State v. Dobie

• Court: Court of Appeals of North Carolina
• Decided: August 5, 2014
• Docket: 13-1143
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1143 NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County Nos. 12 CRS 14674 DWIGHT VERNON DOBIE, 12 CRS 14676 Defendant

Appeal by defendant from judgment entered 6 February 2013

by Judge W. Robert Bell in Mecklenburg County Superior Court.

Heard in the Court of Appeals 5 March 2014.

Attorney General Roy Cooper, by Associate Attorney General Laura Askins, for the State.

Don Willey for defendant-appellant.

GEER, Judge.

Defendant Dwight Vernon Dobie appeals from a judgment

entered on his conviction of felony larceny of a motor vehicle

and being a habitual felon. On appeal, defendant primarily

argues that the trial court erred in denying his motion to

dismiss because the State's evidence of the value of the stolen

vehicle was inadmissible, and the State did not otherwise

present sufficient evidence of the value of the stolen vehicle -2- to support his felony larceny conviction. Because, however, the

State presented evidence that the stolen motor vehicle was a

2007 BMW and also provided the jury with photographs of the BMW

showing its condition, a reasonable juror could find that the

value of the BMW was greater than $1,000.00. Since defendant

does not contest any other elements of the offense, the trial

court properly denied the motion to dismiss.

Facts

The State's evidence tended to show the following facts.

On the morning of 18 November 2011, Gualberto Portela dropped

his father off at Presbyterian Hospital in Charlotte, North

Carolina for a regular dialysis treatment. Mr. Portela parked

his car, a silver 2007 BMW 525i, at the front entrance to the

hospital, turned the car off, left the keys in it, and helped

his father into the hospital. Mr. Portela was gone less than a

minute, but when he returned outside, his car was missing. Mr.

Portela immediately called the police to report his car as

stolen.

Officer Charles Brown, Jr. of the Charlotte-Mecklenburg

Police Department ("CMPD") was dispatched and arrived at the

hospital shortly after Mr. Portela's report. Based in part on a

conversation with Mr. Portela at the hospital, Officer Brown

filled out and transmitted a police report to CMPD headquarters. -3- In that report, Officer Brown stated that the value of the

stolen BMW was $20,000.00. From hospital surveillance

videotape, Officer Brown was able to determine features and

characteristics of a suspect and issued a "[b]e on the lookout"

("BOLO") statement.

The next day, on 19 November 2011, defendant was at the

hospital visiting his girlfriend. Hospital security apprehended

and detained defendant as a suspect matching the description

issued in the BOLO, and Detective Alan Wolfe of the CMPD was

dispatched to the hospital to further review the hospital's

surveillance videotape and question defendant. When Detective

Wolfe showed defendant surveillance photos taken 18 November of

a person matching defendant's description at the hospital,

defendant admitted to being at the hospital that day.

After a search of defendant's person yielded nothing,

Detective Wolfe released defendant because although he believed

defendant got into the stolen BMW, the detective could not

actually see him doing so because a column was blocking the

camera's view of the car. Nonetheless, a week later, on 25

November 2011, CMPD Officer Gerren Willis stopped defendant

while defendant was driving the stolen BMW and arrested him.

Mr. Portela then recovered the BMW. -4- Defendant was indicted for larceny, possession of a stolen

vehicle, and being a habitual felon. The jury found defendant

guilty of larceny and possession of a stolen vehicle, and the

trial court arrested judgment on the conviction of felony

possession of a stolen vehicle after defendant pled guilty to

being a habitual felon, the trial court sentenced defendant to a

term of 129 to 164 months imprisonment. Defendant timely

appealed to this Court.

I

Defendant first argues that the trial court erred in

denying his motion to dismiss for insufficient evidence.

Defendant acknowledges that he may not have properly preserved

this argument and, therefore, argues, in the alternative, that

his trial counsel provided ineffective assistance of counsel by

failing to timely renew the motion to dismiss for insufficient

evidence. Even assuming, without deciding, that the issue was

properly preserved, we hold that the trial court properly denied

the motion to dismiss.

"The standard of review for a motion to dismiss for

insufficient evidence is well settled. [T]he trial court must

consider the evidence in the light most favorable to the State,

drawing all reasonable inferences in the State's favor. All

evidence, competent or incompetent, must be considered." State -5- v. Bradshaw, 366 N.C. 90, 92-93, 728 S.E.2d 345, 347 (2012)

(internal citation and quotation marks omitted). "When

reviewing a defendant's motion to dismiss a charge [for

insufficient] evidence, this Court determines whether the State

presented substantial evidence in support of each element of the

charged offense." State v. Abshire, 363 N.C. 322, 327-28, 677

S.E.2d 444, 449 (2009) (internal quotation marks omitted).

"'Substantial evidence is relevant evidence that a reasonable

person might accept as adequate, or would consider necessary to

support a particular conclusion.'" Id. at 328, 677 S.E.2d at

449 (quoting State v. McNeil, 359 N.C. 800, 804, 617 S.E.2d 271,

274 (2005)).

"To convict a defendant of felonious larceny, it must be

shown that he: (1) took the property of another, (2) with a

value of more than $1,000.00, (3) carried it away, (4) without

the owner's consent, and (5) with the intent to deprive the

owner of the property permanently." State v. Owens, 160 N.C.

App. 494, 500, 586 S.E.2d 519, 523–24 (2003); N.C. Gen. Stat. §

14–72(a) (2013). Defendant challenges the evidence supporting

the element requiring "a value of more than $1,000.00." Id.

Defendant contends that the only evidence of the value of

the stolen BMW was Officer Brown's testimony, based on his

police report, that the value of the BMW was $20,000.00. He -6- argues that this evidence was inadmissible because Officer Brown

lacked a proper foundation to make this estimate and that,

consequently, the trial court erred in failing to grant the

motion to dismiss.

Defendant has overlooked the pertinent standard of review,

which requires that "[a]ll evidence, competent or incompetent,

must be considered" in deciding the sufficiency of the evidence

to survive a motion to dismiss. Bradshaw, 366 N.C. at 93, 728

S.E.2d at 347 (emphasis added). Officer Brown's testimony,

admissible or not, is, therefore, sufficient evidence of the

value of the BMW for purposes of the motion to dismiss and,

therefore, the trial court did not err in denying the motion to

dismiss.

However, even if Officer Brown's testimony could not be

considered, the record still contains sufficient evidence that

the BMW was worth more than $1,000.00. "'The State is not

required to produce direct evidence of . . . value to support

the conclusion that the stolen property was worth over

$1,000.00, provided that the jury is not left to speculate as to

the value of the item.'" State v. Rahaman, 202 N.C. App. 36,

47, 688 S.E.2d 58, 66 (quoting State v. Davis, 198 N.C. App.

146, 151-52, 678 S.E.2d 709, 714 (2009)), abrogated on other

grounds in part by State v. Tanner, 364 N.C. 229, 695 S.E.2d 97 -7- (2010). Further, a jury is "free to exercise their own reason,

common sense and knowledge acquired by their observation and

experiences of everyday life." State v. Edmondson, 70 N.C. App.

426, 430, 320 S.E.2d 315, 318 (1984), aff'd, 316 N.C. 187, 340

S.E.2d 110 (1986).

In this case, Officer Brown testified that the vehicle

stolen from Mr. Portela was a silver 2007 BMW 525i. The State

also introduced two photos of Mr. Portela's BMW: one photo

showed a side profile of the BMW and another provided a clear

image of the rear perspective of the car, including the license

plate. Both photos portray a late model BMW sedan that has no

exterior defects. In addition, Mr. Portela testified that these

photos "fairly and accurately represent the condition of [my]

vehicle in November of 2011."

We hold that this evidence was sufficient to allow a

reasonable jury to conclude, based on their own common sense and

knowledge, that the value of the stolen motor vehicle exceeded

$1,000.00. See id. ("After hearing all the evidence, and

viewing photographs that showed extensive damage in the

ransacked offices, the jury found that the damage done to the

personal property exceeded $200. While there may not have been

any precise evidence as to the amount of these damages the jury

was free to exercise their own reason, common sense and -8- knowledge acquired by their observation and experiences of

everyday life.").

II

Defendant next argues that the trial court committed plain

error in allowing Officer Brown to testify from his police

report that the value of the stolen BMW was $20,000.00. Our

Supreme Court has explained:

For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice -- that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings[.]

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(internal citations and quotation marks omitted).

We need not decide whether Officer Brown's testimony was

proper lay opinion testimony because defendant has failed to

demonstrate that in the absence of that testimony, the jury

probably would have reached a different verdict. Significantly,

defendant did not make any attempt to show that the BMW had a

value of no more than $1,000.00 when it was stolen. Without

some evidence suggestive of a lower value, we believe that it is -9- improbable that a juror would have concluded that a three-year-

old BMW with no visible exterior defects and which was in

working mechanical condition when defendant absconded with and

was later pulled over while driving it, was worth no more than

$1,000.00. Accordingly, we hold that defendant has failed to

show that the admission of Officer Brown's testimony was plain

error. See, e.g.,

State v. Dallas, 205 N.C. App. 216, 221-22, 695 S.E.2d 474, 478

(2010) (holding that defendant failed to show admission of

testimony regarding value of stolen property was sufficiently

prejudicial when State presented other evidence that property

was worth more than $1,000.00).

III

Finally, defendant contends that the trial court erred in

failing to instruct the jury on the lesser offense of

misdemeanor larceny because "there was no competent evidence

submitted by the State of the value of the motor vehicle" when

it was stolen. Defendant argues that it was, therefore, within

the jury's province to decide whether or not the value of the

BMW was $1,000.00 or less. We disagree.

"The sole factor determining the judge's obligation to give

[a lesser included offense instruction] is the presence, or

absence, of any evidence in the record which might convince a -10- rational trier of fact to convict the defendant of a less

grievous offense." State v. Wright, 304 N.C. 349, 351, 283

S.E.2d 502, 503 (1981). "Mere contention that the jury might

accept the State's evidence in part and might reject it in part

will not suffice[,]" State v. Hicks, 241 N.C. 156, 160, 84

S.E.2d 545, 547 (1954), and "'the trial court need not submit

lesser included degrees of a crime to the jury when the State's

evidence is positive as to each and every element of the crime

charged and there is no conflicting evidence relating to any

element of the charged crime[,]'" State v. Millsaps, 356 N.C.

556, 562, 572 S.E.2d 767, 772 (2002) (quoting State v. Thomas,

325 N.C. 583, 594, 386 S.E.2d 555, 561 (1989)).

Because it was improbable that the jury would have

concluded the value of the BMW was no more than $1,000.00 even

absent Officer Brown's testimony, and since defendant did not

otherwise challenge or contradict the State's evidence that was

relevant to the value of the BMW, defendant's argument amounts

to a mere contention that the jury might have rejected the

State's evidence of the value of the stolen BMW. Defendant has

pointed to no evidence suggesting that the BMW in fact had a

value of $1,000.00 or less. Consequently, the trial court did

not err in refusing to instruct the jury on the lesser included

offense of misdemeanor larceny. See State v. Haney, 28 N.C. -11- App. 222, 223, 220 S.E.2d 371, 372 (1975) ("There was no

evidence that the value of the stolen motorcycle was less than

[the minimum value for felony larceny] and it was therefore, not

prejudicial error to fail to instruct the jury on misdemeanor

larceny.").

No error.

Judges ROBERT C. HUNTER and McCULLOUGH concur.

Report per Rule 30(e).