              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA17-193

                               Filed: 7 November 2017

Guilford County, No. 13 CRS 75269

STATE OF NORTH CAROLINA, Plaintiff,

             v.

ROBERT LEVON JONES, Defendant.


      Appeal by defendant from judgments entered 23 September 2016 by Judge R.

Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals 6

September 2017.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Olga E.
      Vysotskaya de Brito, for the State.

      Anne Bleyman for defendant-appellant.


      ZACHARY, Judge.


      Robert Levon Jones (defendant) appeals from judgments entered upon his

convictions of misdemeanor assault inflicting serious injury and robbery with a

dangerous weapon. On appeal, defendant argues that his convictions were obtained

“based upon evidence that was unfairly prejudicial and [was] admitted in violation of

the principle[s] of double jeopardy [and] collateral estoppel.” We have carefully

considered defendant’s argument in light of the record on appeal and the applicable

law, and conclude that defendant is not entitled to relief on the basis of this argument.
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                                  Opinion of the Court



                           Factual and Procedural Background

      On 9 December 2013, defendant was indicted for the offenses of armed robbery

and felony assault with a deadly weapon inflicting serious injury.     The charges

against defendant were tried before the trial court and a jury beginning on 19

September 2016. Defendant did not testify or present evidence at trial. The State’s

evidence is summarized, in relevant part, as follows.

      James Kelly testified that he was 69 years old and owned the Small Luxuries

jewelry store in High Point, North Carolina. A Biscuitville restaurant was located

approximately 150 to 200 yards from his store. On 27 March 2013, Mr. Kelly noticed

a gold car without a license plate in the parking lot, with two African-American men

in the car. At approximately 10:00 a.m., “three black men” entered the store wearing

hooded sweatshirts. The men, all of whom were armed with handguns, hit Mr. Kelly

on the head with metal objects that he assumed were their weapons. The men fled

from the store after stealing jewelry that Mr. Kelly estimated to have a value of

$30,000. Some of the stolen jewelry was later returned by the police. Mr. Kelly was

treated for injuries sustained in the robbery, including stitches over one eye and a

fractured skull. When law enforcement officers showed Mr. Kelly a photographic

lineup, he was unable to identify any of the men who had robbed his store.

      Emily Kelley testified that on 27 March 2013 she worked at the Biscuitville

restaurant near Mr. Kelly’s store. Law enforcement officers questioned her shortly



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after the jewelry store was robbed, and she told them that three African-American

men had eaten at Biscuitville that morning, and that one of the men had paid with a

debit card. At trial Ms. Kelley testified that she did not recognize defendant. John

Griffiths, the regional vice-president for Wood Forest National Bank, identified bank

documents showing a transaction in defendant’s checking account for a purchase at

Biscuitville on 27 or 28 March 2013.

      Kristy Riojas testified that on 27 March 2013 she worked at a pawn shop

named Got Gold, that purchased gold, silver, and jewelry. Ms. Riojas described the

general business practices of Got Gold as follows:

             [MS. RIOJAS]: So, a customer would come in and show us
             what they wanted to sell. We would test it, make sure if it
             was real silver, gold. We would then weigh it, give them a
             price. If they accepted the price, we would ask for their ID,
             make a photocopy of it, write down the description of the
             gold that was sold, ask for their signature. And then we
             would just put the - the jewelry in a Ziploc bag and staple
             it onto the paper and file it. And then we would then put it
             in the computer, send it off to the police department.

      Ms. Riojas identified a receipt, which was introduced over defendant’s

objection, for a transaction that took place on 27 March 2013, in which a customer

sold coins and jewelry. This exhibit included a list of the pawned items and a copy of

a driver’s license issued to defendant.

      High Point Police Detective Eric Berrier identified a stolen property receipt

that the Police Department provided to Got Gold upon seizure of stolen property.



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Winston-Salem Police Detective Richard Workman testified that in 2013 he

investigated crimes involving pawn shops and dealers in precious metals. On 28

March 2013, Detective Workman reviewed a sales receipt from Got Gold and noted

certain items of jewelry that had been sold, including a coin stolen from Small

Luxuries. High Point Police Detective Christopher Walainin testified that he took a

statement from Mr. Kelly that generally corroborated Mr. Kelly’s trial testimony. An

officer with the K-9 unit used a dog to trace a trail of jewelry on the ground between

the jewelry store and Biscuitville.

      On 23 September 2016, the jury returned verdicts finding defendant guilty of

robbery with a dangerous weapon and of misdemeanor assault inflicting serious

injury. The trial court sentenced defendant to a term of 75 days’ imprisonment for

assault inflicting serious injury, and a consecutive sentence of 73 to 100 months’

imprisonment for robbery with a dangerous weapon. Defendant gave notice of appeal

in open court.

                                        Collateral Estoppel

      As discussed above, Ms. Riojas testified without objection concerning the

general business practices of Got Gold, including the pawn shop’s practice of

requiring a seller to sign a form listing the items for sale and providing a copy of an

ID, such as a driver’s license. On appeal, defendant argues that the trial court

committed reversible error by admitting into evidence, over his objection, a receipt



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showing that defendant pawned jewelry at Got Gold soon after Small Luxuries was

robbed. The receipt contained an itemized list of the items defendant pawned, a copy

of defendant’s driver’s license, and defendant’s signature. We conclude that this

argument lacks merit.

      “ ‘When a defendant objects to the admission of evidence, we consider, whether

the evidence was admissible as a matter of law, and if so, whether the trial court

abused its discretion in admitting the evidence.’ ” State v. Thompson, __ N.C. App. __,

__, 792 S.E.2d 177, 180-81 (2016) (quoting State v. Blackwell, 207 N.C. App. 255, 257,

699 S.E.2d 474, 475 (2010)), disc. rev. denied, __ N.C. __, 795 S.E.2d 366 (2017). In

this case, defendant argues that the pawnshop ticket was not admissible, on the

grounds that prior to the trial of this matter, defendant was acquitted by a Forsyth

County jury on a charge of obtaining property by false pretenses, based on defendant’s

pawning the jewelry at Got Gold. Defendant contends that upon his acquittal of the

charge of obtaining property by false pretenses, the State was collaterally estopped

from introducing the pawn shop receipt at his Guilford County trial for armed robbery

and felony assault, in order to show that defendant was in possession of items stolen

from the jewelry store shortly after the robbery. “Whether the doctrine of collateral

estoppel is applicable and bars a specific claim or issue is a question of law subject to

de novo review.” Powers v. Tatum, 196 N.C. App. 639, 642, 676 S.E.2d 89, 92 (2009)

(citing Bluebird Corp. v. Aubin, 188 N.C. App. 671, 678, 657 S.E.2d 55, 61 (2008)).



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      The doctrine of collateral estoppel “means simply that when an issue of

ultimate fact has once been determined by a valid and final judgment, that issue

cannot again be litigated between the same parties in any future lawsuit.” Ashe v.

Swenson, 397 U.S. 436, 443, 25 L. Ed. 2d 469, 475 (1970). “In Benton v. Maryland,

395 U.S. 784, [23 L. Ed. 2d 707 (1969)] the Court held that the Fifth Amendment

guarantee against double jeopardy is enforceable against the States through the

Fourteenth Amendment.” Ashe, 397 U.S. at 437, 25 L. Ed. 2d at 471. In Ashe, “[t]he

doctrine of collateral estoppel was held to be a part of the constitutional guarantee

against double jeopardy[.]” State v. Edwards, 310 N.C. 142, 145, 310 S.E.2d 610, 613

(1984) (citing Ashe).

      The legal implications of a criminal defendant’s acquittal of a charge have been

considered in a variety of procedural contexts. In Ashe:

             The [Supreme] Court was asked to determine whether the
             State may prosecute a defendant a second time for armed
             robbery where the jury at defendant’s first trial found the
             State did not meet its burden of proof on the issue of
             identifying defendant as one of the perpetrators. In Ashe,
             the Court held that prior acquittal of an essential issue
             precludes the State, on double jeopardy grounds, from
             trying defendant on that issue again[.] . . . “[W]hen an issue
             of ultimate fact has once been determined by a valid and
             final judgment, that issue cannot again be litigated
             between the same parties in any future lawsuit.”

State v. Adams, 347 N.C. 48, 60-61, 490 S.E.2d 220, 226 (1997) (quoting Ashe, 397

U.S. at 443, 25 L. Ed. 2d at 475). Ashe thus addressed the issue of whether a



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defendant who was acquitted of an offense could be prosecuted for a related crime.

See also, e.g., Edwards, 310 N.C. at 145, 310 S.E.2d at 612-13 (addressing defendant’s

argument that “his acquittal on the larceny charge in the first trial determined

matters of fact in his favor so as to collaterally estop the State from now proving him

guilty of breaking or entering with the intent to commit larceny.”).

      In the present case, defendant does not dispute that he could be prosecuted for

the robbery of the jewelry store, notwithstanding his acquittal of obtaining property

by false pretenses, a charge based on defendant’s pawning items taken in the robbery.

Instead, the present case raises the issue of the admissibility of evidence in a criminal

trial where the same evidence was also pertinent to an earlier trial in which the

defendant was acquitted. This issue has also been analyzed in several contexts. In

State v. Scott, 331 N.C. 39, 413 S.E.2d 787 (1992), our Supreme Court held that:

             [The issue is] whether the State may introduce in a
             subsequent criminal trial evidence of a prior alleged
             offense for which defendant had been tried and acquitted
             in an earlier trial. We hold that where the probative value
             of such evidence depends upon defendant’s having in fact
             committed the prior alleged offense, his acquittal of the
             offense in an earlier trial so divests the evidence of
             probative value that, as a matter of law, it cannot outweigh
             the tendency of such evidence unfairly to prejudice the
             defendant. Such evidence is thus barred by N.C. R. Evid.
             403.

Scott, 331 N.C. at 41, 413 S.E.2d at 788. Scott was thus based upon analysis of N.C.

R. Evid., Rule 403, which provides that relevant evidence may be excluded “if its



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probative value is substantially outweighed by the danger of unfair prejudice[.]”

Other cases have addressed the admissibility of evidence related to an offense of

which the defendant was acquitted as evidence of the defendant’s prior bad acts,

pursuant to N.C. R. Evid. Rule 404(b) (2015). See State v. Agee, 326 N.C. 542, 391

S.E.2d 171 (1990).

      In this case, the pawn shop receipt was not introduced as evidence of a prior

bad act, but as circumstantial evidence of defendant’s guilt; in addition, defendant

does not challenge its general admissibility or argue that the pawn shop ticket should

have been excluded under N.C. R. Evid. Rule 403. Defendant instead argues that its

admission was barred by the doctrine of collateral estoppel. In State v. Bell, 164 N.C.

App. 83, 594 S.E.2d 824 (2004), we held that:

             [T]his issue is governed by Dowling v. United States, 493
             U.S. 342, 107 L. Ed. 2d 708 . . . (1990). In Dowling, the
             United States Supreme Court noted: . . . “The issue is the
             inadmissibility of [evidence relating to an alleged crime
             that the defendant had previously been acquitted of
             committing].” Id. at 347, 107 L. Ed. 2d at 717[.] . . . [T]he
             Court held that evidence is inadmissible under the Double
             Jeopardy Clause only when it falls within the scope of the
             collateral estoppel doctrine. That doctrine provides that
             “when an issue of ultimate fact has once been determined
             by a valid and final judgment, that issue cannot again be
             litigated between the same parties in any future lawsuit.”
             Id. at 347, 107 L. Ed. 2d at 717[.] . . . “The determinative
             factor is not the introduction of the same evidence [as
             offered in the first trial,] but rather whether it is absolutely
             necessary to defendant’s conviction [in the second trial]
             that the second jury find against defendant on an issue
             upon which the first jury found in his favor.”


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Bell, 164 N.C. App. at 89-90, 594 S.E.2d at 828 (quoting Edwards at 145, 310 S.E.2d

at 613) (alterations in original). We will next consider whether the trial court erred

by allowing the State to introduce the pawn shop receipt, applying the principles

discussed above.

                                           Analysis

      Preliminarily, we note that the State argues on appeal that defendant failed to

preserve for appellate review the issue of whether his acquittal of obtaining property

by false pretenses barred admission of the pawn shop ticket, on the grounds that

defendant failed to produce documentation of his earlier acquittal. We note that at

trial defendant repeatedly stated that he had been acquitted of obtaining property by

false pretenses, and that the prosecutor did not dispute defendant’s assertion. We

also observe that this Court could take judicial notice of the proceedings of

defendant’s trial for obtaining property by false pretenses. We conclude that it is

unnecessary to do so because, assuming arguendo that defendant has accurately

characterized the result of the prior trial as an acquittal, the trial court did not err

by allowing the State to introduce the pawn shop ticket in the instant case.

      The pawnshop receipt was introduced as evidence of defendant’s guilt of

robbery with a dangerous weapon pursuant to the doctrine of recent possession:

             The doctrine of recent possession allows the jury to infer
             that the possessor of recently stolen property is guilty of
             taking it. The doctrine of recent possession applies where


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              the State proves (1) that the property was stolen; (2) that
              the defendant had possession of the stolen property, which
              means that he was aware of its presence and, either by
              himself or collectively with others, had both the power and
              intent to control its disposition or use; and (3) that
              defendant’s possession of the stolen property occurred so
              soon after it was stolen and under such circumstances that
              it is unlikely he obtained possession honestly.

State v. Mohamed, 205 N.C. App. 470, 489, 696 S.E.2d 724, 738 (2010) (citation

omitted). Defendant does not dispute that the State produced evidence that defendant

pawned stolen jewelry shortly after the robbery. Defendant contends, however, that

his acquittal of the offense of obtaining property by false pretenses established that

he had been “acquitted of being the perpetrator in the pawning.” We disagree.

       Our Supreme Court “has previously set out the elements of obtaining property

by false pretenses: ‘(1) a false representation of a subsisting fact or a future fulfillment

or event, (2) which is calculated and intended to deceive, (3) which does in fact

deceive, and (4) by which one person obtains or attempts to obtain value from

another.’ ” State v. Parker, 354 N.C. 268, 283-84, 553 S.E.2d 885, 897 (2001) (quoting

State v. Cronin, 299 N.C. 229, 242, 262 S.E.2d 277, 286 (1980)). “An essential element

of the offense is that the defendant acted knowingly with the intent to cheat or

defraud. Moreover, the false pretense need not come through spoken words, but

instead may be by act or conduct.” Parker, 354 N.C. at 284, 553 S.E.2d at 897

(citations omitted). Evidence that a defendant knowingly pawned stolen goods is

sufficient to support a conviction for obtaining property by false pretenses, with the


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false representation being the defendant’s representation that he owned, or was

entitled to dispose of, the property being pawned. State v. Parker, 146 N.C. App. 715,

719, 555 S.E.2d 609, 612 (2001).

      The burden of establishing that an issue is barred by collateral estoppel is on

the party relying thereon. Bluebird, 188 N.C. App. at 678, 657 S.E.2d at 61. In order

for collateral estoppel to apply, a party must establish the following:

             (1) [T]he issues must be the same as those involved in the
             prior action, (2) the issues must have been raised and
             actually litigated in the prior action, (3) the issues must
             have been material and relevant to the disposition of the
             prior action, and (4) the determination of the issues in the
             prior action must have been necessary and essential to the
             resulting judgment.

State v. Summers, 351 N.C. 620, 623, 528 S.E.2d 17, 20 (2000) (citation omitted). In

this case, we conclude that defendant cannot establish that his acquittal of obtaining

property by false pretenses represented a determination by the jury that he was not

in possession of stolen property shortly after it was taken.

      The doctrine of recent possession allows a jury to infer a defendant’s guilt based

upon the defendant’s bare possession of stolen goods shortly after a robbery; there is

no requirement that the defendant make a false representation about the goods,

attempt to obtain something of value, or deceive another party about the defendant’s

ownership of the stolen items. We conclude that the offense of obtaining property by

false pretenses has only one element in common with the doctrine of recent possession



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-- that the property in the defendant’s possession was stolen. It is true that the basis

of defendant’s acquittal of obtaining property by false pretenses might have been the

jury’s determination that the State had failed to prove beyond a reasonable doubt

that the goods pawned by the defendant were stolen. However, the jury may also

have acquitted defendant based on insufficient evidence that (1) the defendant knew

that the items were stolen, (2) the defendant misrepresented his ownership or

dominion over the pawned items, (3) the defendant intended to mislead the employees

of the pawn shop, (4) the pawn shop employee was in fact deceived by the defendant

(as opposed to being complicit in the sale of stolen property); or that (5) the defendant

was paid for pawning the items.

      In the context of whether a subsequent prosecution is barred by a defendant’s

prior acquittal of a related offense, our Supreme Court has stated:

             Under the doctrine of collateral estoppel, an issue of
             ultimate fact, once determined by a valid and final
             judgment, cannot again be litigated between the same
             parties in any future lawsuit. Subsequent prosecution is
             barred only if the jury could not rationally have based its
             verdict on an issue other than the one the defendant seeks
             to foreclose.

Edwards at 145, 310 S.E.2d at 613. (emphasis in original). We conclude, upon

comparison of the elements of a charge of obtaining property by false pretenses and

the doctrine of recent possession, that defendant has failed to show that his acquittal

of the crime of obtaining property by false pretenses necessarily required the jury to



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find that there was insufficient evidence that defendant possessed stolen property.

Moreover, in a prosecution for obtaining property by false pretenses, the jury is not

required to determine whether the defendant possessed stolen property shortly after

it was taken from its owner. As a result, defendant’s acquittal of the charge of

obtaining property by false pretenses did not bar the State from introducing evidence

of the pawn shop ticket, in order to show defendant’s recent possession of items stolen

in the robbery.

                                          Conclusion

       Thus, for the reasons discussed above, we conclude that the trial court did not

err by allowing the State to introduce a pawn shop receipt at trial.        As this is

defendant’s only appellate argument, we further conclude that defendant had a fair

trial, free of reversible error.

       NO ERROR.

       Judges CALABRIA and MURPHY concur.




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