State v. Holland , 318 N.C. 602 ( 1986 )

PARKER, Justice.

We note at the outset of our discussion that defendant has abandoned Assignments of Error Nos. 1, 4, 7, and 8 by failing to advance any argument in his brief to support them. N.C. R. App. P. 28(a). On the basis of his six remaining assignments of error, defendant contends that the trial court erred by denying his motions to dismiss for insufficient evidence the charges of robbery with a dangerous weapon and of felonious possession of stolen property, by denying his request for special jury instructions, and by allowing prejudicial statements to influence his sentence for robbery with a dangerous weapon. We conclude that the conviction of robbery with a dangerous weapon should be vacated, and that the conviction of felonious possession should be reversed and remanded to Superior Court for resentencing as a misdemeanor because of insufficient evidence. We find no error in the jury instructions given by the trial court. We do not address the propriety of the sentence for robbery with a dangerous weapon since this conviction has been vacated.

The State’s evidence tended to show that Virginia and Allen Carroll found the nude body of their next-door neighbor and tenant, Kenneth Hurley, the victim, lying on the floor in the bedroom of his residence in Reidsville, N.C., at approximately 8 a.m., on Sunday, 14 October 1984. The victim had numerous stab wounds to his chest which caused his death late Friday, 12 October, or early Saturday, 13 October. The Carrolls were concerned about the victim since at approximately 1 a.m., on Saturday, 13 October, Mr. Carroll, upon returning home from his work, observed the victim’s 1975 Chrysler Cordoba automobile parked in the victim’s driveway with the lights on and the motor running and thought that he observed something in the back seat. Shortly thereafter, the Cordoba backed out and rapidly departed. The Carrolls never observed the Cordoba again and did not see the victim until their investigation on Sunday at which time they used their passkey to gain entrance into the victim’s locked residence. The victim’s bedroom was ransacked, and although the rest of the victim’s residence was undisturbed, a Magnavox television that had previously been located upon a bookcase in the living room was missing and the television antenna wire lay on the floor beside the bookcase. There was an area clear of dust on top of the bookcase, and some ceramic figurines that had been knocked off lay on the floor in front of the bookcase. Mr. Carroll testified that the victim also owned a gold watch and a class ring set with a red stone. The television, the watch, and the ring were never found.

The 1975 Chrysler Cordoba was located in Danville, Virginia, on Monday, 15 October. The defendant had possession of the Cordoba on Saturday, 13 October; Robert Thompson and Daryl Taylor each had possession of the Cordoba on Saturday and Sunday, 13 and 14 October. Neither Thompson nor Taylor was acquainted with the victim, but the defendant was acquainted with the victim and had been sexually involved with him prior to Friday, 12 October.

Defendant and Taylor were arrested and indicted for first degree murder, robbery with a dangerous weapon, and possession of a stolen vehicle. Thompson was arrested and indicted for possession of a stolen vehicle. All charges against Taylor and Thompson were dismissed by the State in return for their truthful testimony. The defendant did not testify and presented no evidence at the trial.

Defendant’s motions to dismiss all charges against him and his request for special jury instructions on the application of the doctrine of recent possession were denied.

Other relevant facts are discussed in the issues which follow.

I.

Defendant first contends that his motion to dismiss the charge of robbery with a dangerous weapon should have been allowed by the trial court because the State’s evidence was insufficient to establish that a watch, a ring, and a television had been stolen.

On a motion to dismiss, the trial court must determine from all the evidence, taken in the light most favorable to the State, whether there is substantial evidence that the crime charged has been committed and that the accused is the person who did it. State v. Smith, 307 N.C. 516, 299 S.E. 2d 431 (1983). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Smith, 300 N.C. 71, 265 S.E. 2d 164 (1980). In judging the sufficiency of the State’s evidence, the trial court must consider all the evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference that might be drawn therefrom. State v. Brown, 310 N.C. 563, 313 S.E. 2d 585 (1984).

“It is fundamental law that the proof of a charge in criminal cases involves the proof of two distinct propositions: (1) that the act itself was done, and (2) that it was done by the person or persons charged. The proof of the corpus delicti is just as essential as is the proof of the identity of the person or persons committing the offense, and proof thereof is a prerequisite to conviction.” State v. Norggins, 215 N.C. 220, 222, 1 S.E. 2d 533, 535 (1939).

To support a conviction of robbery with a dangerous weapon, the State must prove that the accused “having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another.” N.C.G.S. § 14-87 (1981).

The evidence tended to show that on Friday, 12 October, at 3 p.m., defendant told Daryl Taylor that he was going to North Carolina to steal a car and a television, and would kill the owner if necessary. At that time defendant knew the victim, had been sexually involved with him, and hoped to meet the victim on Friday, 12 October. Defendant’s companions, Michael Cabiness and Robert Thompson, could account for defendant’s whereabouts until 10:30 p.m., Friday, 12 October. Taylor and Thompson testified that the next time they saw defendant was 8 p.m., Saturday, 13 October, at which time defendant was driving the victim’s Cordoba. Defendant invited Thompson and Taylor to go driving, telling them that the car was “hot,” but would not be missed until Monday, 15 October.

To prevail, the State must establish by substantial evidence that the victim possessed the personal property and this property was taken from him by defendant. To support this conclusion, the State offered the evidence of Mr. Carroll who testified that the victim owned a gold watch. Frances Brown, the victim’s co-worker, testified that the victim was wearing a gold watch at 5:30 p.m., on Friday, 12 October, when he delivered some pictures to her. Defendant’s companion, Michael Cabiness, testified that he saw defendant wearing a gold watch on Monday, 15 October, some three days after the victim’s death. The only identifying characteristic given to any description of the watch was that the watch was a gold one. No other evidence connected the watch with the victim or defendant.

As to the ring, Mr. Carroll testified that the victim owned a class ring set with a red stone. Frances Brown testified that the victim usually wore a gold class ring set with a red stone, but she could not say whether he was wearing the ring when she last saw him on Friday, 12 October. The only evidence that associated defendant with any ring was that of Robert Gray of the Rockingham County Sheriffs Department, who testified that defendant’s statement to the police included a description of a gold class ring set with a red stone, bearing the words “Lansing High School, 1954,” and engraved on the inside of the band with the initial “K” or “H,” which defendant said he saw in the possession of Taylor after the victim’s death. No ring was ever found, and no evidence was presented to clearly identify as the victim’s the ring described by defendant in his statement.

Mr. Carroll testified that the victim had a television, but he was unable to say when he had last seen the television in the victim’s residence. Taylor testified that on Friday, 12 October, defendant said that he intended to steal a television. No evidence exists that a television was seen in defendant’s possession at any time. The State also presented evidence that when the victim’s body was discovered on Sunday, 14 October, the Magnavox television that previously had been located on a bookcase in the living room was gone, and a television antenna wire lay on the floor beside the bookcase. There was an area clear of dust on the top of the bookcase, and some ceramic figurines that had been knocked off lay on the floor in front of the bookcase.

This evidence is insufficient to establish that the victim possessed the watch or the ring at the time of the alleged robbery. The fact that these items were absent from the scene of the alleged robbery and never recovered thereafter is insufficient to establish proof of the crime charged.

The State next relies upon the doctrine of possession of recently stolen property to prove defendant’s identity as the robber. To invoke this doctrine, the State must prove beyond a reasonable doubt each fact necessary to give rise to the inference; namely, that the property is stolen and that the stolen property was found in defendant’s possession and under his control recently after the theft. State v. Gonzalez, 311 N.C. 80, 316 S.E. 2d 229 (1984); State v. Voncannon, 302 N.C. 619, 276 S.E. 2d 370 (1981).

The identity of the fruits of the crime must be established before the presumption of recent possession can apply. The presumption is not in aid of identifying or locating the stolen property, but in tracking down the thief upon its discovery.

State v. Foster, 268 N.C. 480, 485, 151 S.E. 2d 62, 66 (1966) (quoting State v. Jones, 227 N.C. 47, 49, 40 S.E. 2d 458, 460 (1946)).

The watch listed in the indictment is a non-unique, mass-produced item distributed in national markets. Possession of a non-unique item similar or identical to a stolen item standing alone is not sufficient to establish defendant’s possession of the stolen item.

The matter of non-unique items was considered in Foster, 268 N.C. 480, 151 S.E. 2d 62, where six new automobile tires were stolen from a service station. Six tires, identical to the ones stolen, were found in the defendant’s possession shortly after the theft. This Court held that defendant’s possession of like items was insufficient for the application of the recent possession doctrine because the owner could not positively identify as his own the tires which defendant possessed and was accused of stealing. Even if it were to be conceded that the tires were stolen, there was no evidence that they were stolen from the owner’s service station and were the owner’s property. In such cases, the State must also identify the item as stolen 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. State v. Jackson, 274 N.C. 594, 164 S.E. 2d 369 (1968); State v. Owens, 75 N.C. App. 513, 331 S.E. 2d 311 (1985); State v. Hales, 32 N.C. App. 729, 233 S.E. 2d 601 (1977); State v. Crawford, 27 N.C. App. 414, 219 S.E. 2d 248 (1975), disc, rev. denied, 288 N.C. 732, 220 S.E. 2d 621 (1975).

Even if the evidence were sufficient to establish that the watch belonging to the victim was stolen, a review of the State’s evidence shows that the State has failed to present any other identifying characteristic, beyond the generic description “gold watch,” to establish that the gold watch seen in the victim’s possession prior to his death and the gold watch seen in defendant’s possession after the victim’s death was the same.

There is no evidence in the record that a television was ever seen in defendant’s possession, and the testimony of defendant’s intent to steal a television can in no manner establish defendant’s possession.

The general description of the class ring is clearly insufficient for the purposes of identification of the item. There is no evidence that defendant had possession of the ring at any time; consequently, the State’s evidence is also insufficient as to this item.

These deficiencies prevent the application of the doctrine of recent possession as to the watch, the ring, and the television for the purpose of inferring that defendant was the thief.

The State further contends that, under the doctrine of recent possession of stolen property, defendant’s theft of the watch, the ring, and the television, committed contemporaneously with the theft of the Chrysler Cordoba, may be inferred by defendant’s possession of the stolen automobile. The State urges that defendant’s possession of the Cordoba supports the inference that defendant also stole the watch, the ring, and the television. This additional inference, which would permit the State to survive the motion to dismiss, is permissible only if evidence exists of the contemporaneous crimes. State v. Joyner, 301 N.C. 18, 269 S.E. 2d 125 (1980).

To conclude that defendant stole the watch, the ring, and the television because of his possession of the automobile would require the stacking of inferences on the basis of circumstantial evidence. This we believe would be impermissible.

A basic requirement of circumstantial evidence is reasonable inference from established facts. Inference may not be based on inference.’ Every inference must stand upon some clear and direct evidence and not upon some other inference or presumption.

State v. Ledford, 315 N.C. 599, 610, 340 S.E. 2d 309, 317 (1986) (quoting State v. Parker, 268 N.C. 258, 262, 150 S.E. 2d 428, 431 (1966)).

The State’s evidence raises only a suspicion that the watch, the ring, and the television were stolen; consequently, the State has failed to prove the corpus delicti. Defendant’s motion to dismiss should have been allowed. We vacate the judgment of the defendant’s conviction of armed robbery with a dangerous weapon.

II.

Defendant next assigns as error the denial of his motion to dismiss the felonious possession of the stolen automobile. His sole contention is that the State failed to establish that defendant’s possession of the victim’s Chrysler Cordoba was felonious.

The fair market value of stolen property at the time of the theft must exceed the sum of four hundred dollars for the possession to be felonious. Otherwise, the possession will constitute a misdemeanor. N.C.G.S. § 14-72 (1981).

Defendant’s plea of not guilty placed every essential element of the charge in issue, including the automobile’s value. State v. Jones, 275 N.C. 432, 168 S.E. 2d 380 (1969).

Although the State offered no direct evidence of the Cordoba’s value, there is in the record evidence tending to show that the victim owned two automobiles and that the 1975 Chrysler Cordoba was his favorite one of which he took especially good care, always keeping it parked under a shed, and that a picture of this automobile was exhibited to the jury for the purpose of establishing the location of the automobile when discovered after its theft. The State contends that this evidence is sufficient to support the jury’s finding that the automobile’s value at the time of the theft exceeded four hundred dollars. We are not convinced and find that the substantiality of the evidence is insufficient for presentation of the issue of value to the jury. The jury may not speculate as to the value. Although the trial court properly instructed the jury as to the difference between misdemeanor and felony possession, the evidence was not such as would justify the jury in finding that the value of the Cordoba exceeded four hundred dollars.

Hence, although the verdict will not be disturbed, the judgment is vacated; and this case is remanded to the Superior Court, Rockingham County, for the pronouncement of a judgment herein as upon a verdict of guilty of misdemeanor possession of stolen property and defendant resentenced accordingly.

III.

Defendant next assigns as error the trial court’s denial of defendant’s request for special jury instructions. Defendant contends that the trial court, when giving the standard instruction to the jury on possession of recently stolen property, committed reversible error in refusing to summarize the conflict between the State’s evidence and defendant’s evidence as to the times of possession of the Chrysler Cordoba.

Defendant has failed to comply with the North Carolina Rules of Appellate Procedure, Rule 10(b)(2). Although defendant properly indicated what he considered to be the objectionable portion of the jury instructions, defendant failed to set out the substance of the omitted instruction requested by him, and this prevents the preservation of the objection for the purposes of appeal.

We have, however, reviewed the jury instructions given by the trial court and, although the specific language of defendant’s argument is not included, it does appear that the instruction, when read as a whole, presents the issue of possession by others for the jury’s consideration.

In this assignment of error, we find no error.

IV.

Defendant’s last assignment of error directed to the imposition of the maximum sentence for robbery with a dangerous weapon need not be addressed in this opinion since defendant’s conviction on that charge has been here vacated.

For the reasons heretofore stated, the conviction of robbery with a dangerous weapon is vacated, and the conviction of felonious possession of stolen property is reversed and remanded to the Superior Court, Rockingham County, for resentencing as a misdemeanor. We find no error in the conviction of first degree murder, and we find no error in the jury instructions given by the trial court.

No. 84CRS11512 — No error.

No. 84CRS11991 — Judgment vacated.

No. 84CRS10672 — Judgment vacated and remanded for a new sentencing hearing.