State v. McClure ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-266
Filed: 20 October 2015
Mecklenburg County, Nos. 13 CRS 30542, 214471-73
STATE OF NORTH CAROLINA
v.
JAMARIO JERMAINE MCCLURE
Appeal by Defendant from judgment entered 8 August 2014 by Judge C.
Thomas Edwards in Mecklenburg County Superior Court. Heard in the Court of
Appeals 23 September 2015.
Attorney General Roy Cooper, by Assistant Attorney General Bethany A.
Burgon, for the State.
Glover & Petersen, P.A., by Ann B. Petersen, for Defendant.
STEPHENS, Judge.
In this appeal, Defendant presents two issues for our consideration: (1)
whether the removal of a robbery victim was sufficiently separate and distinct from
that crime so as to support an additional charge of second-degree kidnapping, and (2)
whether a jury instruction on the doctrine of recent possession of stolen property was
warranted. After careful review, we answer both questions in the affirmative, and,
accordingly, we find no error in the trial of Defendant Jamario Jermaine McClure.
STATE V. MCCLURE
Opinion of the Court
Factual and Procedural History
On the morning of 5 November 2012, Malik Douglas was asleep in the home at
1115 Greenleaf Avenue in Charlotte where he lived with his stepfather and mother,
Roslyn McClendon. Douglas, an eleventh-grade student who had been suspended
from school, was the only person in the home after his mother left for work about 7:30
a.m. A little after 8:30 a.m., Douglas was awakened by a noise. After discovering
that there was no one at the front door, Douglas noticed a light on in his mother’s
room. When he investigated, Douglas discovered a man going through his mother’s
belongings. When Douglas asked what the man was doing, he responded that he was
a friend of Douglas’ mother and that she had invited him to the house. Douglas left
his mother’s room and headed down the hall, intending to call the police. When
Douglas looked back, he saw the intruder pointing a gun at him. The man forced
Douglas to his own bedroom and demanded all of the phones and money Douglas had.
After obtaining a cell phone, a landline telephone, and about $40 or $50 from Douglas,
the man asked whether there were any illegal drugs in the home. When Douglas told
the man there were not, he forced Douglas back into McClendon’s room where
Douglas noticed a black bag that contained, inter alia, his mother’s Coach pocketbook.
The intruder told Douglas to lie face down on the floor. After Douglas complied, the
man ran out of the house through the front door. Douglas borrowed a cell phone from
a neighbor and called 911.
-2-
STATE V. MCCLURE
Opinion of the Court
Charlotte-Mecklenburg Police Department (“CMPD”) officers responded to the
call. Douglas described the intruder as a 25-year-old black man about 5 feet 11 inches
tall with long deadlocked hair past his shoulders, a dark complexion, and gold teeth.
CMPD crime scene investigators discovered a broken window in McClendon’s room
and took fingerprints from the scene. When she arrived home, McClendon discovered
that her laptop computer and jewelry were missing, including her 1990 class ring
from East Mecklenburg High School. A few days later, CMPD Detectives Stephen
Todd and Michael Peacock showed Douglas a photo lineup of six black men, one of
whom was a possible suspect, but Douglas was not able to identify the intruder.
On 10 April 2013, CMPD Detective David Dickinson discovered information in
a database of pawnshop sales that someone using McClure’s driver’s license as
identification sold jewelry, including McClendon’s class ring, to Brownlee Jewelers
on 5 November 2012 just after 1:00 p.m. Based upon this information, on 12 April
2013, warrants were issued for McClure’s arrest. CMPD officers failed to locate
McClure at his mother’s home, but McClure later called the CMPD and agreed to
turn himself in. When McClure arrived at the police department, he was arrested,
given his Miranda warnings, and interrogated. McClure waived his Miranda rights
and admitted having sold the jewelry to Brownlee Jewelers. However, McClure
explained that he bought the jewelry for $60 cash and some marijuana from a man
-3-
STATE V. MCCLURE
Opinion of the Court
he met on the street. Detective Todd put together a new photo lineup that included
a photograph of McClure. Douglas identified McClure as the intruder.
On 29 April 2013, the grand jury returned indictments charging McClure with
robbery with a dangerous weapon, second-degree kidnapping, and breaking and
entering with the intent to commit a felony therein. On 29 July 2013, McClure was
indicted for having attained the status of an habitual felon. The cases came on for
trial at the 4 August 2013 criminal session of Mecklenburg County Superior Court.
After the jury returned guilty verdicts on the criminal charges, McClure entered a
plea admitting his status as an habitual felon. The trial court consolidated all of the
verdicts into a single judgment and sentenced McClure to 88 to 118 months in prison.
McClure gave notice of appeal in open court.
Discussion
McClure argues that the trial court erred in (1) denying his motion to dismiss
the kidnapping charge for insufficiency of the evidence, and (2) instructing the jury
on the doctrine of recent possession of stolen property. We find no error.
I. Motion to dismiss the kidnapping charge
McClure first argues that the trial court erred in denying his motion to dismiss
the kidnapping charge for insufficiency of the evidence. We disagree.
“This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted).
-4-
STATE V. MCCLURE
Opinion of the Court
“Upon [a] defendant’s motion for dismissal, the question for the Court is whether
there is substantial evidence (1) of each essential element of the offense charged, or
of a lesser offense included therein, and (2) of [the] defendant’s being the perpetrator
. . . . If so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526
S.E.2d 451, 455 (citation and internal quotation marks omitted), cert. denied, 531
U.S. 890, 148 L. Ed. 2d 150 (2000). “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, 78-79, 265 S.E.2d 164, 169 (1980) (citations omitted). “In making
its determination, the trial court must consider all evidence admitted, whether
competent or incompetent, in the light most favorable to the State, giving the State
the benefit of every reasonable inference and resolving any contradictions in its
favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994) (citation omitted),
cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).
Under our General Statutes,
[a]ny person who shall unlawfully confine, restrain, or
remove from one place to another, any other person 16
years of age or over without the consent of such person . . .
shall be guilty of kidnapping if such confinement, restraint
or removal is for the purpose of . . . [f]acilitating the
commission of any felony or facilitating flight . . . following
the commission of a felony. . . .
-5-
STATE V. MCCLURE
Opinion of the Court
N.C. Gen. Stat. § 14-39(a)(2) (2013). “If the person kidnapped was released in a safe
place by the defendant and had not been seriously injured or sexually assaulted, the
offense is kidnapping in the second degree.” Id. § 14-39(b).
The term “restrain,” while broad enough to include a
restriction upon freedom of movement by confinement,
connotes also such a restriction, by force, threat or fraud,
without a confinement. Thus, one who is physically seized
and held, or whose hands or feet are bound, or who, by the
threatened use of a deadly weapon, is restricted in his
freedom of motion, is restrained within the meaning of this
statute.
State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978).
Noting the double jeopardy implication, our Supreme Court has held “that
[section] 14-39 was not intended by the Legislature to make a restraint, which is an
inherent, inevitable feature of such other felony, also kidnapping so as to permit the
conviction and punishment of the defendant for both crimes.” Id. Accordingly, the
restraint required to prove kidnapping must be “separate and apart from that which
is inherent in the commission of the other felony.” Id.
On the other hand, it is well established that two or more
criminal offenses may grow out of the same course of
action, as where one offense is committed with the intent
thereafter to commit the other and is actually followed by
the commission of the other . . . . In such a case, the
perpetrator may be convicted of and punished for both
crimes. Thus, there is no constitutional barrier to the
conviction of a defendant for kidnapping, by restraining his
victim, and also of another felony . . . , provided the
restraint, which constitutes the kidnapping, is a separate,
-6-
STATE V. MCCLURE
Opinion of the Court
complete act, independent of and apart from the other
felony.
Id. at 523-24, 243 S.E.2d at 351-52. For example, in a case where the defendants
kidnapped a woman in a parking lot and forced her into nearby woods where she was
raped, our Supreme Court held:
Removal of [the victim] from her automobile to the location
where the rape occurred was not such asportation as was
inherent in the commission of the crime of rape. Rather, it
was a separate course of conduct designed to remove her
from the view of a passerby who might have hindered the
commission of the crime. To this extent, the action of
removal was taken for the purpose of facilitating the felony
of first-degree rape. Thus, [the] defendant’s conduct fell
within the purview of [section] 14-39 and the evidence was
sufficient to sustain a conviction of kidnapping under that
section.
State v. Newman, 308 N.C. 231, 239-40, 302 S.E.2d 174, 181 (1983).
At the close of the State’s evidence in this case, McClure moved to dismiss all
charges. The trial court denied that motion, and, after McClure rested his case
without offering any evidence, he again moved to dismiss all charges. Again, the trial
court denied the motion. McClure then made an additional motion to dismiss the
kidnapping charge, contending there was insufficient evidence of restraint beyond
that inherent and inevitable in the commission of a robbery. The trial court denied
that motion.
On appeal, McClure contends the latter denial was error because his removal
of Douglas at gunpoint from Douglas’ mother’s room to Douglas’ bedroom and back
-7-
STATE V. MCCLURE
Opinion of the Court
again “was a mere technical asportation and insufficient to support conviction for a
separate kidnapping offense[,]” citing State v. Irwin, 304 N.C. 93, 103, 282 S.E.2d
439, 446 (1981), to support his argument. In Irwin, one of two men who were
attempting to rob a drugstore “forced [an employee] at knifepoint to walk from her
position near the fountain cash register to the back of the store in the general area of
the prescription counter and safe.” Id. Our Supreme Court held that the “removal to
the back of the store was an inherent and integral part of the attempted armed
robbery” because, “[t]o accomplish [the] defendant’s objective of obtaining drugs it
was necessary that [one of the two store employees present] go to the back of the store
to the prescription counter and open the safe.” Id.
McClure also relies heavily on the removal of the victims in State v. Payton,
198 N.C. App. 320, 679 S.E.2d 502 (2009), as being analogous to his walking Douglas
up and down the hall in his case. In Payton, two women
were ordered at gunpoint to move from the “bathroom area”
to the bathroom and to maintain a submissive posture, but
neither was bound or physically harmed. After being
questioned about where money could be located in the
house, the door to the bathroom was closed. The women
were in the bathroom for ten to fifteen minutes total while
the three men completed the robbery.
Id. at 328, 679 S.E.2d at 507. This Court held that “the movement of the women from
the ‘bathroom area’ to the bathroom was a ‘technical asportation,’ such as seen in
Irwin,” noting that previous cases had established that
-8-
STATE V. MCCLURE
Opinion of the Court
requiring the victims to lie on the floor while the robbery is
taking place does not place the victims in greater danger
than the robbery itself. Unlike [in State v.] Davidson, the
victims in this case were not confined in another room in
order to keep passersby from hindering the commission of
the crime.”
Id. (emphasis added).
We find Irwin and Payton distinguishable. Although the removal of Douglas
to his bedroom, where McClure forced Douglas to give him money and phones, was
integral to McClure’s commission of that portion of the robbery, McClure’s removal
of Douglas back to his mother’s room and his forcing Douglas to lie down on the floor
and not move were not. At that point, McClure had already robbed Douglas of the
money and phones and had already filled the black bag with McClendon’s pocketbook
and jewelry. Thus, unlike the removal in Payton, which took place during the
commission of the robbery, the removal of Douglas to McClendon’s room where he
was forced to lie on the floor occurred after the robbery. We find the removal here
more analogous to that in State v. Davidson, where
the perpetrators, including [the] defendant, forced the
victims at gunpoint to walk from the front of the store some
thirty to thirty-five feet to a dressing room in the rear
where they bound them with tape and robbed both them
and the store. Since none of the property was kept in the
dressing room, it was not necessary to move the victims
there in order to commit the robbery. Removal of the
victims to the dressing room thus was not an inherent and
integral part of the robbery. Rather, as in Newman, it was
a separate course of conduct designed to remove the victims
from the view of passersby who might have hindered the
-9-
STATE V. MCCLURE
Opinion of the Court
commission of the crime. The evidence thus was sufficient
under [section] 14-39 to sustain the kidnapping
convictions, and the court properly denied [the] defendant’s
motion to dismiss the kidnapping charges.
77 N.C. App. 540, 543, 335 S.E.2d 518, 520, disc. review denied and appeal dismissed,
314 N.C. 670, 337 S.E.2d 583 (1985), disc. review denied, 315 N.C. 393, 338 S.E.2d
882 (1986). McClure’s removal of Douglas to lie on the floor of McClendon’s room was
not necessary to the commission of the crime, but rather served to prevent anyone
from hindering McClure. For example, Douglas could have left the home to seek help
or followed McClure as he fled in order to report his vehicle or route of escape. In
sum, because the removal of Douglas to McClendon’s room “was not an inherent and
integral part of the robbery[, but r]ather, . . . was a separate course of conduct
designed to” prevent interference with the commission of the crime, “[t]he evidence
thus was sufficient under [section] 14-39 to sustain the kidnapping conviction[.]” See
id. The trial court did not err in denying McClure’s motion to dismiss the kidnapping
charge, and, accordingly, this argument is overruled.
II. Jury instruction on recent possession of stolen property
McClure also argues that the trial court erred in instructing the jury, over his
objection, on the doctrine of recent possession of stolen property. Specifically,
McClure contends that he presented a reasonable explanation for his possession of
McClendon’s class ring and other stolen items sold to the pawnshop on the day of the
- 10 -
STATE V. MCCLURE
Opinion of the Court
robbery so as to overcome any presumption about his possession of those recently
stolen goods. We disagree.
“[Arguments] challenging the trial court’s decisions regarding jury instructions
are reviewed de novo by this Court.” State v. Osorio, 196 N.C. App. 458, 466, 675
S.E.2d 144, 149 (2009) (citations omitted). “The prime purpose of a court’s charge to
the jury is the clarification of issues, the elimination of extraneous matters, and a
declaration and an application of the law arising on the evidence.” State v. Cameron,
284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973) (citations omitted), cert. denied, 418
U.S. 905, 41 L. Ed. 2d 1153 (1974). “[A] trial judge should not give instructions to the
jury which are not supported by the evidence produced at the trial.” Id. (citations
omitted). “Where jury instructions are given without supporting evidence, a new trial
is required.” State v. Porter, 340 N.C. 320, 331, 457 S.E.2d 716, 721 (1995) (citation
omitted).
“It is the general rule in this State that one found in the unexplained
possession of recently stolen property is presumed to be the thief.” State v. Raynes,
272 N.C. 488, 491, 158 S.E.2d 351, 353 (1968).
In order for the doctrine [of recent possession] to be
invoked, the State must prove beyond a reasonable doubt
that: (1) the property is stolen; (2) it was found in the
defendant’s custody and subject to his control and
disposition to the exclusion of others; and (3) the possession
was recently after the unlawful taking.
- 11 -
STATE V. MCCLURE
Opinion of the Court
State v. Wilson, 313 N.C. 516, 535, 330 S.E.2d 450, 463 (1985) (citations omitted).
“This is a factual presumption and is strong or weak depending on circumstances—
the time between the theft and the possession, the type of property involved, and its
legitimate availability in the community.” Raynes, 272 N.C. at 491, 158 S.E.2d at
353-54.
In Raynes, for example, our Supreme Court explained that
[t]he possession of an unmarked carton of Camel
cigarettes, even in a short time after cigarettes have been
stolen, in the absence of some further identification, will
not be as strong as the possession of a recently stolen
pillowcase, a three-strand pearl necklace, a diamond
wedding band, a Hamilton watch, and a Norelco electric
razor, and several hundred dollars in nickels, dimes,
quarters and half-dollars. The possession of these stolen
articles on Sunday morning following a breaking on the
previous afternoon presents a strong case of circumstantial
evidence.
Id. at 491, 158 S.E.2d at 354.
On the other hand,
[t]he inference which arises from the possession of recently
stolen goods may be overcome by the presentation of a
reasonable explanation for the possession of the goods.
However, the issue of whether a reasonable explanation
has been given must be decided by the jury. The apparent
reasonableness of the explanation does not take the
question from the jury nor does it necessarily lead to an
acquittal.
State v. Earley, 38 N.C. App. 361, 363, 247 S.E.2d 796, 797-98 (1978) (citations
omitted). In Earley, the defendant argued that the trial court erred in denying his
- 12 -
STATE V. MCCLURE
Opinion of the Court
motion to dismiss because he had “presented sufficient evidence to overcome the
presumption or inference of guilt created by the doctrine of recent possession.” Id. at
363, 247 S.E.2d at 797. This Court held that
the reasonableness of the defendant’s explanation for his
possession of the recently stolen goods was an issue for the
jury. As there was sufficient evidence to justify a finding
by the jury that the defendant was in possession of recently
stolen goods, the jury was entitled to draw the inference
that the defendant had stolen the goods in question.
Id. at 364, 247 S.E.2d at 798. Nothing in that case suggested that the trial court
erred in instructing the jury on the doctrine of recent possession.
McClure cites State v. Anderson, 162 N.C. 571, 572, 77 S.E. 238, 238 (1913),
for the proposition that it is error for a trial court to instruct the jury on the doctrine
of recent possession where the defendant offers a reasonable explanation of his
possession of the recently stolen property. We find that case distinguishable.
In Anderson,
the court charged the jury as follows: “The law is that
whenever a person is found in possession of property which
has been stolen and recently after the theft, the law
presumes that the person so found in possession is the one
who has stolen the property, and this presumption is
strong or weak according to the length of time which has
passed between the time of the stealing and the time the
said property is found in his possession, and the burden
then shifts to the person so found in possession to show, not
beyond a reasonable doubt, but to the satisfaction of the
jury, that he came by the property in a lawful manner, and
thus rebut such presumption.”
- 13 -
STATE V. MCCLURE
Opinion of the Court
Id. (emphasis added). In reviewing that instruction, our Supreme Court held that
when there are facts in evidence which would afford
reasonable explanation of such possession, consistent with
defendant’s innocence, and which, if accepted, do explain it
satisfactorily, the correct rule does not require the
defendant to satisfy the jury that his evidence in
explanation is true. But in such case, stating the law as to
the presumption arising from recent possession, the court
should tell the jury that if the testimony offered in
explanation raises a reasonable doubt of guilt [the]
defendant is entitled to acquittal.
Id. at 574-75, 77 S.E. at 239. In other words, the instructions were faulty in that they
directed the jury that (1) someone found in possession of recently stolen property (2)
is presumed to be the thief (3) without consideration of the reasonableness of any
explanation offered by the defendant for his possession of the stolen property. See id.
Here, in contrast, the trial court instructed the jury:
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 that property. A person
possesses property when that person is aware of its
presence and has both the power and intent to control its
disposition or use. And third, that the Defendant had
possession of the property so soon after it was stolen, and
under such circumstances as to make it unlikely that the
Defendant gained possession honestly.
If you find these three things from the evidence, beyond a
reasonable doubt, you may consider them, together with all
other facts and circumstances, in deciding whether or not
the Defendant is guilty of robbery or breaking or entering.
- 14 -
STATE V. MCCLURE
Opinion of the Court
(Emphasis added). Unlike the instruction held to be error in Anderson, the trial court
here did not tell the jury that the law presumes McClure stole the jewelry simply
because he possessed it shortly after it was stolen and without any consideration of
the reasonableness of his explanation regarding possession. Rather, the trial court
explicitly told the jury that it must consider, not only whether the jewelry was stolen,
whether McClure possessed it, and the length of time between the theft and his
possession, but also whether the circumstances of McClure’s possession “ma[d]e it
unlikely that the Defendant gained possession honestly.” Thus, unlike in Anderson,
the trial court did not shift the burden onto McClure to prove his possession was
lawful in order to rebut a presumption that he was the thief. Instead, the trial court
properly instructed the jury that it must consider the circumstances of McClure’s
possession of the stolen property, beyond simply the timing, in order to determine the
likelihood that his possession was lawful.
In sum, none of the case law cited by McClure suggests that it is error for a
trial court to give an instruction on recent possession simply because the defendant
has offered an explanation to explain his possession of recently stolen goods.
Accordingly, McClure’s argument to the contrary is overruled.
NO ERROR.
Judges MCCULLOUGH and ZACHARY concur.
Report per Rule 30(e).
- 15 -