State v. Woods

HEDRICK, Chief Judge.

This case is before this Court on appeal from defendant’s second trial; defendant was granted a new trial by our Supreme Court in State v. Woods, 311 N.C. 80, 316 S.E. 2d 229 (1984).

On this appeal, defendant first assigns error to the trial court’s denial of his motion to dismiss.

At trial the State presented evidence tending to show the following: Stephen Douglas Dunn was working at a service station in Candor, North Carolina on 22 November 1981. At approximately 9:00 p.m. a masked man, carrying a gun, entered the store and demanded the money from the cash register. A customer drove up to the gas pumps and the masked man panicked and ran behind the counter. Dunn gave him the entire cash register drawer, which contained approximately $1,300. A second masked man entered the store wearing a light blue leisure jacket and said to the first man, “There is someone coming.” Both men fled. Dunn ran outside and saw a dark green Buick station wagon leave the service station. Dunn later noticed that his RG-38 revolver, which he kept under the counter, was missing. He had seen his gun under the counter a minute before the masked men entered the store. The gun had contained two bullets.

Biscoe Police Officer Davis observed a green station wagon at 9:10 p.m. about four miles from the service station. He pursued the vehicle, and heard a shot fired. The car was found on a dead end street with the engine running and no one inside. A search of the car revealed various items of clothing and an empty cash register drawer. The car was owned by Oscar Garcia Gonzalés of High Point, North Carolina. Gonzales was found at 4:00 a.m. on 23 November 1981 in a stolen car with $1,039 in cash.

Police Chief W. L. Batten of the Star Police Department received a call at 6:30 a.m. on 23 November 1981 that a supicious person was in the Quik Chek store. At the store he observed defendant wearing a blue leisure jacket. Defendant told Batten that he worked in a mill near the traffic light. (There were no mills near the only traffic light in town.) Batten searched defendant, found the RG-38 revolver, and arrested him for carrying a concealed weapon. The gun, which contained one bullet and one spent shell, was identified by Dunn.

Defendant did not present any evidence.

In considering 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 defendant was the perpetrator of the offense. State v. Powell, 299 N.C. 95, 261 S.E. 2d 114 (1980). The evidence, whether circumstantial or direct, must be considered in the light most favorable to the State. State v. Bright, 301 N.C. 243, 271 S.E. 2d 368 (1980).

As neither perpetrator was identified by Dunn, the State relied on the doctrine of possession of recently stolen goods to link defendant to the crime. This doctrine holds that the possession of stolen property recently after the theft and without the intervening agency of others, raises an inference that the person in possession of the property is the thief. State v. Woods, supra. To invoke the doctrine of possession of recently stolen goods the State must prove beyond a reasonable doubt that (1) the property was stolen; (2) the stolen goods were found in defendant’s custody and control, to the exclusion of others; and (3) the possession was recently after the commission of the larceny. State v. Woods, supra. In the instant case we find that there was sufficient evidence that the stolen money and gun were found in the possession of Gonzales and defendant shortly after the robbery to invoke this doctrine.

Although defendant was found in possession of the gun, the evidence tends to show that he also stole the cash, under the doctrine of acting in concert. Under this doctrine defendant must be present at the scene of the crime and there must be evidence that defendant was acting together with another who is doing acts necessary to constitute the crime, pursuant to a common plan or purpose to commit the crime. State v. Woods, supra; State v. Joyner, 297 N.C. 349, 255 S.E. 2d 390 (1979). We find that the evidence, viewed in the light most favorable to the State, was sufficient to permit the inference that defendant stole both Dunn’s gun and the cash, and, thus, withstands defendant’s motion to dismiss. Defendant’s assignment of error is overruled.

In his second assignment of error defendant argues that the trial court erred in ordering his sentence to begin at the expiration of a sentence imposed at a previous Davidson County common law robbery case when his plea bargain in that case provided that the sentence would run concurrently with the sentence imposed in defendant’s first trial for this offense.

G.S. 14-87(d) provides in pertinent part:

A person convicted of robbery with firearms or other dangerous weapons shall receive a sentence of at least 14 years in the State’s prison. . . . Sentences imposed pursuant to this section shall run consecutively with and shall commence at the expiration of any sentence being served by the person sentenced hereunder.

The trial judge was required to order defendant’s sentence to begin at the expiration of his current sentence imposed in Davidson County. The judge had no discretion, but was compelled to follow the unambiguous requirement set forth in G.S. 14-87(d). This assignment of error is overruled.

We have carefully considered defendant’s assignments of error and find

No error.

Judge BECTON concurs in the result. Judge Parker concurs.