An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NO. COA13-1197 NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
STATE OF NORTH CAROLINA
v. Pitt County No. 12CRS000156 DARRYL WAYNE DANIELS Defendant
Appeal by Defendant from judgment entered 26 February 2013
by Judge Quentin T. Sumner in Pitt County Superior Court. Heard
in the Court of Appeals on 20 March 2014.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Charles G. Whitehead, for the State.
Michael J. Reece, for Defendant-appellant.
DILLON, Judge.
Darryl Wayne Daniels (“Defendant”) appeals from a
conviction for possession of stolen goods. For the following
reasons, we find no error in Defendant’s trial and remand for
correction of a clerical error.
I. Background -2- On or about 23 January 2012, Defendant was indicted on one
count of felonious possession of stolen goods. Defendant was
tried on this charge at the 18 February 2013 Criminal Session of
Pitt County Superior Court. The State’s evidence tended to show
that on 16 November 2011, Joseph Vick broke into the residence
of Mr. Linwood Baker and stole approximately $200,000 in cash,
coins, and some pistols. Justin Page was an accomplice to Mr.
Vick in the theft. Mr. Baker had hidden the money in a closet,
packaged in twenty bank envelopes, holding approximately $10,000
each.1 As soon as he discovered the theft, Mr. Baker contacted
police.
Mr. Vick and Mr. Page split the money evenly, each
receiving ten envelopes or approximately, $100,000. Several
days later, Mr. Vick was arrested. He initially lied to the
police, stating that he only stole $100,000 from Mr. Baker and
kept $80,000, giving only $20,000 to Mr. Page. Mr. Vick
explained that he told this lie in hopes that Mr. Page would not
get caught with the other $100,000 and he could get some share
of it when he got out of jail. Ultimately, however, Mr. Vick
confessed to the police that the amount he had stolen was
1 Mr. Baker explained at trial that he had inherited approximately $251,000 in a certificate of deposit when his mother died in 2009. -3- $200,000. At trial, Mr. Vick and Mr. Baker consistently
testified that they had stolen $200,000 from Mr. Baker,
splitting the money evenly. As to his share, Mr. Page testified
he spent $10,000 on drugs and hid the remaining $90,000 inside a
shed on his neighbor’s property.
Eventually, Mr. Page was arrested on 21 November 2011 for
his involvement in the theft. Mr. Page’s bond was set at
$500,000, and he called Defendant, a bail bondsman, from the
Pitt County Detention Center. Over a series of phone calls,
Defendant and Mr. Page discussed the circumstances surrounding
Mr. Page’s charges and bail. In explaining his charges, Mr.
Page told Defendant that he went to get a haircut and a guy that
rode with him to the barbershop broke into a man’s house and
because he did not turn that individual in to police “[t]hey
charged me with everything they charged him with[.]”
Defendant told Mr. Page that it would take $40,000 for him
to get out on bond. Mr. Page offered Defendant $35,000 cash.
Mr. Page explained that he wanted Defendant to come and get him
out of jail and he would show him where the cash was hidden.
Defendant refused, explaining that he would need the money
before he agreed to bond Mr. Page out of jail. Defendant
explained to Mr. Page that he should wait until the next day and -4- get his bond reduced for only $2,500. Mr. Page explained to
Defendant that he wanted to get out that day, so he could go to
the methadone clinic and not go through drug withdrawal
symptoms. Mr. Page then explained in detail to Defendant the
location of the hidden money in a shed behind his neighbor’s
house. Defendant asked if the money was on someone else’s
property and Mr. Page confirmed that it was but his neighbors
were on vacation. Defendant told Mr. Page that was “a serious
theft” and “breaking and entering” but Mr. Page explained that
it was in an open trailer shed, with no door. After the second
call, Mr. Page further explained where to find the money and
Defendant agreed to go. Defendant again asked Mr. Page if there
was anyone at his neighbor’s house and Mr. Page reassured him
that there was no one there and he would not have hidden the
money there if they were. Mr. Page told Defendant that he had
hidden in the shed nine envelopes, with $10,000 in each
envelope, and for Defendant to get four of those envelopes and
bail him out of jail. During the last phone call, Defendant
talked to Mr. Page, who directed him to the location of the shed
where the money was hid in. Defendant commented to Mr. Page
that he was “just uncomfortable, man” and “this is like—this is
like me trespassing on somebody else’s property” but Mr. Page -5- reassured him that, “I’m giving you permission, man.” After
indicating that he had found something, Defendant told Mr. Page
that he would be calling the jail to bail him out. Defendant
did not speak to Mr. Page again that night. Cell phone mapping
records showed that around 9:30 p.m. on the night in question
Defendant’s cell phone was in the area of the neighbor’s shed.
The next day, on 22 November 2011, Detective Charles
Mitchell, with the Pitt County Sheriff’s Department, one of the
investigators in the theft at Mr. Baker’s house, received a call
from attorney Earl Brown regarding Mr. Page. Detective Mitchell
told Mr. Brown that only $20,000 was needed to make Mr. Baker
whole and if the money was returned then Mr. Page’s bond could
be reduced. Mr. Brown then met with Mr. Page at the jail and
told him of this fact. Mr. Page told Mr. Brown to speak with
Defendant as “[h]e knew where all the money was.” About an hour
later, Mr. Brown delivered to Detective Mitchell two envelopes
containing approximately, $10,000 each. Mr. Page’s bond was
reduced; Defendant posted bond for Mr. Page and he was released.
Prior to his release, Mr. Page did not speak with Defendant and
did not pay Defendant his premium for posting his bail.
The next day, on 23 November 2011, after he had got home,
Mr. Page checked his neighbor’s shed and discovered that all of -6- the $90,000 that he had hidden was gone. Mr. Page’s electronic
monitoring device, received as part of his release from jail,
confirmed that he went to his neighbor’s barn that morning. Mr.
Page immediately called Mr. Brown explaining the situation and
told him that Defendant was the “only person that knew where”
the money was hidden and “[n]obody else took it.” Mr. Page also
called Defendant but Defendant told Mr. Page that he did not go
to the barn that night.
The same day, detectives from the Pitt County Sheriff’s
Department came to Mr. Page’s home. When police had agreed to
release Mr. Page, they believed that only $100,000 had been
stolen from Mr. Baker in the break-in based on Mr. Vick’s
statements. However, after listening to the phone calls between
Mr. Page and Defendant, they believed that Mr. Page had received
$100,000, as his share of the theft. Detectives searched the
shed but did not find any money. Mr. Page told detectives that
his share of the theft was $100,000 but explained how he had
told Defendant where the money was located to make his bond to
get out of jail and now the money was gone. Mr. Page testified
that he had not told anyone but Defendant where he hid the
money. A week after Mr. Page met with detectives, Defendant
came to his home and demanded $2,500 for the bond premium and -7- Mr. Page paid him. At the close of the State’s evidence,
Defendant raised a motion to dismiss based on insufficiency of
the evidence and his motion was denied by the trial court.
Defendant put forth the following evidence at trial:
Terrance Smith, Defendant’s business partner in his bail
bondsman business, testified that on the evening of 21 November
2011, he received a three-way call from Defendant and wrote down
some directions while Defendant talked to Mr. Page on the phone.
Defendant wanted to go and see if there was $35,000 in a shed
and use that money to bail Mr. Page out of jail. Mr. Smith
drove Defendant to the location of the shed, based on the
directions he had written down. Upon arriving, they both got
out of the truck; and Mr. Smith went into the shed and retrieved
two envelopes which he saw on the ground. The next day,
Defendant called Mr. Smith and told him to take the money to
Attorney Earl Brown, as they were working on a bail reduction
for Mr. Page.
Attorney Earl Brown, testified that at some point on 22
November 2011, he received a voice message from Defendant saying
that Mr. Page desired his services to seek a reduction in his
bond. Mr. Brown called Detective Mitchell, the charging
officer, to ask about the possibility of a bond reduction. He -8- was told that $20,000 was needed to make the victim whole. Mr.
Brown then met with Mr. Page at the jail and told him that he
needed to produce the $20,000 that belonged to the victim to
reduce his bond. After some reluctance, Mr. Page hired Mr.
Brown for the limited-purpose of bond reduction, and instructed
him that Defendant would give him the money. Mr. Brown then
gave Defendant a call regarding the money. Later that day, at
the direction of Defendant, Mr. Smith arrived at Mr. Brown’s
office and delivered a package containing $20,000, which Mr.
Brown promptly took to Detective Mitchell. The next day, Mr.
Brown received a phone call from Mr. Page “ranting” and
complaining that he had been robbed and someone had taken his
money. At the end of the presentation of all the evidence,
Defendant again raised his motion to dismiss, which was denied
by the trial court.
On or about 26 February 2013, a jury found Defendant guilty
of felonious possession of stolen goods. The trial court
sentenced Defendant to a term of 6 to 8 months imprisonment.
The trial court suspended this sentence, ordered Defendant to
serve an active term of 30 days imprisonment, placed Defendant
on 60 months of supervised probation, and ordered Defendant to
pay a total of $72,089.50 in restitution. The trial court also -9- ordered Defendant to surrender his bail bondsmen license.
Defendant gave notice of appeal in open court. On appeal,
Defendant contends that (1) the trial court erred in denying his
motion to dismiss, as the evidence was insufficient to support a
conviction for felony possession of stolen goods; and (2) there
is a clerical error in the judgment that should be remanded for
correction.
II. Sufficiency of the Evidence
Defendant contends that the trial court erred in denying
his motion to dismiss as there was insufficient evidence to show
(1) he knew or had reasonable grounds to believe that the money
hidden in the shed may have been stolen or (2) that he had a
“dishonest purpose” when he took the money from the shed.
The standard of review for a trial court’s denial of a
defendant’s motion to dismiss for insufficiency of the evidence
is well established:
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.
State v. Johnson, 203 N.C. App. 718, 724, 693 S.E.2d 145, 148
(2010) (citations and quotation marks omitted). Additionally, -10- “[t]he 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), disc. review denied, 365 N.C. 544, 720 S.E.2d 393
(2012).
Defendant was convicted of felonious possession of stolen
goods. The essential elements of felonious possession of stolen
goods are: “(1) possession of personal property; (2) having a
value in excess of [$1,000.00]; (3) which has been stolen; (4)
the possessor knowing or having reasonable grounds to believe
the property was stolen; and (5) the possessor acting with a
dishonest purpose.” State v. Martin, 97 N.C. App. 19, 25, 387
S.E.2d 211, 214 (1990); see also N.C. Gen. Stat. §§ 14-71.1,-72
(2011). Defendant challenges whether the State put for
sufficient evidence of elements four and five of this offense.
A. Element Four: Knew or Had Reasonable Grounds to Know
Defendant contends that he did not know or did not have
reasonable grounds to conclude that the money was stolen because
no reasonable person would conclude that someone had $35,000 -11- from a breaking and entering in Pitt County; Mr. Page never told
him that it was stolen; Mr. Page freely discussed the money in
front of third-parties at the jail, while talking with
Defendant; and Mr. Page’s hiding place for the money was no more
unusual than Mr. Baker’s hiding place in an old suitcase.
This Court has stated that “[w]hether the defendant knew or
had reasonable grounds to believe that the [goods] were stolen
must necessarily be proved through inferences drawn from the
evidence.” State v. Brown, 85 N.C. App. 583, 589, 355 S.E.2d
225, 229 (citation omitted), disc. review denied, 320 N.C. 172,
358 S.E.2d 57 (1987). In some cases, convictions for possession
of stolen goods have been upheld “when knowledge was at issue
have contained some evidence of incriminating behavior on the
part of the accused.” State v. Allen, 79 N.C. App. 280, 285,
339 S.E.2d 76, 79, aff’d per curiam, 317 N.C. 329, 344 S.E.2d
789 (1986).
Defendant’s argument overlooks crucial direct and
circumstantial evidence, and the reasonable inferences from that
evidence, put forth by the State. Several of Mr. Page’s
statements to Defendant over the phone should have indicated to
Defendant that the money in the shed was stolen: (1) Mr. Page
told Defendant he was charged and in jail in connection with a -12- possible larceny and/or breaking and entering in a man’s house;
(2) his bond was set at $500,000; (3) he wanted to get out
quickly to go to the methadone clinic; (4) he had recently
hidden a large amount of money, $90,000, in his neighbor’s shed;
(5) he told Defendant he had to trespass on the neighbor’s
property to get the money; (6) he said that he did not want a
friend or relative to retrieve the money for him because he did
not “want them to know nothing about nothing[;]” (7) he wanted
Defendant to use $40,000 of that money to bail him out that
night, rather than staying in jail overnight and potentially
having his bond reduced at his first appearance; (8) he
explained to Defendant that the money was not on his property
because “I don’t want it on my property. You know what I’m
saying[;]” (9) he explained to Defendant that he would not have
hidden the money in the shed unless his neighbors were gone on
vacation; and (10) he told Defendant that the money belonged to
his brother, explaining, “you know what I mean.” It could be
reasonably inferred from this evidence that Mr. Page had
recently been involved in a breaking and entering serious enough
to warrant a bail of $500,000; he was a drug addict but did not
hesitate to pay $35,000 to potentially get out of jail that day;
he had recently hidden a large amount of money on his neighbor’s -13- property because he did not want it in his immediate possession
and did not want his neighbors or family to know about it; he
encouraged Defendant to trespass on the neighbor’s property to
retrieve the money for his bail; and he gave an inconsistent
story about the ownership of the money saying first that it was
his money then it was his brother’s money. See State v.
Haskins, 60 N.C. App. 199, 201-02, 298 S.E.2d 188, 189-90 (1982)
(in finding that the defendant had or reasonably should have had
knowledge regarding the stolen nature of the guns, the Court
noted the defendant’s inconsistent stories on how he obtained
the guns).
Defendant’s own statements regarding his apprehension to
retrieve the money from the shed show that he was aware that the
retrieval of this money involved some “incriminating behavior”
on the part of Mr. Page. See Allen, 79 N.C. App. at 285, 339
S.E.2d at 79. See also State v. Weakley, 176 N.C. App. 642,
652, 627 S.E.2d 315, 322 (2006) (concluding that the
circumstantial evidence tended to show that the defendant knew
or should have known the goods were stolen after considering a
witness’s and the defendant’s incriminating statements regarding
the circumstance and nature of the stolen goods). When viewed
in the light most favorable to the State, Defendant’s own -14- statements and his conversations with Mr. Page and the
reasonable inferences therefrom, show that Defendant knew or
reasonably should have known that the money he retrieved had
been stolen by Mr. Page. See Martin, 97 N.C. App. at 25, 387
S.E.2d at 214.
B. Element Five: Dishonest Purpose
Defendant contends that there was no evidence of a
dishonest purpose in him taking the money because as soon as he
learned that it was stolen he turned it in to authorities.
“[W]hether someone is acting with a dishonest purpose is a
question of intent.” Brown, 85 N.C. App. at 586, 355 S.E.2d at
228. Additionally,
the “dishonest purpose” element of the crime of possession of stolen property can be met by a showing that the possessor acted with an intent to aid the thief, receiver, or possessor of stolen property. The fact that the defendant does not intend to profit personally by his action is immaterial. It is sufficient if he intends to assist another wrongdoer in permanently depriving the true owner of his property.
State v. Parker, 316 N.C. 295, 305-06, 341 S.E.2d 555, 561
(1986).
Contrary to Defendant’s contentions, the direct and
circumstantial evidence, and reasonable inferences from that
evidence, put forth by the State were sufficient to show that -15- Defendant took possession of the stolen money with a dishonest
purpose. As noted above, there was substantial evidence put
forth by the State to show that Defendant knew or reasonably
should have known that the money was stolen. Circumstantial
evidence put forward by the State showed that Defendant went to
the shed at Mr. Page’s direction; got the stolen $90,000 from
the shed; and turned at least part of the money, $20,000 over to
authorities, so that Mr. Page, the person that originally
assisted in stealing the money, could make bail; and kept the
remaining stolen money, $70,000. Whether it was $90,000,
$70,000, or the $20,000 turned over to Detective Mitchell, the
evidence shows that Defendant intended to keep or use this money
to the detriment of its true owner, Mr. Baker. As evidence
showed that Defendant acted with a dishonest purpose in keeping
stolen money, and, at least by aiding Mr. Page, the person
responsible for the theft, in posting bail, this would be
sufficient under Parker, to show that his intent was “to assist
another wrongdoer in permanently depriving the true owner of his
property.” 316 N.C. at 305-06, 341 S.E.2d at 561.
Defendant further argues that under the State’s theory that
if Defendant had a dishonest purpose in turning the money over
for a bail reduction “a person who found money, learned it was -16- stolen, turned it in and received a reward would be guilty of
possession of stolen goods since by receiving the reward they
received a benefit.” Defendant’s hypothetical in support of his
argument is based only on his arguments at trial, and the
evidence he put forward, and views the evidence in the light
most favorable to Defendant; and, therefore, this argument has
no merit in our analysis where we are to view the evidence in
the light most favorable to the State.
In sum, the evidence, when viewed in the light most
favorable to the State, see Phillpott, ___ N.C. App. at ___, 713
S.E.2d at 209, showed that the State put for sufficient evidence
to establish these elements of felonious possession of stolen
goods. We hold that the trial court properly denied Defendant’s
motions to dismiss. See Johnson, 203 N.C. App. at 724, 693
S.E.2d at 148.2
III. Clerical Error
Both Defendant and the State point us to a possible
clerical error in the judgment regarding the term of Defendant’s
probation. N.C. Gen. Stat. § 15A-1343.2(d)(4)(2011) states that
2 Because we find sufficient evidence of each contested element of felonious possession of stolen goods, we need not address Defendant’s argument that the State also did not provide sufficient evidence to show that the goods were stolen pursuant to felonious breaking and entering. -17- “[u]nless the court makes specific findings that longer or
shorter periods of probation are necessary[,]” a defendant
convicted of a felony and sentenced to intermediate punishment
should receive a term of probation no greater than 36 months.
This statute goes on to state that “[i]f the court finds at the
time of sentencing that a longer period of probation is
necessary, that period may not exceed a maximum of five
years[.]” N.C. Gen. Stat. § 15A-1343.2(d). Here, in determining
that Defendant’s probationary term would be for five years, the
trial court found “that the extent of the probation is due
directly to rehabilitation of the Defendant.” On the written
judgment, however, while Defendant’s term of probation is
indicated to be for 60 months, the Court failed to indicate that
its finding that a longer period of probation was necessary
pursuant to N.C. Gen. Stat. § 15A-1343.2(d), as it had found in
open court. Both Defendant and the State say this discrepancy
amounts to a clerical error in the judgment, and we agree. See
State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696-97
(2008) (stating that “[w]hen, on appeal, a clerical error is
discovered in the trial court’s judgment or order, it is
appropriate to remand the case to the trial court for correction -18- because of the importance that the record speak the truth”). As
such, we remand for correction of the clerical error. See id.
For the foregoing reasons, we find no error in Defendant’s
trial and remand for correction of a clerical error.
NO ERROR; REMAND FOR CORRECTION OF A CLERICAL ERROR.
Judge STROUD and Judge HUNTER, JR. concur.
Report per Rule 30(e).