State v. Dobie ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1143
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 12 CRS 14674
DWIGHT VERNON DOBIE, 12 CRS 14676
Defendant
Appeal by defendant from judgment entered 6 February 2013
by Judge W. Robert Bell in Mecklenburg County Superior Court.
Heard in the Court of Appeals 5 March 2014.
Attorney General Roy Cooper, by Associate Attorney General
Laura Askins, for the State.
Don Willey for defendant-appellant.
GEER, Judge.
Defendant Dwight Vernon Dobie appeals from a judgment
entered on his conviction of felony larceny of a motor vehicle
and being a habitual felon. On appeal, defendant primarily
argues that the trial court erred in denying his motion to
dismiss because the State's evidence of the value of the stolen
vehicle was inadmissible, and the State did not otherwise
present sufficient evidence of the value of the stolen vehicle
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to support his felony larceny conviction. Because, however, the
State presented evidence that the stolen motor vehicle was a
2007 BMW and also provided the jury with photographs of the BMW
showing its condition, a reasonable juror could find that the
value of the BMW was greater than $1,000.00. Since defendant
does not contest any other elements of the offense, the trial
court properly denied the motion to dismiss.
Facts
The State's evidence tended to show the following facts.
On the morning of 18 November 2011, Gualberto Portela dropped
his father off at Presbyterian Hospital in Charlotte, North
Carolina for a regular dialysis treatment. Mr. Portela parked
his car, a silver 2007 BMW 525i, at the front entrance to the
hospital, turned the car off, left the keys in it, and helped
his father into the hospital. Mr. Portela was gone less than a
minute, but when he returned outside, his car was missing. Mr.
Portela immediately called the police to report his car as
stolen.
Officer Charles Brown, Jr. of the Charlotte-Mecklenburg
Police Department ("CMPD") was dispatched and arrived at the
hospital shortly after Mr. Portela's report. Based in part on a
conversation with Mr. Portela at the hospital, Officer Brown
filled out and transmitted a police report to CMPD headquarters.
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In that report, Officer Brown stated that the value of the
stolen BMW was $20,000.00. From hospital surveillance
videotape, Officer Brown was able to determine features and
characteristics of a suspect and issued a "[b]e on the lookout"
("BOLO") statement.
The next day, on 19 November 2011, defendant was at the
hospital visiting his girlfriend. Hospital security apprehended
and detained defendant as a suspect matching the description
issued in the BOLO, and Detective Alan Wolfe of the CMPD was
dispatched to the hospital to further review the hospital's
surveillance videotape and question defendant. When Detective
Wolfe showed defendant surveillance photos taken 18 November of
a person matching defendant's description at the hospital,
defendant admitted to being at the hospital that day.
After a search of defendant's person yielded nothing,
Detective Wolfe released defendant because although he believed
defendant got into the stolen BMW, the detective could not
actually see him doing so because a column was blocking the
camera's view of the car. Nonetheless, a week later, on 25
November 2011, CMPD Officer Gerren Willis stopped defendant
while defendant was driving the stolen BMW and arrested him.
Mr. Portela then recovered the BMW.
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Defendant was indicted for larceny, possession of a stolen
vehicle, and being a habitual felon. The jury found defendant
guilty of larceny and possession of a stolen vehicle, and the
trial court arrested judgment on the conviction of felony
possession of a stolen vehicle after defendant pled guilty to
being a habitual felon, the trial court sentenced defendant to a
term of 129 to 164 months imprisonment. Defendant timely
appealed to this Court.
I
Defendant first argues that the trial court erred in
denying his motion to dismiss for insufficient evidence.
Defendant acknowledges that he may not have properly preserved
this argument and, therefore, argues, in the alternative, that
his trial counsel provided ineffective assistance of counsel by
failing to timely renew the motion to dismiss for insufficient
evidence. Even assuming, without deciding, that the issue was
properly preserved, we hold that the trial court properly denied
the motion to dismiss.
"The standard of review for a motion to dismiss for
insufficient evidence is well settled. [T]he trial court must
consider the evidence in the light most favorable to the State,
drawing all reasonable inferences in the State's favor. All
evidence, competent or incompetent, must be considered." State
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v. Bradshaw, 366 N.C. 90, 92-93, 728 S.E.2d 345, 347 (2012)
(internal citation and quotation marks omitted). "When
reviewing a defendant's motion to dismiss a charge [for
insufficient] evidence, this Court determines whether the State
presented substantial evidence in support of each element of the
charged offense." State v. Abshire, 363 N.C. 322, 327-28, 677
S.E.2d 444, 449 (2009) (internal quotation marks omitted).
"'Substantial evidence is relevant evidence that a reasonable
person might accept as adequate, or would consider necessary to
support a particular conclusion.'" Id. at 328, 677 S.E.2d at
449 (quoting State v. McNeil, 359 N.C. 800, 804, 617 S.E.2d 271,
274 (2005)).
"To convict a defendant of felonious larceny, it must be
shown that he: (1) took the property of another, (2) with a
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); N.C. Gen. Stat. §
14–72(a) (2013). Defendant challenges the evidence supporting
the element requiring "a value of more than $1,000.00." Id.Defendant contends that the only evidence of the value of
the stolen BMW was Officer Brown's testimony, based on his
police report, that the value of the BMW was $20,000.00. He
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argues that this evidence was inadmissible because Officer Brown
lacked a proper foundation to make this estimate and that,
consequently, the trial court erred in failing to grant the
motion to dismiss.
Defendant has overlooked the pertinent standard of review,
which requires that "[a]ll evidence, competent or incompetent,
must be considered" in deciding the sufficiency of the evidence
to survive a motion to dismiss. Bradshaw, 366 N.C. at 93, 728
S.E.2d at 347 (emphasis added). Officer Brown's testimony,
admissible or not, is, therefore, sufficient evidence of the
value of the BMW for purposes of the motion to dismiss and,
therefore, the trial court did not err in denying the motion to
dismiss.
However, even if Officer Brown's testimony could not be
considered, the record still contains sufficient evidence that
the BMW was worth more than $1,000.00. "'The State is not
required to produce direct evidence of . . . value to support
the conclusion that the stolen property was worth over
$1,000.00, provided that the jury is not left to speculate as to
the value of the item.'" State v. Rahaman, 202 N.C. App. 36,
47, 688 S.E.2d 58, 66 (quoting State v. Davis, 198 N.C. App.
146, 151-52, 678 S.E.2d 709, 714 (2009)), abrogated on other
grounds in part by State v. Tanner, 364 N.C. 229, 695 S.E.2d 97-7-
(2010). Further, a jury is "free to exercise their own reason,
common sense and knowledge acquired by their observation and
experiences of everyday life." State v. Edmondson, 70 N.C. App.
426, 430, 320 S.E.2d 315, 318 (1984), aff'd, 316 N.C. 187, 340
S.E.2d 110 (1986).
In this case, Officer Brown testified that the vehicle
stolen from Mr. Portela was a silver 2007 BMW 525i. The State
also introduced two photos of Mr. Portela's BMW: one photo
showed a side profile of the BMW and another provided a clear
image of the rear perspective of the car, including the license
plate. Both photos portray a late model BMW sedan that has no
exterior defects. In addition, Mr. Portela testified that these
photos "fairly and accurately represent the condition of [my]
vehicle in November of 2011."
We hold that this evidence was sufficient to allow a
reasonable jury to conclude, based on their own common sense and
knowledge, that the value of the stolen motor vehicle exceeded
$1,000.00. See id. ("After hearing all the evidence, and
viewing photographs that showed extensive damage in the
ransacked offices, the jury found that the damage done to the
personal property exceeded $200. While there may not have been
any precise evidence as to the amount of these damages the jury
was free to exercise their own reason, common sense and
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knowledge acquired by their observation and experiences of
everyday life.").
II
Defendant next argues that the trial court committed plain
error in allowing Officer Brown to testify from his police
report that the value of the stolen BMW was $20,000.00. Our
Supreme Court has explained:
For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. To
show that an error was fundamental, a
defendant must establish prejudice -- that,
after examination of the entire record, the
error had a probable impact on the jury's
finding that the defendant was guilty.
Moreover, because plain error is to be
applied cautiously and only in the
exceptional case, the error will often be
one that seriously affect[s] the fairness,
integrity or public reputation of judicial
proceedings[.]
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)
(internal citations and quotation marks omitted).
We need not decide whether Officer Brown's testimony was
proper lay opinion testimony because defendant has failed to
demonstrate that in the absence of that testimony, the jury
probably would have reached a different verdict. Significantly,
defendant did not make any attempt to show that the BMW had a
value of no more than $1,000.00 when it was stolen. Without
some evidence suggestive of a lower value, we believe that it is
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improbable that a juror would have concluded that a three-year-
old BMW with no visible exterior defects and which was in
working mechanical condition when defendant absconded with and
was later pulled over while driving it, was worth no more than
$1,000.00. Accordingly, we hold that defendant has failed to
show that the admission of Officer Brown's testimony was plain
error. See, e.g.,
State v. Dallas, 205 N.C. App. 216, 221-22, 695 S.E.2d 474, 478
(2010) (holding that defendant failed to show admission of
testimony regarding value of stolen property was sufficiently
prejudicial when State presented other evidence that property
was worth more than $1,000.00).
III
Finally, defendant contends that the trial court erred in
failing to instruct the jury on the lesser offense of
misdemeanor larceny because "there was no competent evidence
submitted by the State of the value of the motor vehicle" when
it was stolen. Defendant argues that it was, therefore, within
the jury's province to decide whether or not the value of the
BMW was $1,000.00 or less. We disagree.
"The sole factor determining the judge's obligation to give
[a lesser included offense instruction] is the presence, or
absence, of any evidence in the record which might convince a
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rational trier of fact to convict the defendant of a less
grievous offense." State v. Wright, 304 N.C. 349, 351, 283
S.E.2d 502, 503 (1981). "Mere contention that the jury might
accept the State's evidence in part and might reject it in part
will not suffice[,]" State v. Hicks, 241 N.C. 156, 160, 84
S.E.2d 545, 547 (1954), and "'the trial court need not submit
lesser included degrees of a crime to the jury when the State's
evidence is positive as to each and every element of the crime
charged and there is no conflicting evidence relating to any
element of the charged crime[,]'" State v. Millsaps, 356 N.C.
556, 562, 572 S.E.2d 767, 772 (2002) (quoting State v. Thomas,
325 N.C. 583, 594, 386 S.E.2d 555, 561 (1989)).
Because it was improbable that the jury would have
concluded the value of the BMW was no more than $1,000.00 even
absent Officer Brown's testimony, and since defendant did not
otherwise challenge or contradict the State's evidence that was
relevant to the value of the BMW, defendant's argument amounts
to a mere contention that the jury might have rejected the
State's evidence of the value of the stolen BMW. Defendant has
pointed to no evidence suggesting that the BMW in fact had a
value of $1,000.00 or less. Consequently, the trial court did
not err in refusing to instruct the jury on the lesser included
offense of misdemeanor larceny. See State v. Haney, 28 N.C.
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App. 222, 223, 220 S.E.2d 371, 372 (1975) ("There was no
evidence that the value of the stolen motorcycle was less than
[the minimum value for felony larceny] and it was therefore, not
prejudicial error to fail to instruct the jury on misdemeanor
larceny.").
No error.
Judges ROBERT C. HUNTER and McCULLOUGH concur.
Report per Rule 30(e).