State v. Thorpe ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-346
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
STATE OF NORTH CAROLINA
v. Orange County
Nos. 12 CRS 245, 53107
BABE ANDREW THORPE, JR.
Appeal by defendant from judgment entered 5 September 2013
by Judge Michael J. O’Foghludha in Orange County Superior Court.
Heard in the Court of Appeals 25 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Elizabeth N. Strickland, for the State.
M. Alexander Charns, for defendant-appellant.
CALABRIA, Judge.
Babe Andrew Thorpe, Jr. (“defendant”) appeals from a
judgment entered upon jury verdicts finding him guilty of
felonious breaking or entering (“B&E”) and larceny after B&E
that includes his guilty plea to attaining habitual B&E status.
We find no error, but remand for the correction of a clerical
error.
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On 6 November 2012, by 8:00 a.m., both Kathryn Flynn (“Mrs.
Flynn”) and her husband left their residence (the “Flynns’
residence”) on Old North Carolina Highway 10 in Hillsborough,
North Carolina. Between 12:00 p.m. and 2:00 p.m., Kim Rider
(“Rider”) arrived at the Flynns’ residence to walk their dog.
Rider had a key to the residence, and found everything “normal”
at that time.
At 2:30 p.m., Orange County Sheriff’s Office Investigator
Doug Koehler (“Investigator Koehler”) observed a burgundy
Explorer (“the vehicle”) parked in the driveway of a vacant
American Legion building on Old North Carolina Highway 10,
located two-tenths of a mile from the Flynns’ residence.
Investigator Koehler drove into the driveway facing the vehicle
since the driver of the vehicle had backed it into the driveway
facing the highway. As Investigator Koehler checked the
vehicle’s license tag to determine the owner, defendant,
approached him.
Investigator Koehler noticed the front pockets of
defendant’s sweatshirt “were weighted down” with loose change.
Defendant’s response to Investigator Koehler’s question
regarding the change was that a lady down the street had paid
him in change for raking leaves, but defendant did not know how
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much change he had in his pockets. Defendant was also unable to
tell Investigator Koehler the amount he had charged to perform
the task. When Investigator Koehler asked defendant to show him
where he had raked the leaves, defendant “became very loud
saying, ‘[T]ake me to jail. I have a lawyer. . . . You can
search me.’” With defendant’s consent, Investigator Koehler
performed a pat-down search.
In defendant’s back pocket, Investigator Koehler found a
coin bearing the name Louis Braille “in a hard plastic
container[.]” Investigator Koehler obtained defendant’s
permission to search the vehicle and found two women’s rings
beside the gear shift on the center console. There were clear
stones in the setting of one of the rings, while the other was
set with clear and colored stones. Defendant told
Investigator Koehler that the rings belonged to his girlfriend.
Investigator Koehler also noticed loose change on the back seat
of the vehicle which was similar to the change in defendant’s
pockets because it was “all silver. There were no pennies[.]”
After canvassing the residences in the area without finding
any signs of a forced entry, Investigator Koehler allowed
defendant to leave. Investigator Koehler then spoke with
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several residents in the area, and discovered that none of them
had hired defendant to rake leaves.
At 6:00 p.m., when Mrs. Flynn returned home, she discovered
that her house had been “ransacked.” A limited-release Louis
Braille commemorative coin encased in a hard plastic container
and two antique rings set with diamonds and rubies were missing
from the residence. Mrs. Flynn also observed that a coin jar
containing nickels, dimes, and quarters had been emptied, while
a vase full of pennies was undisturbed. The next day, 7
November 2012, Investigator Koehler learned that several items
and coins had been stolen from the Flynns’ residence that were
similar to those he had observed in defendant’s possession the
previous afternoon.
Defendant was subsequently arrested and charged with
felonious B&E, larceny after B&E, and possession of stolen
property. At trial, Investigator Koehler testified for the
State regarding his encounter with defendant, that defendant had
been walking from the direction of the Flynns’ residence, and
the items defendant possessed. After all the evidence had been
presented, defendant made an unsuccessful motion to dismiss.
The jury returned verdicts finding defendant guilty of all
offenses. Defendant then pled guilty to the status offense of
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habitual B&E and stipulated to the aggravating factor that he
committed the offenses while on pretrial release. The trial
court arrested judgment on the possession of stolen goods
offense and consolidated defendant’s remaining offenses for
judgment. The trial court then sentenced defendant to a minimum
of 36 months and a maximum of 56 months in the custody of the
North Carolina Division of Adult Correction. Defendant appeals.
Defendant argues that the trial court erred in denying his
motion to dismiss. Specifically, defendant contends that the
State failed to present substantial evidence of his identity as
the perpetrator. We disagree.
In reviewing the denial of defendant’s motion to dismiss,
this Court must determine whether “there is substantial evidence
(1) of each essential element of the offense charged, and (2)
that defendant is the perpetrator of the offense. Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” State v. Key, 182
N.C. App. 624, 628-29, 643 S.E.2d 444, 448 (2007) (citations and
quotation marks omitted). We consider “the evidence in the
light most favorable to the State, and the State is entitled to
all reasonable inferences which may be drawn from the evidence.”
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State v. Wood, 174 N.C. App. 790, 795, 622 S.E.2d 120, 123
(2005).
“The essential elements of larceny are that the defendant:
1) took the property of another; 2) carried it away; 3) without
the owner’s consent; and 4) with the intent to deprive the owner
of the property permanently.” State v. Osborne, 149 N.C. App.
235, 242-43, 562 S.E.2d 528, 534 (2002) (citation omitted).
Larceny committed pursuant to a breaking or entering is a
felony. N.C. Gen. Stat. § 14-72(b)(2) (2013). “Any person who
breaks or enters any building with intent to commit any felony
or larceny therein shall be punished as a Class H felon.” N.C.
Gen. Stat. § 14-54(a) (2013). “[T]he intent to commit larceny
may be inferred from the fact that [the] defendant committed
larceny.” State v. Chillo, 208 N.C. App. 541, 546, 705 S.E.2d
394, 398 (2010) (citation omitted).
Where there is only circumstantial evidence of B&E or
larceny, the State must rely on the doctrine of recent
possession. State v. Maines, 301 N.C. 669, 673, 273 S.E.2d 289,
293 (1981). “For the doctrine of recent possession to apply,
the State must show: (1) the property was stolen, (2) defendant
had possession of the property, subject to his control and
disposition to the exclusion of others, and (3) the possession
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was sufficiently recent after the property was stolen[.]” State
v. McQueen, 165 N.C. App. 454, 460, 598 S.E.2d 672, 677 (2004).
“The possession, in point of time, should be so close to the
theft as to render it unlikely that the possessor could have
acquired the property honestly.” State v. Jackson, 274 N.C.
594, 597, 164 S.E.2d 369, 370 (1968). “Under the doctrine of
recent possession, possession of recently stolen property raises
a presumption that the possessor stole the property.” State v.
Lee, 213 N.C. App. 392, 395, 713 S.E.2d 174, 177 (2011). “Non-
unique property may be identified by reference to
characteristics other than its appearance: the assemblage or
combination of items recovered, the quantity of items recovered,
and the stamps and marks on items recovered.” Id. at 395, 713
S.E.2d at 177.
In the instant case, the State presented evidence that Mrs.
Flynn returned home to a ransacked house and discovered her
rings and coins were stolen from her residence. Investigator
Koehler encountered defendant, who had possession of Mrs.
Flynn’s property without her consent and with the intent to
deprive her of her property permanently. Investigator Koehler
noticed defendant was on foot walking from the direction of the
Flynns’ residence to his vehicle, which was parked on vacant
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property located two-tenths of a mile from the Flynns’
residence. Defendant’s possession of Mrs. Flynn’s property was
close to the time that Rider had found the Flynns’ residence
undisturbed.
Defendant contends that the State failed to prove that the
coins and rings found in his possession were the same items
stolen from the Flynns’ residence. Defendant notes that the
“unknown number of U.S. coins” removed from Mrs. Flynn’s coin
jar were indistinguishable from “millions of other coins in
circulation.” Defendant further characterizes Investigator
Koehler’s description of the rings in the vehicle as too
“generic” to identify them as Mrs. Flynn’s rings. Absent any
other evidence linking him to the larceny at the Flynns’
residence, defendant insists “[t]here was nothing save
conjecture” to establish his possession of the stolen property.
Defendant is mistaken.
In defendant’s possession were a substantial quantity of
“all silver” loose change, a commemorative Louis Braille coin
encased in plastic, and two women’s rings set with stones – the
very types of items missing from Mrs. Flynn’s “ransacked”
residence. The likelihood that defendant could have acquired
this precise combination of objects honestly, and so close to
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the Flynns’ residence at the time Investigator Koehler observed
him, is unlikely. See Jackson, 274 N.C. at 597, 164 S.E.2d at
370. Although Mrs. Flynn’s property was a combination of unique
property (the rings and the Louis Braille commemorative coin) as
well as non-unique property (the coins), the coins could be
identified by reference to characteristics other than their
appearance, such as “the assemblage or combination of items
recovered[.],” Lee, 213 N.C. App. at 395, 713 S.E.2d at 177.
The coins were identified by the fact that they were “all silver
. . . . no pennies[.]” Mrs. Flynn reported that the empty coin
jar had contained nickels, dimes, and quarters and a vase full
of pennies was undisturbed. Therefore, it was unlikely that
defendant could innocently be in possession of Mrs. Flynn’s
recently stolen unique rings in combination with the coins.
Defendant’s possessing the property raises the presumption that
defendant was the perpetrator who stole the property. Id.
Viewing the evidence in the light most favorable to the
State, the State presented substantial circumstantial evidence
that Mrs. Flynn’s stolen property was the property Investigator
Koehler observed in defendant’s possession on the afternoon of
the larceny. Pursuant to the doctrine of recent possession, the
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State presented substantial evidence from which the jury could
infer defendant’s guilt. Defendant’s argument is overruled.
Although we find no error in defendant’s trial, there is a
clerical error in the section designated for the trial court’s
findings on the judgment indicating that defendant was sentenced
as an habitual felon. Since the trial court found defendant
attained the status of an habitual breaking and entering status
offender, and although defendant was properly sentenced as
attaining the status of an habitual breaking and entering
offender, the judgment needs to be corrected. We remand for
correction of this clerical error.
No error; remanded for correction of clerical error.
Judges GEER and McCULLOUGH concur.
Report per Rule 30(e).