An unpublished opinion of the North Carolina Court of Appeals does not constitute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
                                      -2-
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.
                                              -3-
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.
                                             -4-
       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
                                          -5-
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
                                      -6-
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
                                     -8-
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
                                           -9-
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
                                            -10-
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.
                                    -11-
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).
