State v. Rieson ( 2015 )

AN UNPUBLISHED OPINION OF THE NORTH CAROLINA COURT OF APPEALS
DOES NOT CONSTITUTE CONTROLLING LEGAL AUTHORITY. CITATION IS
D ISFAVORED, BUT MAY BE PERMITTED IN ACCO RDANCE WITH TH E
PROVISIONS OF RULE 30(E)(3) OF THE NORTH CAROLINA RULES OF APPELLATE
P R O C E D U R E .
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-965
Filed: 19 May 2015
Rockingham County, No. 12 CRS 1674, 51735
STATE OF NORTH CAROLINA, Plaintiff,
v.
JAMIE REISON, Defendant.
Appeal by defendant from judgment entered 12 December 2013 by Judge
Reuben Young in Rockingham County Superior Court. Heard in the Court of Appeals
4 March 2015.
Attorney General Roy Cooper, by Assistant Attorney General Nancy D.
Hardison, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Jillian C.
Katz, for defendant.
ELMORE, Judge.
STATE V. RIESON
Opinion of the Court
On 10 September 2012, Jamie Rieson (defendant) was indicted on one count
each of felony breaking and entering, first-degree arson, and larceny after breaking
and entering. After a jury trial, defendant was found guilty of the charges. Defendant
was sentenced as a prior record level I to a term of 64-89 months imprisonment for
first-degree arson, 6-17 months imprisonment for larceny breaking and entering, and
6-17 months imprisonment for felony breaking and entering, which were to run
consecutively. Defendant appeals. After careful consideration, we conclude that
defendant received a trial free from error.
I. Background
The State’s evidence at trial tended to show: In 2012, defendant was residing
in a camper on his father’s property at 204 Park Road in Eden. Wayne Pulliam’s
residence was located next door at 206 Park Road. Mr. Pulliam’s home was two-
stories and had a wooden front porch. Mr. Pulliam’s property also contained three
locked outbuildings where he kept miscellaneous tools.
On the night of 21 April 2012, Officer Brian Roland of the Eden Police
Department responded to a call for assistance. Officer Roland drove to the reported
location and encountered defendant, who claimed to have been assaulted. Officer
Roland observed that defendant was intoxicated and agreed to give him a ride to
defendant’s father’s property. Defendant indicated that he was camping on the
property, as there was no actual structure or residence built on the land. Officer
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STATE V. RIESON
Opinion of the Court
Roland did not notice anything suspicious about the neighboring Pulliam property
when he drove by it.
After dropping defendant off, Officer Roland drove approximately two minutes
down the road to a gas station to complete the necessary paperwork in his patrol
vehicle. Shortly thereafter, Officer Roland heard a fire call come over his radio for
206 Park Road. He realized that the fire location was next door to where he’d recently
dropped off defendant. Officer Roland returned to the property, which was completely
engulfed in flames.
Mr. Pulliam testified that he was asleep in a back bedroom when he woke to
find that the front of his house was engulfed in flames. To escape the fire, Mr. Pulliam
was forced to jump from a first-floor window. Investigators determined that the fire
originated on the front porch and had been set intentionally, using gasoline as an
accelerant. The Pulliam residence was completely destroyed by the fire.
Deputy Chief Cicero Thomas Underwood of the fire department was
dispatched to the scene. He, Mr. Pulliam, and Officer Roland each saw defendant at
the scene and reported that defendant appeared intoxicated and was acting
erratically. Mr. Pulliam testified that he smelled the odor of gasoline on defendant.
Mr. Pulliam also alleged that defendant was possibly angry with him because Mr.
Pulliam had refused to give defendant a ride that night. Mr. Pulliam also alleged
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STATE V. RIESON
Opinion of the Court
that defendant was likely upset because defendant learned that Mr. Pulliam’s brother
had engaged in a sexual relationship with defendant’s girlfriend.
On 22 April 2012, the night after the fire, the outbuildings located on Mr.
Pulliam’s property were broken into and numerous saws and other tools were stolen.
Mr. Bruce Southard, who was also charged in connection with this crime,
testified against defendant in conjunction with his plea bargain. Mr. Southard
alleged that defendant slept at his residence on the evening of the fire. Mr. Southard
testified that he smelled gas on defendant and that defendant later admitted to
setting fire to the Pulliam residence. Mr. Southard also alleged that defendant asked
him to retrieve numerous tools from defendant’s father’s property and sell them. Mr.
Southard admitted that he agreed to help defendant sell the tools, which he alleged
were covered in smoke and soot.
Mr. Southard and defendant enlisted the assistance of Clarence Poythress, Jr.
in retrieving the tools from defendant’s father’s property. Mr. Poythress testified that
the tools were dirty and soot covered. Mr. Poythress helped defendant transport the
tools to Donnie and Cecil Carter’s residence. Donnie Carter, and his son, Cecil,
purchased the tools from defendant.
The investigation of the arson and theft of the tools was assigned to Officer
Ronnie Markham of the Eden Police Department. In an interview with Officer
Markham, Mr. Poythress described helping defendant and Mr. Southard transport
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STATE V. RIESON
Opinion of the Court
the tools from defendant’s property to the Carters. Officer Markham testified that
Donnie and Cecil Carter alleged that they had sold the tools at the flea market, except
for one Craftsman saw that was still in the box. Detective Markham confiscated the
Craftsman saw. The Craftsman saw was not entered into evidence at trial, and Mr.
Pulliam did not identify the saw as having belonged to him.
Defendant testified on his own behalf at trial, maintaining that he was
innocent of all charges.
At trial, the trial court instructed the jury as follows as to the charge of
felonious larceny:
For you to find the defendant guilty of this offense, the
State must prove six things beyond a reasonable doubt:
First, that the defendant took property belonging to
another.
Second, that the defendant carried away the property.
Third, that the victim did not consent to the taking and
carrying away of the property.
Fourth, that at the time, the defendant intended to deprive
him of its use permanently.
Fifth, that the defendant knew he was not entitled to take
the property.
And sixth, that the property was taken from a building
after a breaking or entering or that the property was worth
more than one thousand dollars.
...
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STATE V. RIESON
Opinion of the Court
The State seeks to establish the defendant’s guilt by the
doctrine of recent possession. For this doctrine to apply,
the State must prove three things beyond a reasonable
doubt:
First, that property was stolen.
Second, that the defendant had possession of this property.
A person possesses property when that person is aware of
its presence and has, either alone or together with others,
both the power and intent to control its disposition or use.
And third, that the defendant had possession of this
property so soon after it was stolen and under such
circumstances as to make it unlikely that the defendant
obtained possession honestly.
The jury found defendant guilty of felonious larceny. Defendant appeals this
conviction.
II. Analysis
Defendant’s sole argument on appeal is that the trial court erred in instructing
the jury on the doctrine of recent possession in connection with the felonious larceny
charge. We disagree.
Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure requires a
party to present a timely request, objection, or motion to the trial court to preserve a
question for appellate review. See N.C. R. App. P. 10(a)(1). At trial, defendant
objected to the trial court’s jury instruction on the doctrine of recent possession on
grounds that such instruction was “surplusage.” Defense counsel stated, “I view this
as being surplusage, Judge . . . given the evidence that’s before the Court at this
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STATE V. RIESON
Opinion of the Court
point.” On appeal, defendant argues that the trial court’s instruction was given in
error because the State failed to present sufficient evidence that the property
described in the indictment was stolen. Because defendant objected to the trial
court’s jury instruction on grounds of “surplusage,” not insufficiency of the evidence,
which is what defendant argues on appeal, this issue is not properly preserved.
Accordingly, we will review this issue for plain error.
Our Supreme Court has held that “plain error analysis applies only to
instructions to the jury and evidentiary matters.” State v. Greene, 351 N.C. 562, 566,
528 S.E.2d 575, 578 (2000). Plain error arises when the error is “‘so basic, so
prejudicial, so lacking in its elements that justice cannot have been done[.]’” State v.
Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v.
McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed.
2d. 513 (1982)). “Under the plain error rule, defendant must convince this Court not
only that there was error, but that absent the error, the jury probably would have
reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697
(1993).
It is well established that “[a] jury instruction is proper if it is based on some
reasonable view of the evidence.” State v. Lee, 213 N.C. App. 392, 395, 713 S.E.2d
174, 177 (2011) (quotation and citation omitted). “The doctrine of recent possession
allows the jury to infer that the possessor of certain stolen property is guilty of
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STATE V. RIESON
Opinion of the Court
larceny.” State v. Pickard, 143 N.C. App. 485, 487, 547 S.E.2d 102, 104 (2001). For
this doctrine to apply, the State must show that “(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; and (3) the possession
was recently after the larceny, mere possession of stolen property being insufficient
to raise a presumption of guilt.” State v. Maines, 301 N.C. 669, 674, 273 S.E.2d 289,
293 (1981) (internal citations omitted).
Defendant argues that the State failed to establish that the recovered tool—a
“Craftsman saw in the container”—was stolen. Defendant specifically contends that
the first prong of the recent possession test was not met because the recovered tool
was not unique and because Mr. Pulliam never identified the Craftsman saw as being
one of the stolen items.
We are not persuaded by defendant’s argument. The State’s evidence can
reasonably be viewed as showing that the Craftsman saw was stolen property, and
therefore the trial court did not err by instructing the jury on the doctrine of recent
possession.
The first prong of the “recent possession” test requires that the property be
identified as stolen. To satisfy this prong, “the property need not be unique to be
identified.” Lee, 213 N.C. App. At 395, 713 S.E.2d at 177. “Non-unique property may
be identified by reference to characteristics other than its appearance: the
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STATE V. RIESON
Opinion of the Court
assemblage or combination of items recovered, the quantity of items recovered, and
the stamps and marks on items recovered.” Id. (citations and quotations omitted).
The State may present either direct or circumstantial evidence to satisfy its burden.
Id. “[C]ircumstantial evidence is proof of a chain of facts and circumstances
indicating the guilt or innocence of a defendant.” Id. at 396, 713 S.E.2d at 177
(quoting State v. Adcock, 310 N.C. 1, 36, 310 S.E.2d 587, 607–08 (1984)). We hold
that the State produced sufficient circumstantial evidence from which the jury could
conclude that the recovered Craftsman was stolen.
Mr. Pulliam testified that on the evening after the fire he had between twenty
and twenty-five saws stolen from the three outbuildings located on his property. Mr.
Southard testified that on the evening after the fire, defendant requested his help in
selling a variety of saws because defendant “need[ed] to get rid of [them] quick.” Mr.
Southard stated that most of the tools were covered in smoke and “smut,” as if they
had been near a fire. Mr. Southard told Officer Ronnie Markham that defendant
admitted he stole the tools from “next to his daddy’s house,” which was the Pulliam
property. Mr. Southard and Mr. Poythress helped defendant transport the tools from
the property so that they could be sold to Cecil and Donnie Carter.
Detective Markham testified that Cecil and Donnie Carter admitted to
purchasing multiple tools from defendant and selling them at the flea market. Cecil
and Donnie Carter informed Detective Markham that the only remaining tool they
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STATE V. RIESON
Opinion of the Court
had in their possession was the Craftsman saw in the box, which they turned over to
law enforcement.
To recap, it is undisputed that numerous saws were stolen from the
outbuildings on Mr. Pulliam’s property; Mr. Southard and Mr. Poythress disclosed
that they aided defendant in transporting the tools from defendant’s father’s
residence to the Carters; and the Carters admitted to purchasing the tools from
defendant, which included the Craftsman saw in the box. Given this evidence, we
hold that the State produced sufficient circumstantial evidence so that the jury could
have concluded that the Craftsman saw was stolen from the Pulliam residence on 22
April 2014. Accordingly, we conclude that the first prong of the doctrine of recent
possession test was satisfied.
Defendant does not argue that the State failed to present sufficient evidence
to satisfy prongs two and three of the recent possession test. Therefore, we need not
address whether the State presented sufficient evidence to satisfy the remaining
prongs.
Defendant has failed to convince this Court that the trial court erred in
instructing the jury on the doctrine of recent possession. Assuming arguendo that
such instruction was error, defendant certainly has not shown that such error rose to
the level of plain error. Accordingly, we hold that defendant received a trial free from
error.
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STATE V. RIESON
Opinion of the Court
No error.
Judge INMAN concurs.
Judge GEER concurs in result only.
Report per Rule 30(e).
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