State v. Rice , 252 N.C. App. 480 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-906
Filed: 4 April 2017
Edgecombe County, Nos. 14 CRS 51350, 52372
STATE OF NORTH CAROLINA
v.
TREVON DEANDRE RICE, Defendant.
Appeal by defendant from judgments entered 24 February 2016 by Judge Alma
L. Hinton in Edgecombe County Superior Court. Heard in the Court of Appeals 23
February 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Jason R.
Rosser, for the State.
Mary McCullers Reece for defendant-appellant.
MURPHY, Judge.
Trevon Deandre (“Defendant”) appeals from his convictions for two counts of
possession of stolen goods in violation of N.C.G.S. § 14-71.1 (2015). On appeal, he
contends that the trial court erred by denying his motions to dismiss the charges on
the ground that the State failed to offer sufficient evidence that he constructively
possessed two stolen firearms that were found in a van he had rented. After careful
review, we reject Defendant’s arguments and conclude that he received a fair trial
free from error.
STATE V. RICE
Opinion of the Court
Factual Background
The State presented evidence at trial tending to establish the following facts:
On 26 April 2014, Ronald Bryant called the Rocky Mount Police Department to report
that his home had been broken into and that various items of his personal property,
including his .9 millimeter Smith & Wesson handgun (“the Smith & Wesson”), had
been stolen. Eleven days later on 7 May 2014, Christian Boswell’s home in Rocky
Mount was broken into and, among other items of personal property, Boswell’s .380
millimeter Kel-Tec semi-automatic pistol (“the Kel-Tec”) was stolen.
On the same day Boswell’s home was robbed, Terry Reeves (“Reeves”) was
driving by Brandy Braswell’s house in Rocky Mount and noticed that a van was
parked in the driveway. He returned and observed that the van’s rear doors were
open and he saw two men walking around the house. Upon seeing Reeves, the two
men ran back to the van, pulled onto Flood Store Road, and took off. Reeves was,
however, able to get the van’s license plate number before he lost sight of it.
Detective Jack Sewell (“Detective Sewell”) with the Edgecombe County
Sheriff’s Office was assigned as the lead investigator on the case. Upon looking into
the license plate number of the van, Detective Sewell determined that it was owned
by H & J Auto Sales Company (”H & J”). Detective Sewell drove to H & J and spoke
with the owner who informed him that the van in question had been rented to
Shirelanda Clark (“Clark”).
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Opinion of the Court
Detective Sewell reached out to Clark who informed him that she, in turn, had
rented the van to Defendant and Dezmon Bullock (“Bullock”). She stated that
Defendant had paid her $35.00 to use the van and that he was going to return it to
her on 8 May 2014. Detective Sewell asked Clark to call him if Bullock or Defendant
contacted her again.
On 8 May 2014, Clark reached out to Detective Sewell and told him that
Defendant had called her and asked to rent the van for a few more days and that he
had arranged to meet her close to the car lot shortly. Detective Sewell drove to the
lot to meet with Clark and called Officer Jill Tyson (“Officer Tyson”) to assist him as
backup.
Defendant arrived and parked the van around the corner from the car lot and
walked over to Clark while Bullock, who had accompanied Defendant, remained in
the vehicle. Officer Tyson parked her patrol vehicle behind the van while Detective
Sewell confronted Defendant in the parking lot.
Detective Sewell, Clark, and Defendant walked over to the van, and while they
were approaching, Bullock exited the vehicle. Defendant, Clark, and Bullock all gave
Detective Sewell and Officer Tyson permission to search the van. Detective Sewell
and Officer Tyson began searching the vehicle and discovered, among other items, a
new basketball goal still in its box which Defendant claimed ownership of, for which
he said he had lost the receipt.
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STATE V. RICE
Opinion of the Court
After claiming ownership of the basketball goal, Defendant suddenly and
abruptly stated that he had an appointment and had to leave. Defendant then left
the area leaving his personal property — including the basketball goal — behind.
Officer Tyson continued her consent search of the van and found Bryant’s
Smith & Wesson underneath the driver’s seat of the vehicle. She also discovered
several cameras, an alarm clock, assorted pieces of a gaming system, cigars, and a set
of scales in the van. Officer Tyson then found Boswell’s Kel-Tec underneath the front
passenger seat.
Warrants were issued and Defendant was arrested. On 8 September 2014,
Defendant was indicted on charges of breaking and entering Boswell’s residence,
larceny after breaking and entering, and possession of a stolen firearm. On 8 June
2015, a superseding indictment was filed in relation to these charges. On 13 October
2014, Defendant was also indicted for possession of a stolen firearm in connection
with Bryant’s Smith & Wesson. A superseding indictment as to this charge was also
subsequently filed on 8 June 2015.
A jury trial was held before the Honorable Alma L. Hinton in Edgecombe
County Superior Court on 23 February 2016 and 24 February 2016. At trial,
Defendant moved at the close of the State’s evidence and at the close of all of the
evidence to dismiss the charges of possession of stolen goods on the ground that he
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Opinion of the Court
did not constructively possess either of the stolen firearms. The trial court denied
Defendant’s motions.
The jury found Defendant guilty of both counts of felonious possession of stolen
goods as to the firearms and acquitted Defendant of the felony breaking and entering
and felony larceny charges. The trial court sentenced Defendant to consecutive
sentences of 6 to 17 months imprisonment. Defendant gave oral notice of appeal in
open court.
Analysis
Defendant argues on appeal that the trial court erred in denying his motions
to dismiss the possession of stolen goods charges. Specifically, he contends that the
State failed to present sufficient evidence to establish that he constructively
possessed either the Kel-Tec or the Smith & Wesson that were found in the van he
was renting. We disagree.
The trial court’s denial of a motion to dismiss is reviewed
de novo on appeal. Upon 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
defendant’s being the perpetrator of such offense. If so, the
motion is properly denied.
State v. Pressley, 235 N.C. App. 613, 616, 762 S.E.2d 374, 376 (internal citations and
quotation marks omitted), disc. review denied, 367 N.C. 829, 763 S.E.2d 382 (2014).
Furthermore, “[w]hen ruling on a motion to dismiss for insufficient evidence, the trial
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Opinion of the Court
court must consider the record evidence in the light most favorable to the State,
drawing all reasonable inferences in the State’s favor.” State v. Worley, 198 N.C. App.
329, 333, 679 S.E.2d 857, 861 (2009).
It is well settled that:
The essential elements of felonious possession of stolen
property are: (1) possession of personal property, (2) which
was [feloniously stolen], (3) the possessor knowing or
having reasonable grounds to believe the property to have
been [feloniously stolen], and (4) the possessor acting with
a dishonest purpose.
State v. McQueen, 165 N.C. App. 454, 459, 598 S.E.2d 672, 676 (2004), disc. review
denied, 359 N.C. 285, 610 S.E.2d 385 (2005). “Possession of stolen goods may be
either actual or constructive.” State v. Phillips, 172 N.C. App. 143, 146, 615 S.E.2d
880, 882 (2005). Our Supreme Court has maintained that “[a] defendant
constructively possesses contraband when he or she has the intent and capability to
maintain control and dominion over it.” State v. Miller, 363 N.C. 96, 99, 678 S.E.2d
592, 594 (2009) (citation and quotation marks omitted).
Here, Defendant argues that because he did not have exclusive control over the
van — given that Bullock also had the ability to control the vehicle — he cannot have
constructively possessed the stolen Kel-Tec and Smith & Wesson without other
incriminating circumstances. While Defendant is correct that he did not have
exclusive possession of the van as he did, in fact, possess it jointly with Bullock, there
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Opinion of the Court
were other incriminating circumstances that would allow a determination that
Defendant constructively possessed the stolen firearms.
We have consistently maintained that “unless a defendant has exclusive
possession of the place where the contraband is found, the State must show other
incriminating circumstances sufficient for the jury to find a defendant had
constructive possession.” State v. Hudson, 206 N.C. App. 482, 489-90, 696 S.E.2d 577,
583 (citation, quotation marks, and brackets omitted), disc. review denied, 364 N.C.
619, 705 S.E.2d 360 (2010).
Incriminating circumstances relevant to constructive
possession include evidence that defendant: (1) owned
other items found in proximity to the contraband; (2) was
the only person who could have placed the contraband in
the position where it was found; (3) acted nervously in the
presence of law enforcement; (4) resided in, had some
control of, or regularly visited the premises where the
contraband was found; (5) was near contraband in plain
view; or (6) possessed a large amount of cash.
Evidence of conduct by the defendant indicating knowledge
of [contraband] or fear of discovery is also sufficient to
permit a jury to find constructive possession. Our
determination of whether the State presented sufficient
evidence of incriminating circumstances depends on the
totality of the circumstances in each case. No single factor
controls, but ordinarily the questions will be for the jury.
State v. Alston, 193 N.C. App. 712, 716, 668 S.E.2d 383, 386-87 (2008) (internal
citations, quotation marks, and emphasis omitted), aff’d per curiam, 363 N.C. 367,
677 S.E.2d 455 (2009).
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Opinion of the Court
At trial, Detective Sewell testified as follows:
Q. So what happened after you took down their
personal information?
A. I asked Ms. Clark and Mr. Bullock and Mr. Rice
if it was okay if I conducted a search of the inside of the
van. They said, okay. We opened up the hatchback to the
back of the van and located several items on the inside.
Q. Do you have any recollection about what type of
items they were?
A. Yes, there was a basketball goal set still in a box,
several cameras, an Ipod, some chisels, other items inside
the van. I started questioning the subjects about the items
inside the van.
Q. And did Mr. Rice make any comment about any
of the property inside the van?
A. Mr. Rice said he had bought the basketball goal
at a Walmart, but had no receipt. It was still in the box.
Q. And without saying anything that Mr. Bullock
may or may not have said, did you ask him about anything
inside the van as well?
A. Yes, sir, I did.
Q. What happened next?
A. Mr. Rice said he had to leave, that he had an
appointment to make and he needed to leave. Well, at that
time, I didn’t have any evidence to charge him with a crime,
no evidence of a crime so I let him go.
Q. So at that initial point, he wasn’t under arrest.
A. He was not under arrest.
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Opinion of the Court
Q. And he did, in fact, leave.
A. He did.
Here, we are satisfied that multiple indications of incriminating circumstances
were present so as to survive Defendant’s motion to dismiss. The State presented
evidence of (1) Defendant’s nervous disposition; (2) the fact that Defendant admitted
ownership of the basketball goal in proximity to the stolen firearms; (3) had control
over the van in which the stolen property was found by way of his agreement with
Clark to rent the van for $35.00; and (4) exhibited irrational conduct tending to
indicate he was fearful that the firearms would be discovered during the course of the
search — specifically his sudden and abrupt departure from the area when Detective
Sewell and Officer Tyson began the search of the van for an appointment he stated
he had just remembered, in the process leaving behind his personal property for
which he did not return.
A rational juror could have concluded that Defendant suddenly leaving the
area as soon as the search commenced amounted to a fearful apprehension on his
part that Detective Sewell or Officer Tyson would ultimately locate the stolen
firearms in the van which he controlled. See Hudson, 206 N.C. App. at 490, 696
S.E.2d at 583 (“Examples of incriminating circumstances include a defendant’s
nervousness or suspicious activity in the presence of law enforcement.”).
Furthermore, even assuming that Defendant did, in fact, suddenly remember that he
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had an actual bona fide appointment, we note that otherwise innocent explanations
for suspicious and incriminating behavior do not entitle Defendant to the granting of
his motion to dismiss. See State v. Tirado, 358 N.C. 551, 582, 599 S.E.2d 515, 536
(2004) (“Circumstantial evidence may withstand a motion to dismiss and support a
conviction even when the evidence does not rule out every hypothesis of innocence.
The jurors must decide whether the evidence satisfies them beyond a reasonable
doubt that the defendant is guilty.” (internal citation, quotation marks, and
alteration omitted)), cert. denied, 544 U.S. 909, 161 L. Ed. 2d 285 (2005). The State
presented sufficient evidence that Defendant constructively possessed the stolen
firearms.
Because Defendant limits his argument on appeal exclusively as to whether
the State established that he constructively possessed the firearms, we need not
address the remaining elements of the offense of possession of stolen goods.
Conclusion
For the reasons stated above, we conclude that Defendant received a fair trial
free from error.
NO ERROR.
Judges STROUD and DILLON concur.
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