               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-415

                                Filed: 20 March 2018

Wake County, No. 16CRS207891

THE STATE OF NORTH CAROLINA,

              v.

TONY LUIS QUINONES, Defendant.


        Appeal by defendant from judgment entered 26 October 2016 by Judge Robert

H. Hobgood in Wake County Superior Court. Heard in the Court of Appeals 5 October

2017.


        Attorney General Joshua H. Stein, by Assistant Attorney General Andrew L.
        Hayes, for the State.

        Anne Bleyman for defendant-appellant.


        BERGER, Judge.

        On October 26, 2016, a Wake County jury found Tony Luis Quinones

(“Defendant”) guilty of possession of a stolen motor vehicle. Defendant was sentenced

to nine to twenty months in prison, and appeals arguing that the jury instruction

provided by the trial court contained an incorrect statement of law. We disagree.

                         Factual and Procedural Background

        On April 20, 2016, Raleigh Police Officer Shane Pekich observed a white Lexus

SUV near the intersection of South State Street and Bragg Street. Officer Pekich

determined that the vehicle matched the description of a white Lexus SUV that had
                                 STATE V. QUINONES

                                  Opinion of the Court



been reported stolen earlier that day. The vehicle approached the intersection with

the right turn signal activated; however, the vehicle turned left onto South State

Street and accelerated at a high rate of speed past Officer Pekich. Officer Pekich saw

the vanity license plate on the white Lexus, which matched the personalized license

plate of the white Lexus that had been reported stolen.

      Officer Pekich pursued the white Lexus and radioed for assistance. The white

Lexus was traveling approximately sixty miles per hour in a thirty-five mile-per-hour

zone. The vehicle came to a stop after running a red light and nearly being struck by

another vehicle.   Officer Pekich observed an individual dressed in white on the

driver’s side of the car fleeing the scene. Defendant was wearing a white t-shirt when

he was apprehended and arrested shortly after abandoning the car and fleeing on

foot. An officer at the scene observed that only the driver’s door had been left open.

      Defendant asked Officer Pekich if they caught anyone else, and gave the

description of another individual he contended was involved in the theft of the

automobile. Defendant also described the clothing the other individual had on, which

included a “black shirt or black hoodie.” Officers spoke with the other individual who

did in fact have on a black shirt, but he denied being in the white Lexus. Although

Defendant’s description matched the other individual, neither the description nor the

other individual’s appearance were consistent with the officer’s observation of a

person wearing a white t-shirt fleeing the scene.



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                                    Opinion of the Court



       Defendant appeals his conviction for possession of a stolen motor vehicle,

asserting that the jury instructions contained an incorrect statement of law

concerning the element of possession. Defendant failed to object to the purported

instructional error at trial.

                                   Standard of Review

       “In order to preserve a question for appellate review, a party must have

presented the trial court with a timely request, objection or motion, stating the

specific grounds for the ruling sought if the specific grounds are not apparent.” State

v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991); see also N.C.R. App. P.

10(a)(1) (2017).    The North Carolina Supreme Court “has elected to review

unpreserved issues for plain error when they involve either (1) errors in the judge’s

instructions to the jury, or (2) rulings on the admissibility of evidence.” State v.

Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). Plain error arises when the

error is “ ‘so basic, so prejudicial, so lacking in its elements that justice cannot have

been done.’ ” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting

United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S.

1018, 74 L. Ed. 2d. 513 (1982)).

       “Under the plain error rule, defendant must convince this Court not only that

there was error, but that absent the error, the jury probably would have reached a




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                                   Opinion of the Court



different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993)

(citation omitted).

             The plain error standard requires a defendant to
             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. . . . For plain error
             to be found, it must be probable, not just possible, that
             absent the instructional error the jury would have returned
             a different verdict.

State v. Juarez, 369 N.C. 351, 358, 794 S.E.2d 293, 299-300 (2016) (internal citations

and quotation marks omitted).

                                       Analysis

       Defendant first contends that the jury instructions contained an incorrect

statement of law concerning the element of possession which shifted the burden of

proof from the State to Defendant. We disagree.

      “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), cert. denied, 418 U.S. 905, 41 L. Ed. 2d 1153 (1974) (citations omitted).

“It is the duty of the trial court to instruct the jury on all substantial features of a

case raised by the evidence.” State v. Shaw, 322 N.C. 797, 803, 370 S.E.2d 546, 549

(1988) (citation omitted).



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                                   Opinion of the Court



      A defendant may be convicted of possession of a stolen motor vehicle if the

State proves that individual is in possession of a vehicle that he knows or has reason

to believe is stolen or unlawfully taken. N.C. Gen. Stat. § 20-106 (2017). Evidence

that a defendant is operating a stolen vehicle is sufficient to establish possession.

State v. Suitt, 94 N.C. App. 571, 574, 380 S.E.2d 570, 572 (1989). Here, the trial court

instructed the jury, in relevant part, as follows:

                    Possession of a vehicle may be either actual or
             constructive. A person has actual possession of a vehicle if
             the person is aware of its presence, is in the car, such as
             driving, and has both the power and intent to control its
             disposition or use.
                    A person has constructive possession of a vehicle if
             the person is aware of its presence and has both the power
             and intent to control its disposition or use.
                    A person's awareness of the presence of the vehicle
             and the person's power and intent to control its disposition
             or use may be shown by direct evidence or may be inferred
             from the circumstances.
                    If you find beyond a reasonable doubt that a white
             Lexus SUV vehicle was found in close physical proximity
             to the defendant, that would be a circumstance from which,
             together with other circumstances, you may infer that the
             defendant was aware of the presence of the vehicle and had
             the power and intent to control its disposition or use.
                    However, the defendant's physical proximity, if any,
             to the vehicle does not by itself permit an inference that the
             defendant was aware of its presence or had the power or
             intent to control its disposition or use.
                    Such an inference may be drawn only from this and
             other circumstances which you find from the evidence
             beyond a reasonable doubt.

(Emphasis added).



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                                   Opinion of the Court



      The trial court’s instruction “is in the car, such as driving” relates to the theory

of actual possession. Moreover, the wording by the trial court is consistent with the

evidence that the driver’s door was left open and that officers witnessed an individual

in a white t-shirt fleeing from the driver’s side of the car. The trial court correctly

instructed the jury that, based upon the evidence presented in this case, the

possession element could be satisfied if the jury found Defendant was operating the

vehicle. When read as a whole, the instruction provided an accurate statement of the

law arising from the evidence presented. Defendant’s contention that the instruction

shifted the burden of proof from the State is without merit.

      Defendant correctly asserts that merely being in that stolen vehicle is not

sufficient, standing alone, to satisfy the element of possession. See State v. Franklin

and State v. Hughes, 16 N.C. App. 537, 540-41, 192 S.E.2d 626, 628 (1972). In that

case, Defendant Hughes’ conviction was overturned because he was simply a

passenger in the stolen vehicle. Id. This Court noted that there was no evidence that

Hughes tried to flee or otherwise acted in concert with co-defendant Franklin. Id.

      Here, the evidence was sufficient for the jury to infer that Defendant operated

the stolen vehicle, and was not merely a passenger. The State presented sufficient

evidence that an individual wearing a white shirt was fleeing from the driver’s side

of the Lexus after the car was abandoned, and the driver’s door was the only door left

open. Officers maintained almost constant visual contact with Defendant as he was



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                                 Opinion of the Court



fleeing. Defendant was arrested wearing a white t-shirt, and never denied being

inside the automobile. Thus, the evidence tended to show that Defendant was more

than merely a passenger in the stolen vehicle.

      Moreover, Defendant identified another individual as the culprit, but the

description of the clothes provided by Defendant and confirmed by law enforcement

did not match the white t-shirt they observed fleeing the scene and worn by

Defendant.     Thus, there was sufficient evidence presented by the State that

Defendant had actual possession of the stolen vehicle. Even if, assuming arguendo,

the instruction was erroneous, Defendant has not demonstrated that absent the

purported error a different verdict was probable. See Juarez, 369 N.C. at 358, 794

S.E.2d at 299-300.

                                    Conclusion

      Defendant received a fair trial free from error. The trial court included a

phrase in the jury instructions that was consistent with the theory of actual

possession and the evidence presented at trial, and Defendant has failed to show

plain error.

      NO ERROR.

      Judges DAVIS and ZACHARY concur.




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