{ "id": 8319084, "name": "STATE OF NORTH CAROLINA v. KEVIN WAYNE PHILLIPS", "name_abbreviation": "State v. Phillips", "decision_date": "2005-08-02", "docket_number": "No. COA04-1006", "first_page": "143", "last_page": "149", "citations": [ { "type": "official", "cite": "172 N.C. App. 143" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "year": 2004, "opinion_index": -1, "case_paths": [ "/us/542/0296-01" ] }, { "cite": "615 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633238 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/615/0256-01" ] }, { "cite": "359 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796256 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0425-01" ] }, { "cite": "159 L. Ed. 2d 851", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2004, "opinion_index": 0 }, { "cite": "542 U.S. 961", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5866535, 5868521, 2529355, 5865678, 2528018, 5862140 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/us/542/0961-06", "/us/542/0961-03", "/us/542/0961-05", "/us/542/0961-02", "/us/542/0961-04", "/us/542/0961-01" ] }, { "cite": "151 S.E.2d 62", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "67", "parenthetical": "other citations omitted" } ], "opinion_index": 0 }, { "cite": "268 N.C. 480", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563197 ], "year": 1966, "pin_cites": [ { "page": "487", "parenthetical": "other citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0480-01" ] }, { "cite": "213 S.E.2d 418", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "419", "parenthetical": "quoting State v. Foster, 268 N.C. 480, 487, 151 S.E.2d 62, 67 (1966) (other citations omitted)" } ], "opinion_index": 0 }, { "cite": "25 N.C. App. 453", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554507 ], "year": 1975, "pin_cites": [ { "page": "455", "parenthetical": "quoting State v. Foster, 268 N.C. 480, 487, 151 S.E.2d 62, 67 (1966) (other citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/25/0453-01" ] }, { "cite": "346 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "480" } ], "opinion_index": 0 }, { "cite": "317 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4777645 ], "year": 1986, "pin_cites": [ { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0643-01" ] }, { "cite": "556 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "270", "parenthetical": "quoting State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986)" }, { "page": "270" } ], "opinion_index": 0 }, { "cite": "354 N.C. 549", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138558 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "552", "parenthetical": "quoting State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986)" }, { "page": "552" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0549-01" ] }, { "cite": "470 S.E.2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "73", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 369", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917298 ], "year": 1996, "pin_cites": [ { "page": "372", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0369-01" ] }, { "cite": "275 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "494" } ], "opinion_index": 0 }, { "cite": "302 N.C. 370", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565719 ], "year": 1981, "pin_cites": [ { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0370-01" ] }, { "cite": "577 S.E.2d 703", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2003, "pin_cites": [ { "page": "707" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 90", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9185131 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/nc-app/157/0090-01" ] }, { "cite": "185 S.E.2d 214", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "220", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "280 N.C. 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569703 ], "year": 1971, "pin_cites": [ { "page": "39", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0031-01" ] }, { "cite": "344 S.E.2d 344", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "347" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 398", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523306 ], "year": 1986, "pin_cites": [ { "page": "401" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0398-01" ] }, { "cite": "467 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1996, "pin_cites": [ { "page": "239" }, { "page": "239" } ], "opinion_index": 0 }, { "cite": "342 N.C. 607", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796167 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "613" }, { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0607-01" ] }, { "cite": "370 S.E.2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1988, "pin_cites": [ { "page": "395" }, { "page": "395" } ], "opinion_index": 0 }, { "cite": "322 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516170 ], "year": 1988, "pin_cites": [ { "page": "778" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0770-01" ] }, { "cite": "387 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "214" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 19", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519325 ], "year": 1990, "pin_cites": [ { "page": "25" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0019-01" ] }, { "cite": "592 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "parenthetical": "Phillips I" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 719", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8920012 ], "year": 2004, "pin_cites": [ { "parenthetical": "Phillips I" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0719-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/us/542/0296-01" ] } ], "analysis": { "cardinality": 659, "char_count": 15655, "ocr_confidence": 0.753, "pagerank": { "raw": 7.320887622677165e-08, "percentile": 0.4398223602997704 }, "sha256": "14c0ccf178b3ca9da913fbb1ffa800637fd75503e6f1986f93cac933f822ddff", "simhash": "1:0368956e7c055d63", "word_count": 2575 }, "last_updated": "2023-07-14T22:22:54.702952+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge TYSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. KEVIN WAYNE PHILLIPS" ], "opinions": [ { "text": "LEVINSON, Judge.\nDefendant (Kevin Phillips) appeals from judgments entered on convictions of five counts of felonious possession of stolen goods. Defendant was also sentenced as an habitual felon. We arrest judgment on four of the five convictions, and remand the remaining one for resentencing.\nDefendant was originally tried in September of 2002. The State\u2019s evidence at trial is summarized as follows: During the nighttime hours on 10 December 2001, defendant and three companions broke into the premises of Parker Marine and Outdoors, Richmond County, North Carolina. The men cut a hole in a perimeter fence, then stole five All-Terrain-Vehicles (ATVs). They pushed the ATVs through the hole in the fence and into a nearby wooded area. Two of the ATVs were taken to a house in Marlboro, North Carolina, and the remaining three were taken to defendant\u2019s house. Because the ATVs were large and unwieldy, the men had to make at least four separate trips before all the ATVs were secured.\nDefendant was indicted on five counts of felonious larceny and five counts of felonious possession of stolen goods, all arising out of the 10 December 2001 theft of the ATVs. He was also separately indicted for being an habitual felon. At trial, defendant\u2019s motion to dismiss the substantive charges was denied, and he was convicted of all charges. The trial court arrested judgment on the possession of stolen goods counts, and consolidated four of the five counts of larceny, sentencing defendant to two consecutive terms. See State v. Phillips, 162 N.C. App. 719, 592 S.E.2d 272 (2004) (Phillips I). Defendant appealed to this Court, which issued its opinion on 17 February 2004 in Phillips I. The Court vacated the larceny convictions for defects in the indictments, and remanded the case to the trial court. Id.\nOn remand, the State moved to enter judgments on the five guilty verdicts for possession of stolen property, and the trial court granted the same. During this hearing, defendant asked the trial court to find several mitigating factors, none of which the court found. The State did not ask the court to find any aggravating factors, nor did the State submit new evidence to support aggravating factors. The court nonetheless found the following statutory aggravating factors under N.C.G.S. \u00a7 15A-1340.16(d): number one, \u201cThe defendant induced others to participate in the commission of the offense or occupied a position of leadership or dominance of other participants\u201d; and number two, \u201cThe defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy.\u201d The court entered a consolidated judgment for four counts of felonious possession of stolen goods in the aggravated range (01 CRS 54077, 01 CRS 54084, 01 CRS 54085, and 01 CRS 54092), and also entered a separate judgment on the remaining count of felonious possession of stolen goods in the aggravated range (01 CRS 540076).\nFrom these judgments defendant appeals.\nDefendant argues that the trial court erred by sentencing him on five counts of felony possession of stolen goods, on the grounds that the evidence is insufficient to support more than one charge. We agree.\nThe essential elements of the offense of felony possession of stolen goods are: \u201c(1) possession of personal property; (2) having a value in excess of $400.00 [now $1,000]; (3) which has been stolen; (4) the possessor knowing or having reasonable grounds to believe the property was stolen; and (5) the possessor acting with a dishonest purpose.\u201d State v. Martin, 97 N.C. App. 19, 25, 387 S.E.2d 211, 214 (1990); see also N.C.G.S. \u00a7\u00a7 14-71.1 and 14-72 (2003).\nWe next consider the law governing the determination of the proper number of separate charges for the crime of possession of stolen property. The North Carolina Supreme Court has established that \u201c[t]he statute individuates crimes of possession by the time at which the stolen goods came into the criminal\u2019s possession.\u201d State v. White, 322 N.C. 770, 778, 370 S.E.2d 390, 395 (1988). Accordingly, the number of stolen items that a defendant possesses does not necessarily dictate the proper number of charges for possession of stolen goods. In White, the defendant\u2019s possession began \u201cat different times of receipt following break-ins over a six-week period.\u201d Id. On those facts, the Court held the defendant had properly been charged with eight \u201cseparate counts of possession^\u201d because he acquired the stolen property at separate times. Id. Based on the reasoning of White, we logically conclude that when, as part of one continuous act or transaction, a perpetrator comes into possession of several stolen items at the same time and place, only one count of possession of stolen goods may be sustained. See id.; see also State v. Marr, 342 N.C. 607, 467 S.E.2d 236 (1996).\nBy analogy, the determination of the proper number of larceny charges is also based on an analysis of the transaction: \u201c[A] single larceny offense is committed when, as part of one continuous act or transaction, a perpetrator steals several items at the same time and place.\u201d Marr, 342 N.C. at 613, 467 S.E.2d at 239 (quoting State v. Froneberger, 81 N.C. App. 398, 401, 344 S.E.2d 344, 347 (1986)). Further, we note that crimes of possession and larceny are closely related; receiving stolen goods is a \u201csecondary crime based upon a prior commission of the primary crime of larceny.\u201d State v. Muse, 280 N.C. 31, 39, 185 S.E.2d 214, 220 (1971) (citation omitted). Accordingly, larceny cases shed light on the analysis that determines when \u201cone continuous act or transaction\u201d has occurred. Marr, 342 N.C. at 613, 467 S.E.2d at 239. On facts similar to the instant case, this Court in State v. Hargett, 157 N.C. App. 90, 577 S.E.2d 703 (2003), held that multiple larceny charges were improper and arrested judgment on all but one charge. There, defendant stole items from two different vans, but the court held that he could properly be charged with only one count of larceny, because the vans \u201c[were] in close proximity... [and the crime occurred] within the same general time period.\u201d Id. at 96, 577 S.E.2d at 707. In Hargett, as in the instant case, defendant \u201ccould not have physically taken all of the [goods] at the same time[.]\u201d Id. The court deemed the larcenies \u201cpart of a single continuous transaction,\u201d and held that the \u201ctrial court erred in convicting and sentencing defendant for two separate larcenies.\u201d Id.\nConcepts concerning criminal possession also relate to the number of possession charges that may be sustained under a given set of facts. Possession is not \u201ca single, specific act occurring at a specific time\u201d; rather, \u201cpossession ... is a continuing offense beginning at the time of receipt and continuing until divestment.\u201d State v. Davis, 302 N.C. 370, 374, 275 S.E.2d 491, 494 (1981). Furthermore, \u201cpossession [of stolen goods] . . . may be either actual or constructive.\u201d State v. Carr, 122 N.C. App. 369, 372, 470 S.E.2d 70, 73 (1996) (citation omitted). \u201cConstructive possession exists when the defendant, \u2018while not having actual possession [of the goods], . . . has the intent and capability to maintain control and dominion over\u2019 the[m].\u201d State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (quoting State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986)).\n[I]t is not always necessary that the stolen property should have been actually in the hands or on the person of the accused, it being sufficient if the property was under his exclusive personal control. ... It may be of things elsewhere deposited, but under the control of a party. It may be in a storeroom or barn when the party has the key. In short, it may be in any place where it is manifest it must have been put by the act of the party or his undoubted concurrence.\nState v. Lilly, 25 N.C. App. 453, 455, 213 S.E.2d 418, 419 (1975) (quoting State v. Foster, 268 N.C. 480, 487, 151 S.E.2d 62, 67 (1966) (other citations omitted)).\nAll the foregoing concepts concerning possession can be illustrated by the following, which we find helpful to our evaluation of this case: One who drives a vehicle to work, parks the vehicle, and retains the ignition key during the workday is not divested of possession of the vehicle by virtue of leaving it for numerous hours. Nor does she subsequently repossess it when she returns to the car to drive home at the end of the workday. While she was, at times, in actual possession of the vehicle and, at other times, in constructive possession, the facts nonetheless suggest one continuous possession.\nIn the instant case, the undisputed evidence is that defendant and his companions stole all five ATVs from the same victim during one break-in, occurring on the same night. There was no interruption in the events once the transaction began such that he was divested of possession and then came back into possession. The same four individuals worked until they completed the task. The ATVs were stolen at approximately the same time. The men pushed the machines into a secluded, wooded area before transporting them to two different places. The men left the ATVs only temporarily while transporting them. We conclude that defendant\u2019s actions were part of a single, continuous transaction. See Hargett, 157 N.C. App. 90, 577 S.E.2d 703. Further, Mat\u00edas supports the conclusion that after defendant came into possession of all five ATVs, he maintained either actual or constructive possession of the ATVs for the entire series of events, even while making separate trips to transport them. See Matias, 354 N.C. 549, 556 S.E.2d 269. Defendant and his companions retained the \u201cintent and capability to maintain control and dominion over [the ATVs][.]\u201d Matias, 354 N.C. at 552, 556 S.E.2d at 270. Altogether, the evidence is sufficient to conclude that the defendant committed only one offense of possession of stolen property, not five.\nThe State argues that the evidence does not show that defendant came into possession of all of the ATVs as part of one continuous transaction, but that the defendant\u2019s possessions were, instead, distinct and \u201cseparate events that stretched out through the evening and over the course of the next four days[.]\u201d The State\u2019s argument is based on evidence that defendant made separate trips to secure all of the ATVs on the night they were stolen, hid them in different places, and disposed of them separately. On this evidence, the State reasons, it can bring multiple charges of possession. However, the evidence that defendant and his companions made several trips to move the large and cumbersome ATVs does not convert this offense into five separate offenses. Again, all of these actions occurred after the defendant\u2019s possession of all five ATVs had already begun and constructive possession had been maintained. We conclude that evidence concerning defendant\u2019s system of transporting the stolen ATVs does not support multiple charges of possession.\nThe State also contends that multiple charges of possession may be brought because the defendant disposed of the ATVs separately. The State offers no support for this proposition in case law, and we find none. In fact, White emphasizes the opposite, that the time at which defendant acquires stolen property, not when he is dispossessed of it, more correctly controls the number of offenses that may be sustained. Id. at 778, 370 S.E.2d at 395.\nIn summary, the undisputed evidence shows that defendant\u2019s acts were part of a single, continuous transaction during the course of one night. The evidence further shows that the men maintained constructive possession of the ATVs throughout the night and until ultimate divestment. The trial court erred by sentencing defendant on five, rather than one, counts of felony possession of stolen goods.\nDefendant argues next that the trial court erred by sentencing him in excess of the statutory maximum based on aggravating factors not submitted to the jury and not admitted by defendant. Defendant argues he is entitled to a new sentencing hearing pursuant to Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, reh\u2019g denied, 542 U.S. 961, 159 L. Ed. 2d 851 (2004). We agree.\nIn the instant case, the court found the following statutory aggravating factors under G.S. \u00a7 15A-1340.16(d): number one, \u201cThe defendant induced others to participate in the commission of the offense or occupied a position of leadership or dominance of other participants\u201d; and number two, \u201cThe defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy.\u201d The trial court sentenced defendant as an habitual felon, at the top of the aggravated range, to a term of 167 to 210 months. The aggravating factors were not found beyond a reasonable doubt by the jury, and were not admitted by defendant. Therefore, we remand for resentencing in conformity with the rulings in Blakely and State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005).\nFinally, defendant contends, and the State agrees, that with respect to the offense of felonious possession of stolen goods, defendant was a prior record level III offender at the time of sentencing. We agree, and instruct the trial court to reexamine defendant\u2019s prior record level during resentencing.\nIn summary, we arrest judgment on four convictions of felony possession of stolen goods (01 CRS 54077, 01 CRS 54084, 01 CRS 54085, and 01 CRS 54092), and remand the fifth (01 CRS 54076) for resentencing.\nJudgment arrested in part, remanded in part.\nChief Judge MARTIN and Judge TYSON concur.", "type": "majority", "author": "LEVINSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General John P. Barkley for the State.", "Amos Granger Tyndall for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KEVIN WAYNE PHILLIPS\nNo. COA04-1006\n(Filed 2 August 2005)\n1. Possession of Stolen Property\u2014 multiple convictions erroneous \u2014 single continuous transaction\nThe trial court erred by sentencing defendant on five counts of felonious possession of stolen goods, and the case is remanded for entry of conviction on only one charge, because: (1) the number of stolen items that a defendant possesses does not necessarily dictate the proper number of charges for possession of stolen goods; (2) when, as part of one continuous act or transaction, a perpetrator comes into possession of several stolen items at the same time and place, only one count of possession of stolen goods may be sustained even though defendant in the instant case could not have physically taken all five ATVs at one time from the same victim during one break-in occurring on the same night when there was no interruption in the events once the transaction began; and (3) the time at which defendant acquires stolen property, not when he is dispossessed of it, more correctly controls the number of offenses that may be sustained.\n2. Sentencing\u2014 aggravating factors found but not submitted to jury \u2014 Blakely error\nThe trial court erred by sentencing defendant in excess of the statutory maximum based on aggravating factors not submitted to the jury and not admitted by defendant, and defendant is entitled to a new sentencing hearing pursuant to Blakely v. Washington, 542 U.S. 296 (2004).\n3. Sentencing\u2014 prior record level \u2014 felonious possession of stolen goods\nThe trial court must reexamine defendant\u2019s prior record level during resentencing since defendant was a prior record level III offender at the time of sentencing with respect to the offense of felonious possession of stolen goods.\nAppeal by defendant from judgment entered 29 April 2004 by Judge Mark E. Klass in Richmond County Superior Court. Heard in the Court of Appeals 21 April 2005.\nAttorney General Roy Cooper, by Assistant Attorney General John P. Barkley for the State.\nAmos Granger Tyndall for defendant." }, "file_name": "0143-01", "first_page_order": 173, "last_page_order": 179 }