State v. Lineberger

• Court: Court of Appeals of North Carolina
• Decided: January 7, 2014
• Docket: 13-733
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-733 NORTH CAROLINA COURT OF APPEALS

Filed: 7 January 2014

STATE OF NORTH CAROLINA

v. Catawba County No. 12 CRS 53434 LAMAR RASHAD LINEBERGER

Appeal by defendant from judgment entered 17 January 2013

by Judge Christopher W. Bragg in Catawba County Superior Court.

Heard in the Court of Appeals 20 November 2013.

Attorney General Roy A. Cooper, by Assistant Attorney General Kenneth A. Sack, for the State.

Irving Joyner for defendant-appellant.

McCULLOUGH, Judge.

Defendant Lamar Rashad Lineberger appeals from the trial

court’s denial of his motion to dismiss and argues that the

trial court erred by entering judgment on both his larceny of a

stolen vehicle and possession of the same stolen vehicle

convictions. For the reasons set forth below, we find no error

in part, arrest judgment in part, and remand for resentencing.

I. Background -2- The State’s evidence tended to show that on the morning of

15 May 2012, Tiffany Bolick, a resident of Starbrook Drive in

Newton, North Carolina noticed that some items she had left in

her vehicle were missing and that her “car had been rummaged

through.” On the previous night, Bolick had parked her unlocked

2012 Chevrolet Cruz in the driveway of her home. Bolick

testified that her Garmin GPS system and cell phone were missing

from her vehicle. An iPod touch that had been left in Bolick’s

husband’s unlocked vehicle, a Dodge Ram truck, was also missing.

A few days after reporting the incident to law enforcement,

police contacted Bolick to inform her that they had recovered

her missing GPS system and cell phone.

Tomera Mitchell, a resident of Willow Creek Drive in

Newton, North Carolina, testified that on the morning of 16 or

17 May 2012, she walked out of her home to find her 2007 GMC

Yukon missing. Tomera Mitchell testified that the night before,

she had left her purse and keys to the vehicle in the unlocked

Yukon. Items that were also left inside her missing vehicle

included a Nikon D90 camera, an iPhone 4S, an iPhone Touch, and

a child’s car seat. Ted Mitchell, Tomera’s husband, contacted

the police to report their missing Yukon. -3- Officer Justin Hussey of the Hickory Police Department

testified that on 17 May 2012, he saw a Yukon matching the

description of the Mitchells’ missing Yukon in the 500 block of

3rd Avenue. Officer Hussey observed two occupants in the

vehicle, a black male driver and a white male passenger. The

driver was wearing a black shirt and red ball cap. Officer

Hussey attempted to pursue the vehicle but lost sight of it for

some distance. By the time Officer Hussey was able to observe

the vehicle again, it was parked and a white male whom Officer

Hussey recognized earlier as the passenger of the Yukon was

walking down 3rd Avenue. Officer Hussey stopped the white male,

questioned him, and detained him in his police car.

Officer Hussey went to where the Yukon was parked and did

not see anyone inside or around the vehicle. At this time,

Officer Gregory Beucler of the Hickory Police Department arrived

on the scene. Officer Beucler checked to see that no other

occupants were in the Yukon and then began to search the area

for the driver of the vehicle.

After searching for approximately twenty to thirty minutes

in the area of the 200 block of 5th Street, a woman who resided

at 247 5th Street motioned to Officer Beucler. The woman was

“clearly distraught, scared.” After speaking with the woman, -4- Officer Beucler ran behind her residence and began searching for

the suspect. Officer Beucler observed someone underneath the

porch, in a crawl space attached to the foundation of the

residence. Officer Beucler testified that using his flashlight,

he saw “a hand of what appeared to be a black male under the

crawl space.” Officer Beucler gave commands to step out of the

crawl space and defendant Lamar Rashad Lineberger emerged.

Defendant was wearing a black shirt and had a red baseball cap

tucked in his pants.

Officer Hussey went into the crawl space and recovered keys

to a GMC vehicle on a multi-colored lanyard. Officer Hussey

identified defendant as the same individual who was seen driving

the Yukon earlier.

Tomera and Ted Mitchell identified the Yukon as their

vehicle. Ted Mitchell identified the multi-colored lanyard as

a gift he purchased for his wife and testified that it was

attached to the keys to his stolen Yukon. Some of the items

found inside the Yukon included the following: clothes, cell

phone, GPS system, credit cards, empty wallet, watch, etc.

Defendant did not offer any evidence. -5- On 11 June 2012, defendant was indicted for possession of a

stolen motor vehicle, felonious larceny, and breaking or

entering.

On 17 January 2013, a jury returned verdicts of guilty for

felonious larceny and possession of a stolen vehicle.

Defendant’s offenses were consolidated for judgment and

defendant was sentenced for a term of fifteen (15) to twenty-

seven (27) months incarceration.

Defendant appeals.

II. Standard of Review

We review the trial court’s denial of a motion to dismiss

de novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33

(2007). “When ruling on a defendant’s motion to dismiss, the

trial court must determine whether there is substantial evidence

(1) of each essential element of the offense charged, and (2)

that the defendant is the perpetrator of the offense.” Id.

(citation omitted).

“Substantial evidence is relevant evidence that a

reasonable mind might accept as adequate to support a

conclusion.” State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d

920, 925 (1996) (citation omitted). “[T]he trial court must

view the evidence in the light most favorable to the State, and -6- the State is entitled to every reasonable inference to be drawn

from that evidence.” State v. Barnett, 141 N.C. App. 378, 382,

540 S.E.2d 423, 427 (2000) (citation omitted).

III. Discussion

Defendant presents two issues on appeal: (A) whether the

trial court erred by denying defendant’s motion to dismiss the

charge of felonious larceny and (B) whether the trial court

erred by entering judgments for both felony larceny and

possession of a stolen motor vehicle.

A. Motion to Dismiss

First, defendant argues that the trial court erred by

denying his motion to dismiss the charge of felonious larceny at

the conclusion of the State’s case and at the conclusion of all

the evidence. Specifically, defendant argues that the evidence

was insufficient to show that the stolen vehicle was in his

exclusive possession and that the State improperly used and

relied upon the doctrine of recent possession. Defendant relies

on the holding in State v. Maines, 301 N.C. 669, 273 S.E.2d 289

(1981), for his contentions. Based on the following reasons, we

disagree.

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

shown that he: (1) took the property of another, (2) with a -7- 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) (citation omitted);

N.C. Gen. Stat. § 14-72(a) (2011).

In Maines, our Supreme Court stated that the doctrine of

recent possession “is simply a rule of law that, upon an

indictment of larceny, possession of recently stolen property

raises a presumption of the possessor’s guilt of the larceny of

such property.” Maines, 301 N.C. at 673, 273 S.E.2d at 293

(citation omitted). “When the doctrine of recent possession

applies in a particular case, it suffices to repel a motion for

nonsuit and defendant’s guilt or innocence becomes a jury

question.” Id. at 674, 273 S.E.2d at 293.

[T]he presumption spawned by possession of recently stolen property arises when, and only when, the State shows beyond a reasonable doubt: (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 though not necessarily found in defendant’s hands or on his person so long as he had the power and intent to control the goods; and (3) the possession was recently after the larceny, mere possession of stolen property being insufficient to raise a presumption of guilt. -8- Id. (citations omitted). The Maines Court went on to explain

that

possession sufficient to give rise to such inference does not require that the defendant have the article in his hand, on his person or under his touch. It is sufficient that he be in such physical proximity to it that he has the power to control it to the exclusion of others and that he has the intent to control it.

Id. at 674-75, 273 S.E.2d at 293-94 (citation omitted).

The State’s evidence in Maines tended to show that on 5

July 1979 a grocery store was broken into and a number of items

including an old blue coat, cigarettes, a necklace, cigarette

rolling papers, Avon products, and toothbrushes were stolen.

Id. at 670, 273 S.E.2d at 291. On 7 July 1979, the defendant

Maines and an individual named Steve Dunn were observed in a

Pontiac car in a parking lot. Dunn owned the vehicle but it was

operated at the time by Maines. Two men were riding in the rear

seats of the vehicle. Pursuant to Dunn’s consent, police

searched Dunn’s vehicle and found paper bags containing

cigarettes, a blue nylon windbreaker coat, two new toothbrushes,

and a necklace worn by Dunn. At trial, Maines testified that on

5 July 1979 he was at his uncle’s house and that he had no

knowledge of the items found in the car. Dunn denied breaking

into the grocery store and stealing property. However, Dunn -9- testified that the necklace, toothbrushes, and cigarettes

belonged to him. Initially, Dunn admitted to officers that the

blue coat was his, but later at trial, explained that he thought

it was his coat without closely inspecting it. The owner of the

grocery store positively identified the old blue coat as her

coat and testified that the necklace, toothbrushes, cigarette

papers, cartons of cigarettes, and a number of loose packs of

cigarettes were of the same type as those stolen from her store.

A jury found Maines guilty of felonious breaking and entering

and felony larceny. Id. at 673, 273 S.E.2d at 292.

Our Supreme Court held that the

“exclusive” possession required to support an inference or presumption of guilt need not be a sole possession but may be joint. If the situation is one where persons other than defendant have equal access to the stolen goods, the inference may not arise. For the inference to arise where more than one person has access to the property in question, the evidence must show the person accused of the theft had complete dominion, which might be shared with others, over the property or other evidence which sufficiently connects the accused person to the crime or a joint possession of co- conspirators or persons acting in concert in which case the possession of one criminal accomplice would be the possession of all.

Id. at 675, 273 S.E.2d at 294 (citation omitted). Based on the

foregoing, the Maines Court held that the State failed to show -10- that Maines had possession to the exclusion of persons not party

to the crime or actual or personal possession of the stolen

property but that Maines’ possession was “at most constructive,

based on the fact he was driving the car and presumably in

control of it and its contents.” Id. at 676, 273 S.E.2d at 294.

The Maines Court refused to uphold the defendant’s conviction

because it was based on the stacked inferences that “to convict

defendant, the jury must infer that defendant possessed the

goods from the mere fact of driving with the owner of the car

seated beside him and then infer he was the thief who stole them

based on the possession of recently stolen goods.” Id.

The facts of the case sub judice are clearly

distinguishable from those found in Maines. In Maines, the

State’s evidence showed that the defendant was merely the driver

of a car which contained stolen goods, that there were other

passengers in the car, and that there was no other evidence

linking the defendant to the stolen goods. Here, reviewing the

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

clearly showed that although Officer Hussey observed a white

male passenger in the stolen vehicle along with defendant,

suggesting joint possession, defendant had complete dominion

over the stolen property and had actual possession over the -11- stolen property when he was observed by Officer Hussey driving

the vehicle. Keys to the Yukon found in the crawl space where

only defendant was found hiding after parking and leaving the

stolen vehicle is also further evidence of defendant’s

connection to the crime.

Based on these facts, we conclude that the State proved the

elements necessary to give rise to the presumption established

under the doctrine of recent possession. Accordingly, the trial

court did not err by denying his motion to dismiss and

defendant’s argument is overruled.

B. Larceny and Possession

Next, defendant argues that the trial court erred by

improperly convicting defendant for both larceny of property and

possession of the same property and by entering judgment for

both. We agree.

“Our Supreme Court has held that the legislature did not

intend to punish a defendant for possession of the same goods

that he stole. Since the defendant can only be convicted of

either the larceny or the possession of stolen property,

judgment must be arrested in one of the two cases.” State v.

Szucs, 207 N.C. App. 694, 702-703, 701 S.E.2d 362, 368 (2010)

(citations and quotation marks omitted). -12- In the present case, the trial court stated the following:

The jury has returned verdicts in this matter of guilty of possession of stolen vehicle and felonious larceny. The Court will note that each of those are Class H felonies. . . . [U]nder the law I am required to arrest judgment as to one of them. I can’t sentence you for both, okay. So they’re basically consolidated for sentence, all right.

The written judgment entered 17 January 2013 consolidated both

the felony larceny and possession of a stolen motor vehicle

convictions and sentenced defendant to fifteen (15) to twenty-

“Although the trial court in this case consolidated the

judgments for sentencing, this Court has specifically held that

consolidation of the convictions for judgment does not cure this

error[.]” State v. Hager, 203 N.C. App. 704, 711, 692 S.E.2d

404, 409 (2010) (citation and quotations marks omitted). We,

therefore, arrest judgment on defendant’s conviction of

possession of a stolen motor vehicle and remand for entry of

judgment and resentencing on the felony larceny conviction.

No error in part; judgment arrested in part and remanded

for resentencing.

Judges ELMORE and DAVIS concur.

Report per Rule 30(e).