              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.
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                                   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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      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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      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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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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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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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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                   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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