 N.C. App. at 761, 901 S.E.2d at

259 (citation omitted). “We cannot engage in speculation as to how Detective [Ballew]

would have answered the question, and Defendant’s argument is thus dismissed.” Id.

B. Motion to Dismiss

Defendant further argues on appeal that the trial court erred by denying his

motion to dismiss for insufficient evidence the charge of felonious possession of stolen

goods.

1. Standard of Review

When ruling on a motion to dismiss, “the trial court need determine only

whether there is substantial evidence of each essential element of the crime and that

the defendant is the perpetrator. Substantial evidence is that amount of relevant

evidence necessary to persuade a rational juror to accept a conclusion.” State v.

Chekanow, 370 N.C. 488, 492, 809 S.E.2d 546, 549 (2018) (cleaned up). “In making

its determination, the trial court must consider all evidence admitted, whether

competent or incompetent, in the light most favorable to the State, giving the State

the benefit of every reasonable inference and resolving any contradictions in its

favor.” Id. at 492, 809 S.E.2d at 549–50 (citation omitted).

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“The trial court is concerned only with the sufficiency of the evidence to take

the case to the jury and not with its weight, and the test of the sufficiency of the

evidence to withstand the motion is the same whether the evidence is direct,

circumstantial[,] or both.” Id. at 492, 809 S.E.2d at 550 (cleaned up). “Circumstantial

evidence may withstand a motion to dismiss and support a conviction even when the

evidence does not rule out every hypothesis of innocence.” Id. (citation omitted).

“Once the court decides that a reasonable inference of [the] defendant’s guilt

may be drawn from the circumstances, then it is for the jury to decide whether the

facts satisfy the jury beyond a reasonable doubt that the defendant is actually guilty.”

Id. (cleaned up). “But if the evidence is sufficient only to raise a suspicion or

conjecture as to either the commission of the offense or the identity of the defendant

as the perpetrator, the motion to dismiss must be allowed.” Id. (cleaned up). “Whether

the State presented substantial evidence of each essential element of the offense is a

question of law”; consequently, an appellate court “review[s] the denial of a motion to

dismiss de novo.” Id. (citation omitted).

2. Analysis

Defendant alleges that there was insufficient evidence that he possessed the

camper because “Daniels stole the camper and sold it to Speedy with[out] [Defendant]

ever having dominion or control,” and therefore, the State failed to show that he had

actual or constructive possession of the camper.

“The essential elements of felonious possession of stolen property are: (1)

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possession of personal property; (2) valued at greater than $1,000.00; (3) which has

been stolen; (4) with the possessor knowing or having reasonable grounds to believe

the property was stolen; and (5) with the possessor acting with dishonesty.” State v.

Privette, 218 N.C. App. 459, 471, 721 S.E.2d 299, 309 (cleaned up), disc. review denied,

365 N.C. 566, 724 S.E.2d 532 (2012). The only element at issue in this appeal is the

first—whether Defendant had possession of the stolen camper.

“Possession may be either actual or constructive.” Id. (cleaned up). Here, the

State makes no argument concerning actual possession; rather, the State maintains

that Defendant had constructive possession of the stolen camper.

“Constructive possession exists when the defendant, while not having actual

possession of the goods[,] has the intent and capability to maintain control and

dominion over them.” Id. (cleaned up). “When contraband is found on the premises

under the control of an accused, this fact, in and of itself, gives rise to an inference of

knowledge and possession which may be sufficient to carry the case to the jury on a

charge of unlawful possession.” Chekanow, 370 N.C. at 493, 809 S.E.2d at 550

(cleaned up). But “[w]here the defendant’s possession is nonexclusive, constructive

possession may not be inferred in the absence of other incriminating circumstances.”

Privette, 218 N.C. App. at 471, 721 S.E.2d at 309 (cleaned up).

“In determining whether sufficient incriminating circumstances exist to

support a finding of constructive possession,” our courts consider the following factors

identified by our Supreme Court:

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(1) the defendant’s ownership and occupation of the property . . . ; (2) the defendant’s proximity to the contraband; (3) indicia of the defendant’s control over the place where the contraband is found; (4) the defendant’s suspicious behavior at or near the time of the contraband’s discovery; and (5) other evidence found in the defendant’s possession that links the defendant to the contraband.

Chekanow, 370 N.C. at 496, 809 S.E.2d at 552. “Evidence of conduct by the defendant

indicating knowledge of contraband . . . is also sufficient to permit a jury to find

constructive possession.” State v. Rice, 252 N.C. App. 480, 484, 798 S.E.2d 432, 435

(2017) (cleaned up).

“Our determination of whether the State presented sufficient evidence of

incriminating circumstances depends on the totality of the circumstances in each

case. No single factor controls, but ordinarily the questions will be for the jury.” Id.

(citation omitted). Additionally, “ownership of the premises on which the contraband

is found is strong evidence of control, and thus, should be considered as a weighty

factor in the analysis.” Chekanow, 370 N.C. at 497, 809 S.E.2d at 552–53 (cleaned

up).

Here, Defendant asserts that “the evidence tended to show that the camper

changed hands but was never possessed by” him, and hence he claims that “[t]he

court convicted [him] of possessing the camper simply because it was located on his

property.” To the contrary, the trial court properly denied his motion to dismiss

because there was sufficient evidence that he constructively possessed the camper to

submit the question of his guilt to the jury.

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First, Detective Ballew testified that Defendant “knew [the camper] was

stolen” by the time that Detective Ballew interviewed him. The State thus produced

evidence “indicating [Defendant’s] knowledge of contraband” on his property, which

we have held is “sufficient to permit a jury to find constructive possession.” Rice, 252

N.C. App. at 484, 798 S.E.2d at 435 (cleaned up).

The State also presented further evidence of incriminating circumstances.

Detective Ballew testified that Defendant “didn’t know where [the camper] came from

and he didn’t choose to ask.” As our Supreme Court has recognized, “a defendant’s

suspicious behavior in conjunction with the discovery of the contraband” may be

considered an incriminating circumstance. Chekanow, 370 N.C. at 498, 809 S.E.2d at

554. Additionally, Defendant saw the camper on his property beginning on 25

November; his continuing “proximity to the contraband” is properly considered an

incriminating circumstance. See id. at 497, 809 S.E.2d at 553 (recognizing that a

defendant’s prior presence “in the place where the contraband was found

approximately two days later” may constitute an incriminating circumstance).

Finally, Defendant’s “ownership of the premises on which the [camper wa]s found is

strong evidence of control, and thus, should be considered as a weighty factor in the

analysis.” Id. at 497, 809 S.E.2d at 552–53 (cleaned up).

Upon careful review of the totality of the circumstances, it is readily apparent

that “the State presented sufficient evidence of incriminating circumstances” for the

trial court to submit the question of Defendant’s guilt to the jury. Rice, 252 N.C. App.

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at 484, 798 S.E.2d at 435 (citation omitted). Accordingly, the court did not err by

denying Defendant’s motion to dismiss.

III. Conclusion

For the foregoing reasons, Defendant received a fair trial, free from error.

NO ERROR.

Chief Judge DILLON and Judge STROUD concur.

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