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State v. Larkin

Court of Appeals of North Carolina

November 18, 2014

STATE OF NORTH CAROLINA
v.
BILLY FRANK LARKIN, Defendant

Heard in the Court of Appeals September 9, 2014

Page 682

Attorney General Roy A. Cooper, III by Assistant Attorney General John F. Oates, Jr., for the State.

Brock & Meece, P.A. by C. Scott Holmes, for defendant-appellant.

STROUD, Judge. Chief Judge MCGEE and Judge BRYANT concur.

Page 683

Appeal by defendant from judgments entered on or about 19 September 2013 by Judge W. Allen Cobb, Jr. in Superior Court, New Hanover County, Nos. 11CRS053139, 11CRS053693, 11CRS053740.

OPINION

STROUD, Judge.

Billy Frank Larkin (" defendant" ) appeals from judgments entered upon jury verdicts finding him guilty of two counts of first-degree

Page 684

burglary, felonious larceny pursuant to burglary, felonious breaking or entering, and felonious larceny after breaking or entering, offenses arising from three separate incidents. Defendant argues that the trial court erred by (1) denying his motion to suppress evidence that resulted from a search of his vehicle; (2) instructing the jury on the doctrine of recent possession with respect to one of the incidents; and (3) denying his motion to sever the cases into three trials. Defendant also contends that insufficient evidence supports his convictions arising from one of the incidents. We find no error.

I. Background

A. Johnson Incident

Around 5:00 pm on 5 November 2010, Robbie Johnson left his photography equipment on a couch in his Carolina Beach condominium. This photography equipment included a 500 millimeter lens, a 70 to 200 millimeter lens, a 17 to 40 millimeter lens, and a Mark II-N camera. The following morning, on 6 November 2010, Johnson discovered that his photography equipment was missing from his condominium. That day, defendant sold a 500 millimeter lens, a 70 to 200 millimeter lens, a 17 to 40 millimeter lens, and a Mark II-N camera to a camera store in Raleigh.

On 8 November 2013, Johnson visited the Raleigh camera store after discovering that it had recently acquired photography equipment matching the description of his missing property. Johnson brought registration cards that contained the missing items' serial numbers. Johnson and the store manager discovered that the serial numbers of the photography equipment sold by defendant matched Johnson's serial numbers. The camera store returned all four items to Johnson.

B. Breese Incident

On 7 November 2010, Nancy Breese left her Bose CD changer and radio on a chest in her Kure Beach house. Breese earlier had recorded the serial numbers associated with the Bose CD changer and radio. Breese went to bed that night around 9:00 p.m. During the middle of the night, Breese heard noises and yelled, thinking it was her cat. When Breese rose from bed the next morning, she immediately noticed that her Bose CD changer and radio were missing.

On 7 April 2011, in an investigation unrelated to the Breese incident, police officers conducted a search of defendant's hotel room in Fayetteville and discovered a Bose CD changer and radio. The serial numbers of the Bose CD changer and radio matched the serial numbers recorded by Breese.

C. Madsen Incident

Around 11:00 p.m. on 7 November 2010, Don Madsen went to bed in his Carolina Beach condominium. Around 3:00 a.m., Madsen woke up and saw the shadow of a person. Madsen yelled, jumped out of bed, and chased the intruder. The intruder ran away from Madsen and onto Madsen's balcony, and Madsen pursued the intruder until he jumped off of Madsen's balcony and ran out of sight. Madsen did not get a good look at the intruder.

Madsen noticed that an envelope containing a set of keys was missing from his condominium. Madsen also noticed a pair of tennis shoes on his patio that were not his. One of the shoes had a car key tied in its laces. At 12:15 p.m. on 8 November 2010, Detective Humphries of the Carolina Beach Police Department (" CBPD" ) discovered a shoeprint in some sand outside Breese's house that, in his lay opinion, matched the soles of the shoes found on Madsen's patio.

D. Search of Defendant's Corvette

In April 2011, the Wrightsville Beach Police Department (" WBPD" ) seized defendant's Corvette in Fayetteville and transported it to an impound lot in Wilmington. This seizure was unrelated to any of the incidents described above. Officer James Carl Mobley told Detective Humphries that, while working for the WBPD, he had encountered defendant and remembered that defendant had worn a pair of tennis shoes with a Corvette key interlaced in his right shoe. On or about 20 April 2011, Detective Humphries obtained a search warrant for defendant's Corvette based upon information that he had received

Page 685

from the WBPD, and he tried the car key that had been interlaced in one of the shoes left on Madsen's patio in the seized Corvette. The key fit the Corvette, thus linking defendant to the key found in the shoes.

E. Course of Proceedings

On or about 27 June 2011, a grand jury indicted defendant for felonious breaking or entering and felonious larceny after breaking or entering in connection with the Johnson incident, first-degree burglary and felonious larceny pursuant to burglary in connection with the Breese incident, and first-degree burglary in connection with the Madsen incident. On or about 13 September 2013, defendant moved to suppress evidence resulting from the CBPD's search of his Corvette. On or about 14 September 2013, defendant moved to sever the charges into three trials. On 4 October 2013, nunc pro tunc for 16 September 2013, the trial court denied (1) defendant's motion to suppress after concluding that the State had proved that the CBPD would have inevitably discovered defendant's Corvette; and (2) defendant's motion to sever after finding that all three incidents occurred within a three-day span, within 2.5 miles of each other, and involved breaking into a personal beachfront residence to commit a larceny.

Defendant renewed his pretrial motion to sever during jury selection, and the trial court again denied it. At the close of all the evidence, defendant moved to dismiss all charges. The trial court denied the motion. On or about 19 September 2013, a jury found defendant guilty of all charges. The trial court sentenced defendant to two consecutive terms of 85 to 111 months' imprisonment. Defendant gave notice of appeal in open court.

II. Admission of Evidence

A. Standard of Review

Defendant first contends that the trial court committed plain error in admitting evidence obtained from the CBPD's search of defendant's Corvette. Although defendant moved to suppress this evidence before trial, defendant failed to object to its admission at trial and thus failed to preserve error. See State v. Stokes, 357 N.C. 220, 227, 581 S.E.2d 51, 56 (2003). But we may review for plain error the denial of a defendant's pretrial suppression motion, if the defendant specifically and distinctly argues on appeal that the trial court committed plain error. State v. Harwood, __ N.C.App. __, __, 727 S.E.2d 891, 896 (2012) (citing N.C.R. App. P. 10(a)(4)); Stokes, 357 N.C. at 227, 581 S.E.2d at 56.

For an appellate court to find plain error, it must first be convinced that, " absent the error, the jury would have reached a different verdict." State v. Reid, 322 N.C. 309, 313, 367 S.E.2d 672, 674 (1988) (citation omitted). " The defendant has the burden of showing that the error constituted plain error." Stat ...

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