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State v. Quinones

Court of Appeals of North Carolina

March 20, 2018

THE STATE OF NORTH CAROLINA,
v.
TONY LUIS QUINONES, Defendant.

          Heard in the Court of Appeals 5 October 2017.

         Appeal by defendant from judgment entered 26 October 2016 by Judge Robert H. Hobgood in Wake County No. 16CRS207891 Superior Court.

          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 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.

         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 different result." State v. Jordan, 333 N.C. 431, ...


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