State v. Foster

560 S.E.2d 848, 149 N.C. App. 206, 2002 N.C. App. LEXIS 129
CourtCourt of Appeals of North Carolina
DecidedMarch 5, 2002
DocketNo. COA01-594
StatusPublished
Cited by5 cases

This text of 560 S.E.2d 848 (State v. Foster) 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. Foster, 560 S.E.2d 848, 149 N.C. App. 206, 2002 N.C. App. LEXIS 129 (N.C. Ct. App. 2002).

Opinion

TYSON, Judge.

I. Facts

On 10 December 1999, Charles Wilkie (“Wilkie”) closed up Jake’s Driving Range, his place of employment. The next morning, 11 December 1999, Wilkie returned to work and observed the garage door standing open and windows in the garage door broken. Wilkie called Mike Justice (“Justice”), the owner of the driving range. Justice came to the driving range and called the sheriff’s department. A John Deere riding mower, Lawn Boy push mower, truck tires and rims, a four-wheeler, an eight foot trailer, a pressure washer, and a welder had been stolen.

In the early morning hours on 11 December 1999, Charles Randall Foster (“defendant”) was found in the driver’s seat of a white truck containing a set of tires and rims, and a Lawn Boy push mower. Officer Larry Pearson noticed the truck sitting in the parking lot of Hill’s Body Shop. Officer Johnny Duncan responded as back up. The officers asked defendant why they were sitting in the parking lot of a closed business. Defendant and two passengers were not detained.

Defendant was eventually charged with felonious breaking and entering, felonious larceny, and felonious possession of stolen goods. Defendant did not testify or offer evidence at trial. The jury found defendant guilty of all charges.

[208]*208Defendant was sentenced to a minimum of 116 months and maximum of 149 months for felonious breaking and entering. Defendant was also sentenced to a minimum of 116 months and maximum of 149 months for felonious larceny and possession of stolen goods, to run consecutively. Defendant appeals. We find no error.

II. Issues

The issues presented are whether: (1) the sentence imposed by the trial court is in excess of that allowed by law and is not supported by competent evidence, (2) the trial court erred in its instruction to the jury on the doctrine of recent possession, and (3) the trial court erred in admitting hearsay statements.

Defendant’s assignment of error regarding the submission of felonious larceny on the basis that there was no competent evidence that the value exceeded $1,000 was not argued in his brief and is abandoned. N.C.R. App. P. 28 (b)(5) (1999). Defendant also argues in his brief that the trial court erred in denying his motion to dismiss at the close of all the evidence. Defendant did not raise this as an assignment of error in the record on appeal. Accordingly, this question is not before us for review. N.C.R. App. P. 10(a) (1999).

III. Sentencing

Defendant first argues that the sentence is in excess of that allowed under the law. First, defendant contends that the sentence exceeds the maximum aggravated range for a class C, level III felony listed in N.C.G.S. § 15A-1340.17 (c) without any finding of aggravating or mitigating factors. Second, defendant argues that the departure from the presumptive range is not supported by competent evidence and written findings. These arguments are without merit.

Here, the trial court did not find any aggravating or mitigating factors and did not make any written findings. N.C.G.S. § 15A-1340.17 provides the punishment limits for each class of offense and prior record level. N.C.G.S. § 15A-1340.17(c)(2) expressly states that the ranges listed are minimum durations:

(2) A presumptive range of minimum durations, if the sentence of imprisonment is neither aggravated or mitigated; any minimum term of imprisonment in that range is permitted unless the court finds pursuant to G.S. 15A-1340.16 that an aggravated or mitigated sentence is appropriate.

N.C. Gen. Stat. § 15A-1340.17(c)(2) (1999).

[209]*209The trial court, within its discretion, imposed the minimum sentence of 116 months found within the presumptive range. State v. Parker, 143 N.C. App. 680, 685-86, 550 S.E.2d 174, 177 (2001) (citing State v. Caldwell, 125 N.C. App. 161, 162, 479 S.E.2d 282, 283 (1997)). N.C.G.S. § 15A-1340.17(e) lists the corresponding maximum term for each minimum term found in section c. The trial court properly imposed the corresponding maximum term of imprisonment of 149 months. See N.C. Gen. Stat. § 15A-1340.17(e) (1999). The trial court is not required to make written findings when sentencing within the presumptive range. See N.C. Gen. Stat. § 15A-1340.16(c) (1999); State v. Brown, 146 N.C. App. 590, 594, 553 S.E.2d 428, 431 (2001). This assignment of error is rejected.

IV. Jury Instruction

Defendant contends that the trial court erroneously instructed the jury under the doctrine of recent possession when it failed to instruct that the goods must be found in defendant’s possession “to the exclusion of others.”

The doctrine of recent possession of stolen property “allows the jury to presume that the possessor of stolen property is guilty of larceny.” State v. Callahan, 83 N.C. App. 323, 325, 350 S.E.2d 128, 130 (1986) (citing State v. Williamson, 74 N.C. App. 114, 327 S.E.2d 319 (1985)). The State is required to prove: “(1) the property described in the indictment was stolen; (2) the stolen goods were found in defendant’s custody and subject to his control and disposition to the exclusion of others . . . and (3) the possession was discovered recently after the larceny . . . .” State v. Maines, 301 N.C. 669, 674, 273 S.E.2d 289, 293 (1981).

Exclusive possession does not necessarily mean sole possession. Exclusive possession means possession “to the exclusion of all persons not party to the crime.” Id. at 675, 273 S.E.2d at 294. The evidence here tends to meet that test. Defendant and the two other passengers in the truck were all a party to the crime. The evidence does not suggest that anyone other than defendant or the other passengers possessed or controlled the tires, rims, and Lawn Boy seen in the back of the truck defendant was driving.

The trial court properly instructed the jury that for the doctrine of recent possession to apply, the State must prove: (1) that the property was stolen, (2) that defendant had possession of the property and that “a person possess property when he is aware of its presence and [210]*210has either by himself, or together with others both the power and intent to control its disposition or use,” and (3) that defendant had possession of the property soon after it was stolen, “under such circumstances as to make it unlikely that he obtained possession honestly.” Defendant does not argue that the evidence did not support an instruction to the jury on the doctrine of recent possession. Defendant’s request for an additional instruction that he had possession of the stolen property “to the exclusion of others” came after the jury charge and was properly denied. See State v. Harris, 47 N.C. App. 121, 123, 266 S.E.2d 735

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Cite This Page — Counsel Stack

Bluebook (online)
560 S.E.2d 848, 149 N.C. App. 206, 2002 N.C. App. LEXIS 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-foster-ncctapp-2002.