State v. Lineberger ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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.
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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,
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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.
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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
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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
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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.
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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
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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
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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
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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).
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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-
seven (27) months incarceration.
“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).