{ "id": 4162029, "name": "STATE OF NORTH CAROLINA v. SAMUEL TRAVIS TANNER", "name_abbreviation": "State v. Tanner", "decision_date": "2008-10-07", "docket_number": "No. COA08-251", "first_page": "150", "last_page": "158", "citations": [ { "type": "official", "cite": "193 N.C. App. 150" } ], "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": "618 S.E.2d 257", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633849 ], "year": 2005, "pin_cites": [ { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/se2d/618/0257-01" ] }, { "cite": "623 S.E.2d 815", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634751 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "820", "parenthetical": "\"Under N.C. Gen. Stat. \u00a7 14-72 (2003), defendant's larceny could be considered a felony, rather than a misdemeanor, only if the value of the property he took was more than $1,000.00 or if he committed the larceny in the course of a felonious breaking and entering.\"" }, { "page": "820" } ], "opinion_index": 0, "case_paths": [ "/se2d/623/0815-01" ] }, { "cite": "652 S.E.2d 744", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639795 ], "weight": 7, "year": 2007, "pin_cites": [ { "page": "747-48" }, { "page": "747" }, { "page": "748" }, { "page": "748" }, { "page": "749" }, { "page": "748" }, { "page": "749" } ], "opinion_index": 0, "case_paths": [ "/se2d/652/0744-01" ] }, { "cite": "622 S.E.2d 120", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634478 ], "year": 2005, "pin_cites": [ { "page": "123", "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/622/0120-01" ] }, { "cite": "626 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635151 ], "weight": 3, "pin_cites": [ { "page": "286" }, { "page": "286" }, { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/se2d/626/0271-01" ] }, { "cite": "173 N.C. App. 112", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352985 ], "year": 2005, "pin_cites": [ { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0112-01" ] }, { "cite": "175 N.C. App. 550", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352673 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "556", "parenthetical": "\"Under N.C. Gen. Stat. \u00a7 14-72 (2003" }, { "page": "557" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0550-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-72", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "187 N.C. App. 235", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8373423 ], "weight": 5, "year": 2007, "pin_cites": [ { "page": "240-41" }, { "page": "240" }, { "page": "241" }, { "page": "242" }, { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0235-01" ] }, { "cite": "341 S.E.2d 555", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "560", "parenthetical": "citation omitted" }, { "page": "561" } ], "opinion_index": 0 }, { "cite": "316 N.C. 295", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694937 ], "year": 1986, "pin_cites": [ { "page": "304", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0295-01" ] }, { "cite": "358 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726601, 4731024, 4726903, 4730779, 4730591 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0172-05", "/nc/320/0172-01", "/nc/320/0172-02", "/nc/320/0172-04", "/nc/320/0172-03" ] }, { "cite": "355 S.E.2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "229" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 583", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170185 ], "pin_cites": [ { "page": "589" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0583-01" ] }, { "cite": "287 S.E.2d 810", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "815", "parenthetical": "citations omitted" }, { "page": "813" } ], "opinion_index": 0 }, { "cite": "305 N.C. 225", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567315 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "233", "parenthetical": "citations omitted" }, { "page": "229-30" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0225-01" ] }, { "cite": "174 N.C. App. 790", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353318 ], "year": 2005, "pin_cites": [ { "page": "795", "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0790-01" ] }, { "cite": "166 L. Ed. 2d 116", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2006, "opinion_index": 0 }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "687" }, { "page": "693" }, { "page": "694" }, { "page": "698" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "360 N.C. 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787721 ], "weight": 3, "pin_cites": [ { "page": "316" }, { "page": "316" }, { "page": "316" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0297-01" ] }, { "cite": "462 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "504" } ], "opinion_index": 0 }, { "cite": "341 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793180 ], "year": 1995, "pin_cites": [ { "page": "676-77" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0658-01" ] }, { "cite": "596 S.E.2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "322", "parenthetical": "citing State v. Richardson, 341 N.C. 658, 676-77, 462 S.E.2d 492, 504 (1995)" }, { "page": "322" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 673", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8900225 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "677", "parenthetical": "citing State v. Richardson, 341 N.C. 658, 676-77, 462 S.E.2d 492, 504 (1995)" }, { "page": "677" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0673-01" ] }, { "cite": "154 L. Ed. 2d 795", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 0 }, { "cite": "537 U.S. 1117", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9341218, 9341250, 9340869, 9341063, 9341160, 9341421, 9341364, 9340916, 9341110, 9340949, 9340987, 9341309, 9341023 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/us/537/1117-09", "/us/537/1117-10", "/us/537/1117-01", "/us/537/1117-06", "/us/537/1117-08", "/us/537/1117-13", "/us/537/1117-12", "/us/537/1117-02", "/us/537/1117-07", "/us/537/1117-03", "/us/537/1117-04", "/us/537/1117-11", "/us/537/1117-05" ] }, { "cite": "355 N.C. 592", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220016 ], "year": 2002, "pin_cites": [ { "page": "615", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0592-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-7.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-71.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "and (2)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 721, "char_count": 17704, "ocr_confidence": 0.751, "pagerank": { "raw": 9.734833531758876e-08, "percentile": 0.5306905923858881 }, "sha256": "4e6ed840fb402fee4c0dfd31fcb719db351af027e136cbc48e519513a140c551", "simhash": "1:830b55161225d45c", "word_count": 2854 }, "last_updated": "2023-07-14T16:30:29.332614+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and ELMORE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. SAMUEL TRAVIS TANNER" ], "opinions": [ { "text": "TYSON, Judge.\nSamuel Travis Tanner (\u201cdefendant\u201d) appeals judgment entered after: (1) a jury found him to be guilty of felony possession of stolen goods pursuant to N.C. Gen. Stat. \u00a7 14-71.1 and (2) defendant pleaded guilty to attaining the status of habitual felon pursuant to N.C. Gen. Stat. \u00a7 14-7.1. We vacate and remand for resentencing.\nI. Background\nOn 27 August 2006, several businesses located on South Person Street in Raleigh, North Carolina were burglarized and vandalized, including Hill\u2019s Barber Shop and Quality Hair Design. Items reported stolen included: razor blades, hair clippers, sheers, curlers, hair care products, an air purifier, a CD player, a telephone, and a small black and white television. Raleigh Police Detective Rich Bargfrede (\u201cDetective Bargfrede\u201d) was assigned to investigate these crimes.\nDetective Bargfrede conducted a search of the police database to \u25a0determine whether any pawnshops in the area had purchased items that matched the description of the items reported stolen.. Detective Bargfrede discovered that Reliable Loan had purchased a pair of hair clippers from Jeanette Brown (\u201cBrown\u201d). On 14 September 2006, Detective Bargfrede visited Brown at her residence located at 519 South Blount Street. Brown informed Detective Bargfrede that she had received the hair clippers from her roommates, defendant and Antion\u00e9tte Harrison (\u201cHarrison\u201d). Neither defendant nor Harrison were present at that time.\nDetective Bargfrede returned to the police station and conducted a further search of the police database to determine whether defendant or Harrison had sold any items to the surrounding pawnshops. The search revealed Harrison had pawned a CD player that matched the serial number of the CD player stolen two days prior from Quality Hair Design.\nDetective Bargfrede returned to 519 South Blount Street with uniformed officers. Officers observed defendant and Harrison enter and exit the residence shortly thereafter. As officers approached defendant, he threw a red backpack into the bushes and started to walk in the opposite direction. Officers ordered defendant to stop and recovered the backpack. With defendant\u2019s permission, officers searched the backpack and found it contained various hair care products. Detective Bargfrede subsequently obtained and executed a search warrant on the residence located at 519 South Blount Street. Officers recovered numerous items from defendant\u2019s bedroom, which were identified as having been stolen from Hill\u2019s Barber Shop and Quality Hair Design.\nDefendant was arrested and transported to the Raleigh Police Department. Defendant voluntarily waived his Miranda rights and provided Sergeant R.A. McLeod with two statements. The substance of defendant\u2019s two statements was that he had received the stolen goods from an unidentified person while he was helping this person \u201ccarry some bags [away] from\u201d the barber shop.\nDefendant testified on his own behalf at trial and recited yet another explanation for how the stolen goods had come into his possession. Defendant stated that several weeks prior to 14 September 2006, he had purchased a box of merchandise containing hair care products from a person identified as \u201cSlim.\u201d Slim also sold defendant a refrigerator, CD player, and small television for the package price of eighteen dollars. On a subsequent occasion, defendant purchased drugs from a. person accompanying Slim, which turned out to be counterfeit. Defendant testified that on 14 September 2006, he confronted Slim about the counterfeit drugs. In response, Slim gave defendant the backpack full of merchandise he carried on the date of his arrest.\nDefendant was indicted on the charges of: (1) felony breaking and entering; (2) felony larceny; (3) felony possession of stolen goods; and (4) attaining the status of habitual felon. After a four day trial, the jury found defendant to be guilty of felony possession of stolen goods, but acquitted him of felony breaking and entering and felony larceny. Defendant subsequently pleaded guilty to attaining habitual felon status in exchange for a maximum punishment of 261 months imprisonment. The trial court sentenced defendant within the presumptive range to a minimum of 121 months to a maximum of 155 months imprisonment. Defendant appeals.\nII. Issues\nDefendant argues the trial court erred by: (1) failing to dismiss the charge of felony possession of stolen goods at the close of all the evidence; (2) accepting the jury\u2019s verdict of guilty to the charge of felony possession of stolen goods and entering a judgment thereon; and (3) sentencing defendant as a habitual felon. Defendant also argues he received ineffective assistance of counsel.\nIII. Motion to Dismiss\nDefendant argues the trial court committed plain error by failing to dismiss the charge of felony possession of stolen goods based upon: (1) insufficient evidence establishing each element of the crime and defendant\u2019s identity as the perpetrator and (2) a fatal variance between the indictment and the evidence presented at trial. We disagree.\nDefendant concedes defense counsel made a timely motion to dismiss the.charge of felony possession of stolen goods at the close of the State\u2019s evidence, but \u201cfailed to renew his motion after the close of all the evidence as required by Rule 10(b)(3) of the North Carolina Rules of Appellate Procedure.\u201d Defendant urges this Court to review these assignments of error under plain error analysis.\nPlain error review applies only to jury instructions and evidentiary matters in criminal cases. State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d22, 39-40 (2002) (citation omitted), cert. denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003). \u201cWhile this is a criminal case, defendant\u2019s failure to renew his motion to dismiss does not trigger a plain error analysis.\u201d State v. Freeman, 164 N.C. App. 673, 677, 596 S.E.2d 319, 322 (2004) (citing State v. Richardson, 341 N.C. 658, 676-77, 462 S.E.2d 492, 504 (1995)).\nRule 10(b)(3) of the North Carolina Rules of Appellate Procedure specifically states:\n[i]f a defendant makes such a motion after the State has presented all its evid\u00e9nce and has rested its case and that motion is denied and the defendant then introduces evidence, his motion for dismissal or judgment in case of nonsuit made at the close of State\u2019s evidence is waived. Such a waiver precludes the defendant from urging the denial of such motion as a ground for appeal.\nN.C.R. App. P. 10(b)(3) (2007) (emphasis supplied). Because defendant introduced evidence at trial and failed to renew his motion to dismiss at the close of all the evidence, defendant waived his right to challenge such denial on appeal. Id. These assignments of error are dismissed.\nIV. Ineffective Assistance of Counsel\nDefendant alternatively argues that if this Court should decide that his preceding assignments of errors were waived at trial, defense counsel\u2019s failure to renew the motion to dismiss at the close of all the evidence constituted ineffective assistance of counsel. We disagree.\n\u201cTo prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel\u2019s performance was deficient and then that counsel\u2019s deficient performance prejudiced his defense.\u201d State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (citing Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)), cert. denied, - U.S. - , 166 L. Ed. 2d 116 (2006). In order to establish prejudice, \u201c[t]he defendant must show that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\u201d Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698.\nThe dispositive issue before this Court becomes whether there is a reasonable probability that the trial court would have. granted defendant\u2019s motion to dismiss had defense counsel renewed the motion at the close of all the evidence. \u201cThe standard for ruling on a motion to dismiss is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.\u201d State v. Wood, 174 N.C. App. 790, 795, 622 S.E.2d 120, 123 (2005) (citation and quotation omitted). The essential elements of possession of stolen property are as follows: \u201c(1) possession of personal property; (2) which has been stolen; (3) the possessor knowing or having reasonable grounds to believe the property to have been stolen; and (4) the possessor acting with a dishonest purpose.\u201d State v. Perry, 305 N.C. 225, 233, 287 S.E.2d 810, 815 (1982) (citations omitted). Defendant argues the State presented insufficient evidence tending to establish defendant knew or had reasonable grounds to believe the property was stolen and that he was acting with a dishonest purpose.\nA. Reasonable Grounds\n\u201cWhether the defendant knew or had reasonable grounds to believe that the [property was] stolen must necessarily be proved through inferences drawn from the evidence.\u201d State v. Brown, 85 N.C. App. 583, 589, 355 S.E.2d 225, 229 (citation omitted), disc. rev. denied, 320 N.C. 172, 358 S.E.2d 57 (1987).\n[A] defendant-seller\u2019s knowledge or reasonable grounds to believe that property was stolen can be implied from his willingness to sell the property at a mere fraction of its actual value. Such knowledge or reasonable belief can also be implied where a defendant-buyer buys property at a fraction of its actual cost.\nState v. Parker, 316 N.C. 295, 304, 341 S.E.2d 555, 560 (1986) (citation omitted) (emphasis supplied).\nHere, defendant conceded he first purchased a box full of hair care products from a person identified as \u201cSlim\u201d for the price of three dollars. Defendant subsequently purchased a refrigerator, CD player, and a small television from Slim for the price of eighteen dollars. Defendant\u2019s knowledge or reasonable belief that the property was stolen could be inferred or implied by his purchase of the property at \u201ca fraction of its actual cost.\u201d Id. Viewed in the light most favorable to the State, sufficient evidence was presented to establish defendant knew or had reasonable grounds to believe the property he possessed was stolen.\nB. Dishonest Purpose\n[T]he \u201cdishonest purpose\u201d element of the crime of possession of stolen property can be met by a showing that the possessor acted with an intent to aid the thief, receiver, or possessor of stolen property. The fact that the defendant does not intend to profit personally by his action is immaterial. It is sufficient if he intends to assist another wrongdoer in permanently depriving the true owner of his property.\nId. at 305-06, 341 S.E.2d at 561. By defendant\u2019s own admission, given in his second statement to police officers, defendant came into contact with an unidentified man who had already made a \u201cscore.\u201d The unidentified man asked defendant to \u201chelp him carry some bags [away] from\u201d the barber shop. Defendant complied with this request and identified some of the items contained in the red backpack he carried on the date of his arrest as the items he had received from this person. Viewed in the light most favorable to the State, sufficient evidence tended to show defendant intended \u201cto aid the thief\u2019 or \u201cto assist another wrongdoer in permanently depriving the true owner of his property.\u201d Id.\nThe State presented sufficient evidence tending to establish defendant knew or had reasonable grounds to believe the property was stolen and that he was acting with a dishonest purpose. We hold there is no reasonable probability that the trial court would have granted defendant\u2019s motion to dismiss had defense counsel renewed the motion at the close of all the evidence. Defendant failed to establish that his counsel\u2019s alleged deficient performance prejudiced his defense. Allen, 360 N.C. at 316, 626 S.E.2d at 286. This assignment of error is overruled.\nV. Felony Possession of Stolen Goods\nDefendant argues the trial court erred in accepting the jury\u2019s guilty verdict as to the charge of felony possession of stolen goods and entering judgment thereon, after the jury found defendant not guilty of felony breaking and entering. We agree.\nIn order for the crime of possession of stolen goods to be elevated to a felony, the State was required to show and the jury must find an additional element of either: (1) the property stolen had a value of more than $ 1,000.00 or (2) that the property was stolen pursuant to a breaking or entering. State v. Marsh, 187 N.C. App. 235, 240-41, 652 S.E.2d 744, 747-48 (2007); N.C. Gen. Stat. \u00a7 14-72; see also State v. Matthews, 175 N.C. App. 550, 556, 623 S.E.2d 815, 820 (2006) (\u201cUnder N.C. Gen. Stat. \u00a7 14-72 (2003), defendant\u2019s larceny could be considered a felony, rather than a misdemeanor, only if the value of the property he took was more than $1,000.00 or if he committed the larceny in the course of a felonious breaking and entering.\u201d). Here, the trial court submitted defendant\u2019s felony possession of stolen property charge to the jury based solely on the goods having been stolen pursuant to a breaking and entering. Although the indictment alleged the value of the stolen goods exceeded $1,000.00 and evidence was presented at trial tending to support this valuation, this basis to support felony possession of stolen goods was not submitted to the jury.\nIt is well-established in North Carolina that \u201c[w]hen a charge of felony possession of stolen goods is based on the goods having been stolen pursuant to a breaking and entering[,] a court cannot properly accept a guilty verdict on the charge of felony possession of stolen goods when defendant has been acquitted of the breaking and entering charge.\u201d Marsh, 187 N.C. App. at 240, 652 S.E.2d at 747 (quoting State v. Goblet, 173 N.C. App. 112, 121, 618 S.E.2d 257, 264 (2005)); see also Perry, 305 N.C. at 229-30, 287 S.E.2d at 813. Because the jury found defendant to be not guilty of the underlying breaking and entering charge, upon which the State solely based its charge of felony possession of stolen goods, we vacate defendant\u2019s conviction of felony possession of stolen goods and the judgment entered thereon. Marsh, 187 N.C. App. at 241, 652 S.E.2d at 748. However, sufficient evidence was presented at trial and the jury found defendant to be guilty of the remaining elements of possession of stolen goods. We remand this case to the trial court for entry of judgment on the charge of misdemeanor possession of stolen goods. See id. at 241, 652 S.E.2d at 748; Matthews, 175 N.C. App. at 557, 623 S.E.2d at 820.\nVI. Habitual Felon Status\nBecause we vacate defendant\u2019s underlying conviction for felony possession of stolen goods, the judgment sentencing defendant as a habitual felon must also be vacated. See Marsh, 187 N.C. App. at 242, 652 S.E.2d at 749.\nVII. Conclusion\nDefendant\u2019s assignments of error pertaining to the denial of his motion to dismiss the charge of felony possession of stolen goods were waived based on defense counsel\u2019s failure to renew the motion at the close of all the evidence. N.C.R. App. P 10(b)(3). Defendant\u2019s arguments are not subject to plain error review and are dismissed. Id.) Freeman, 164 N.C. App. at 677, 596 S.E.2d at 322.\nDefense counsel\u2019s failure to renew defendant\u2019s motion to dismiss at the close of all the evidence does not constitute ineffective assistance of counsel. Defendant failed to show his counsel\u2019s alleged deficient performance prejudiced his defense. Allen, 360 N.C. at 316, 626 S.E.2d at 286.\nThe trial court improperly accepted the jury\u2019s guilty verdict on the charge of felony possession of stolen goods after the jury acquitted defendant of felony breaking- and entering. We vacate the judgment entered on defendant\u2019s felony possession of stolen goods conviction. This case is remanded to the trial court for entry of judgment and resentencing on the charge of misdemeanor possession of stol\u00e9n goods. Marsh, 187 N.C. App. at 241, 652 S.E.2d at 748. Because defendant\u2019s underlying felony conviction was vacated, the judgment sentencing defendant as a habitual felon is also vacated. Id. at 242, 652 S.E.2d at 749.\nVacated and Remanded for Resentencing.\nJudges CALABRIA and ELMORE concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Kathleen M. Waylett, for the State.", "William D. Spence, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. SAMUEL TRAVIS TANNER\nNo. COA08-251\n(Filed 7 October 2008)\n1. Appeal and Error\u2014 motion to dismiss \u2014 failure to renew after introducing evidence \u2014 waiver\nDefendant waived appellate review of the denial of his motion to dismiss charges of felonious possession of stolen property by not renewing it after introducing evidence. Plain error review does not apply.\n2. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to renew motion to dismiss \u2014 no reasonable possibility of different outcome\nThe failure to renew a motion to dismiss charges of felonious possession of stolen property was not ineffective assistance of counsel where defendant did not show that the alleged deficient performance prejudiced his defense.\n3. Possession of Stolen Property\u2014 felonious \u2014 submission to jury only on breaking and entering \u2014 not guilty verdict on breaking and entering\nA conviction for felonious possession of stolen property was remanded for sentencing as misdemeanor possession where the charge was submitted to the jury as a felony only on the basis of the goods having been stolen pursuant to a breaking or entering, but the jury found defendant not guilty of the breaking or entering.\nAppeal by defendant from judgment entered on or after 6 August 2007 by Judge W. Osmond Smith, III in Wake County Superior Court. Heard in the Court of Appeals 10 September 2008.\nAttorney General Roy Cooper, by Special Deputy Attorney General Kathleen M. Waylett, for the State.\nWilliam D. Spence, for defendant-appellant." }, "file_name": "0150-01", "first_page_order": 182, "last_page_order": 190 }