Iii the Trial Court Erred to the Unfair Prejudice of Charles David Becton by Denying Defendant

No. COA06-75 TENTH DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA)

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VS.) From Wake County

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BENJAMIN HILLIARD,)

Defendant)

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QUESTIONS PRESENTED

I. DID THE TRIAL COURT ERR TO THE UNFAIR PREJUDICE OF BENJAMIN HILLIARD BY DENYING DEFENDANT’S MOTION TO DISMISS THE CHARGES IN 04 CRS 110490, FELONIOUS POSSESSION OF A STOLEN MOTOR VEHICLE?

II. DID THE TRIAL COURT ERR TO THE UNFAIR PREJUDICE OF BENJAMIN HILLIARD BY DENYING HIS MOTION TO DISMISS THE HABITUAL FELON INDICTMENT AND SENTENCING HIM AS A PRIOR RECORD LEVEL V, CLASS C HABITUAL FELON?

STATEMENT OF THE CASE

Benjamin Hilliard was arrested for the 3 December 2004 felony larceny of a 1971 Ford truck belonging to “Durham YMCA.” Rp 2. He was charged in a superceding indictment with felonious possession of a stolen motor vehicle, the same 1971 Ford truck, allegedly belonging to “YMCA of the Triangle, Inc. d/b/a Durham YMCA… .” Rp 7. A (superceding) indictment alleging habitual felon status was also returned against Mr. Hilliard. Rp 8. John McWilliam, a member of the North Carolina and Tenth District Bars, was appointed to represent the defendant. Rp 4.

Mr. Hilliard was tried before the Honorable Ronald L. Stephens and found guilty on 20 July 2005 of felonious possession of a stolen motor vehicle and guilty the next day of having the status of habitual felon. Rpp 13-14. Judge Stephens found a Prior Record Level V and sentenced Hilliard to serve 90 to 117 months in prison. Rpp 15-20. Notice of Appeal was given in open court and Appellate Entries eventually appointed the undersigned to perfect the appeal. Rpp 21-23.

This Honorable Court extended time for service of the transcript (Rp 48) and the Record, settled on 4 January 2006 (Rp 50) was filed with this Court on 13 January 2006 and docketed on 15 February 2006. Rp 1.

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

This appeal from a final order is presented pursuant to the provisions of N. C. Gen. Stat. 7A-27(b) and 15A-1442 upon errors committed at the trial level.

STATEMENT OF FACTS

Ben Hilliard was walking through a parking lot on Mechanical Boulevard in Raleigh when he was suddenly confronted and taken into custody by Deputy Anthony Locklear. Ben was transported by the officer to the parking compound of Quality Towing because Jonathan Lloyd, a tow truck driver, said he had seen the defendant walking along the fence at the Quality lot about eight minutes earlier. Lloyd and his ride-along girlfriend that night, Alicia Littmath, said Ben had been bent over behind a trash container when they towed a car to Quality. They testified that Ben then walked away along the company’s fenced-in yard. Vol. II, Tpp 30-37; 69-74.

A 1971 Ford truck containing catalytic converters belonging to Quality was found in their lot at an unspecified location. Vol. II, Tpp 41-42. The truck had been stolen from the Honeycutt Transmission service yard earlier that evening. A vehicle manager for YMCA of the Triangle, said the truck was used by their Durham branch.

Defendant was convicted and sentenced as indicated.

ARGUMENT

I. THE TRIAL COURT ERRED TO THE UNFAIR PREJUDICE OF BENJAMIN HILLIARD BY DENYING DEFENDANT’S MOTION TO DISMISS THE CHARGES IN 04 CRS 110490, FELONIOUS POSSESSION OF A STOLEN MOTOR VEHICLE.

ASSIGNMENT OF ERROR NO. 1, Record, Rp 49,

Record, Rpp 15-20; Transcript, Vol. III, Tpp 125; Tpp 139-141.

ASSIGNMENT OF ERROR NO. 2, Record, Rp 49,

Transcript, Vol. II, Tp 148.

STANDARD OF PROOF:

"In reviewing a motion to dismiss, `the trial court is to determine whether there is substantial evidence (a) of each essential element of the offenses charged, or of a lesser offense included therein, and (b) of defendant[] being the perpetrator of the offense.'" State v. Stancil, 146 N.C. App. 234, 244, 552 S.E.2d 212, 218 (2001), aff'd as modified, 355 N.C. 266, 559 S.E.2d 788 (2002). When reviewing challenges to the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the State, with the State receiving the benefit of all reasonable inferences to be drawn from the evidence. State v. Compton, 90 N.C. App. 101, 103, 367 S.E.2d 353, 355 (1988). The elements for the charge of possession of a stolen vehicle under N.C.G.S. § 20-106 (2001), are (1) that the defendant possessed the vehicle and (2) that he knew or had reason to believe the vehicle was stolen.

State v. Cooper, 154 N.C. App. 521, 572 S.E.2d 442 (2002).

The charge of felonious possession of the stolen 1971 Ford motor vehicle in 04 CRS 110490 should have been dismissed at the close of all of the evidence in response to defendant’s motion for the insufficiency of the evidence. Vol. II, Tp 148. There was insufficient evidence that the defendant either actually or constructively possessed the vehicle or that he knew, or had reason to believe, the 1971 Ford truck had been stolen. Further, the variance between the ownership of the vehicle alleged in the indictment and the evidence of ownership introduced at trial is fatal to the State’s case.

Mr. Hilliard’s plea of not guilty (Vol. I, Tpp 2-3) placed every essential element of each charge in issue. State v. Jones, 275 N.C. 432, 168 S.E.2d 380 (1969); See, also, State v. Holland, 318 N.C. 602, 610, 350 S.E.2d 56 (1986).

A person is guilty of possession of a stolen motor vehicle in violation of N.C. Gen. Stat. Sec. 20-106 if he (1) possesses (2) a stolen motor vehicle and (3) has knowledge or reason to believe that the vehicle has been stolen. State v. Bailey, 157 N.C. App. 80, 83-84, 577 S.E.2d 683, 686 (2003). "’[T]he rule for determining the sufficiency of evidence is the same whether the evidence is completely circumstantial, completely direct, or both.’ State v. Wright, 302 N.C. 122, 126, 273 S.E.2d 699, 703 (1981) (citations omitted).” Bailey, supra, at 84.

Possession of a motor vehicle may be actual or constructive. Actual possession requires that Mr. Hilliard had physical or personal custody of the 1971 Ford truck. Proof of constructive possession of the 1971 Ford truck requires evidence that Benjamin Hilliard had “an intent and capability to maintain control and dominion” over it. State v. Weaver, 160 N.C. App. 613, 619, 586 S.E.2d 841 (2003). See, also: State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998). While Weaver was an embezzlement case, the law defining possession remains the same.

Where, as here, the defendant did not have exclusive possession or control of the place where the truck was located, a parking lot for towed vehicles, the State must make a showing of "other incriminating circumstances" in order to establish constructive possession. State v. Nelson, COA04-231 (N.C.App. 4-5-2005), 612 S.E.2d 446.

Judge Bryant wrote, and Judges Hunter and Elmore concurred, that close juxtaposition to a truck might support a conclusion that the truck was in the possession of a defendant. State v. Evans, 157 N.C. App. 574, 579 S.E.2d 522 (2003). But that case is distinguishable on the facts.

In Evans, the defendant was within ten feet of the stolen vehicle in question, the motor was running, the stereo sound system was playing when the witness came upon the scene and the owner later identified Evans as the person who had taken the truck at gunpoint.

Benjamin Hilliard was identified by Jonathan Lloyd, a Quality driver, as the man seen running along a fence at the Quality towed vehicle parking lot and who then walked away. There was testimony that the 1971 Ford pickup truck was parked somewhere nearby, but no specific location was identified. Vol. II, Tpp 32-42. A security video of the Ford being taken from a different location (Honeycutt’s lot where it had been placed for repairs) does not reveal the identity of the thief. The key to the ignition of the truck was in a lockbox at Honeycutt’s. There were no useable fingerprints found on the Ford pickup truck. Vol. II, Tpp 101, 111-113.

No significance relevant to this charge can be placed on the fact that the 1971 Ford had not been on the Quality towed vehicle lot 45 minutes before the defendant was seen by Jonathan Lloyd at the fence because the evidence indicated there were four drivers of Quality tow trucks bringing confiscated vehicles into the fenced yard that night from Brentwood Shopping Center. Vol. II, Tp 31.

The superceding indictment in 04 CRS 110490 alleges ownership of the stolen 1971 Ford truck to lie in “YMCA of the Triangle, Inc. d/b/a/ Durham YMCA.” Rp 7. Kelly Donaldson, vehicle manager for YMCA of the Triangle, Inc., testified that a 1971 Ford pickup truck “belongs to our branch in Durham” (Vol. II, Tp 25) and needed carburetor repair work, so it was taken to Honeycutt Transmission. No testimony was offered about the legal identity of the “branch in Durham.”

The Supreme Court has held that "the identity of the owner or the person in possession of the stolen property should be named in the indictment with certainty to the end that another prosecution cannot be maintained for the same offense." State v. Jessup, 279 N.C. 108, 114, 181 S.E.2d 594 (1971).

However, this Honorable Court has held as follows concerning possession of stolen property:

We held in State v. Taylor, 64 N.C. App. 165, 169, 307 S.E.2d 173, 176 (1983), rev'd in part, 311 N.C. 380, 317 S.E.2d 369 (1984), that, as to knowledge or belief that goods were stolen, "the standard of proof established in cases of receiving stolen goods is equally applicable in cases involving possessing stolen goods." In cases of receiving stolen goods, it has never been necessary to allege the names of the persons from whom the goods were stolen, State v. Truesdale 13 N.C. App. 622, 625, 186 S.E.2d 604. 606 (1972), nor has a variance between an allegation of ownership in the receiving indictment and proof of ownership been held to be fatal. State v. Golden, 20 N.C. App. 451, 453, 201 S.E.2d 546, 548, cert. denied, 285 N.C. 88, 203 S.E.2d 60 (1974). We now hold that the name of the person from whom goods were stolen is not an essential element of an indictment alleging possession of stolen goods, nor is a variance between the indictments' allegations of ownership of property and the proof of ownership fatal.

State v. Medlin, 86 N.C. App. 114, 124, 357 S.E.2d 174 (1987).

There was a fatal variance between the State's allegata and the evidence. It has long been held that "proof without allegation is no better than allegation without proof." Hall v. Poteat, 257 N.C. 458, 461, 125 S.E.2d 924 (1962); State v. Simmons, 8 N.C. App. 561, 174 S.E.2d 627 (1970).

As indicated in the “Standard of Proof, above, the trial court must determine as a matter of law whether the State has offered substantial evidence of all elements of the offense charged so any rational trier of fact could find beyond a reasonable doubt that the defendant committed the offense and that the evidence is to be considered in the light most favorable to the State which is entitled to every reasonable inference to be drawn therefrom.

Judge Stephens erred in denying defendant’s motion because the evidence was insufficient to prove defendant had felonious possession of a 1971 Ford pickup truck owned by “YMCA of the Triangle, Inc. d/b/a/ Durham YMCA”.

After making a motion to dismiss at the close of the State’s evidence and having it denied, the defendant neither presented evidence nor did he renew the motion to dismiss. Vol. II, Tpp 148-150.

N. C. G. S. Sec. 15A-1446(d)(5) provides that a claim of the insufficiency of the evidence, as we have here, is reviewable pursuant to N.C.G.S. Sec. 15A-1227(d) even if the defendant failed to move to dismiss. Our Supreme Court has held that North Carolina’s Rule of Appellate Procedure 10(b)(3), requiring a motion to dismiss at the close of all the evidence, takes precedence over the statute so far as they make be deemed inconsistent. State v. Spaugh, 321 N.C. 550, 552, 364 S.E.2d 368 (1988).

Rule 2 of the North Carolina Rules of Appellate Procedure allows this Honorable Court to exercise discretion and review an issue which may not have been preserved for review. In the interest of justice, Mr. Hilliard asks this Court to review the sufficiency of the evidence introduced at his trial on this issue.

Mr. Hilliard wishes to have the judgment vacated and the charge dismissed.

II. THE TRIAL COURT ERRED TO THE UNFAIR PREJUDICE OF BENJAMIN HILLIARD BY DENYING HIS MOTION TO DISMISS THE HABITUAL FELON INDICTMENT AND SENTENCING HIM AS A PRIOR RECORD LEVEL V, CLASS C HABITUAL FELON.

ASSIGNMENT OF ERROR NO. 3, Rp 49

Rpp 15-20; Vol. III, Tpp 124-125.

ASSIGNMENT OF ERROR NO. 4, Rp 49

Vol. III, Tp 94.

STANDARD OF PROOF:

A. “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed presumptive range must be submitted to a jury and proved beyond a reasonable doubt.” State v. Allen, 359 N.C. 425, 437,615 S.E.2d 256 (2005).

B: “[S]entencing errors which violate a defendant's Sixth Amendment right to jury trial pursuant to Blakely. …are structural and, therefore, reversible per se.”

State v. Allen, 359 N.C. 425, 449,615 S.E.2d 256 (2005).

State v. Cooper, 154 N.C. App. 521, 572 S.E.2d 442 (2002).

II:

The Honorable Ronald L. Stephens erred in sentencing Benjamin Hilliard as a Prior Record Level V, Class C habitual felon because the requisite facts were not alleged in the indictment underlying defendant’s conviction nor were they established by a jury beyond a reasonable doubt. The evidence present to support the findings was insufficient to support Judge Stephens’ ruling on defendant’s Motion to Dismiss and the final judgment.

Imposition of the sentence based upon a finding of the 15th prior record point of the defendant having been on probation in Nash County file number “01 CRS 52068” when the crime for which he was convicted was committed is a violation of Mr. Hilliard’s rights under the United States and North Carolina Constitutions. That 15th point moved Hilliard from a Prior Record Level IV to level V, increasing his sentence. Rpp 19-20.

The General Statutes require that “[b]efore imposing a sentence, the court shall determine the prior record level for the offender… .” N.C.G.S. Sec. 15A-1340.13(a) (2003). This requirement, “shall determine,” is imposed upon the sentencing court to ensure that all defendants are sentenced according to applicable law. Judge Stephens failed to make a correct determination of the Prior Record Level of Mr. Hilliard.

In Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed.2d 435 (2000), the United States Supreme Court ruled: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt.” Apprendi, supra, at 530 U.S. at 490.

After Apprendi was decided, the Supreme Court of North Carolina applied the rule to State law and procedures. In State v. Lucas, 353 N.C. 568, 548 S.E.2d 712 (2001), the defendant’s sentence was enlarged by the trial judge’s application of G.S. 15A-1340.16A, the firearm enhancement statute. The trial judge, not a jury, was the fact finder as to this aggravating sentencing factor. The North Carolina Supreme Court applied Apprendi, holding that in future cases when the State sought a firearm enhancement, it must allege the enhancing facts in an indictment and prove those facts to a jury beyond a reasonable doubt.

In Ring v. Arizona, Arizona law authorized the death penalty only if an aggravating factor was present. The U.S. Supreme Court ruled that Apprendi required the existence of the aggravating factor to be proved to a jury instead of a judge. Ring v. Arizona, 536 U.S. 584, 153 L.Ed.2d 556 (2002).

The Supreme Court of North Carolina has looked at the impact of Ring on State law. In State v. Hunt, 357 N.C. 257, 582 S.E.2d. 593 (2003), our Supreme Court ruled thatthe decision of the U.S. Supreme Court in Ring v. Arizona, supra, did not render North Carolina’s short-form murder indictment unconstitutional even though such an indictment did not allege the aggravating circumstances that the State would attempt to prove in seeking a death sentence. The Sixth Amendment to the United States Constitution requires that defendants must be informed of the criminal charges against them. The requirement is applicable to the States through operation of the Fourteenth Amendment. The Hunt Court looked to the Sixth Amendment’s requirement and found there was constructive statutory notice to defendants under the North Carolina system because of the listing of aggravating sentencing factors found in G.S. Sec. 15A-2000(e).

Because the charge in Lucas did not involve a short-form indictment, the Court in Hunt was able to distinguish between the requirements of the two cases.

See: Robert L. Farb: 9 July 2004 Memo titled: Blakely v. Washington and Its Impact on North Carolina’s Sentencing Laws [hereinafter: Farb, 2004].

In June, 2004, some questions about the limits of the sentence authorized by the jury’s determination of the guilt of the defendant to the crime charged were clarified: Blakely v. Washington, 542 U.S. 296, 159 L.Ed.2d 403 (2004). Blakely pleaded guilty to kidnapping, a felony in Washington State, where the law limited the sentence to a “standard range” of 49 to 53 months. The trial judge in Blakely heard evidence, found as an aggravating factor that the defendant had acted with “deliberate cruelty” and imposed a sentence of 90 months, which exceeded the “presumptive” sentence.

In Blakely, the Supreme Court of the United States held that a trial court alone may not impose a sentence in excess of the "statutory maximum," unless either a jury's verdict finds that additional facts, or aggravating circumstances, warrant an increased sentence, or the defendant has waived his Sixth Amendment right to trial by jury… . The "statutory maximum" for an offense is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.

The Supreme Court of North Carolina has indicated that based upon Apprendi and Blakely, Judge Stephens should not have found the one extra point raising Mr. Hilliard’s Prior Record Level to V under G.S. Sec. 15A-1340.14(b)(7) -- a crime committed while defendant was on probation.

Analyzing the sequence of United States Supreme Court decisions and their applicability to North Carolina law, our Supreme Court re-defined “statutory maximum” as applied to sentencing convicted persons in the State. “After Blakely, it is clear that the ‘statutory maximum’ to which Apprendi applies is not the maximum sentence authorized by statute; rather, for Apprendi purposes, ‘statutory maximum’ means the maximum sentence authorized by the jury verdict or the defendant's admissions. Applied to North Carolina's structured sentencing scheme, the rule of Apprendi and Blakely is: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed presumptive range must be submitted to a jury and proved beyond a reasonable doubt. [Citations omitted.] Accordingly, we overrule that language of State v. Lucas which defines ‘statutory maximum’ in a manner inconsistent with this opinion.” State v. Allen, 359 N.C. 425, 437, 612 S.E.2d 447 (2005). This Honorable Court has applied that definition in State v. Blackwell, 166 N.C. App. 280, 603 S.E.2d 168.