{
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  "name": "STATE OF NORTH CAROLINA v. JAMES McKINLEY DURHAM",
  "name_abbreviation": "State v. Durham",
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  "casebody": {
    "judges": [
      "Judges Wells and Whichard concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JAMES McKINLEY DURHAM"
    ],
    "opinions": [
      {
        "text": "BECTON, Judge.\nDefendant appeals from his convictions for breaking and entering a motor vehicle and non-felonious larceny. The charges stemmed from the events of 27 July 1983, when someone smashed the right front window of a locked car and stole a set of golf clubs sometime between 8:00 a.m. and noon. At trial the State introduced evidence suggesting that defendant was the person who pawned the golf clubs around noon the same day at the local pawn shop. When initially questioned by the police, defendant admitted that he pawned the clubs for an unidentified man who paid him $10 for his services. Afterwards, the defendant gave the unidentified man a ride to defendant\u2019s neighborhood. Defendant was given several days to produce this person but failed to do so. Defendant offered no evidence at trial.\nI\nOnly two assignments of error have been brought forward for our consideration: (1) the insufficiency of the evidence to support the judgment and sentence, and (2) the denial of effective assistance of counsel. Both are without merit.\nII\nDefendant challenges the sufficiency of the evidence to support the entry of judgment. N.C. Gen. Stat. Sec. 15A-1227(d) (1983) provides that \u201c[t]he sufficiency of all evidence introduced in a criminal case is reviewable on appeal. . . .\u201d The phrase \u201call evidence\u201d indicates that the reviewing court must consider the defendant\u2019s evidence as well as the State\u2019s in determining the question of sufficiency. Defendant presented no evidence.\nAlthough defendant was never actually placed at the scene of the crime, the trial court did not err in submitting the case to the jury. The State\u2019s evidence of defendant\u2019s possession of recently stolen goods was sufficient for the jury to infer the defendant\u2019s guilt. The doctrine of possession of recently stolen goods comes into play only when \u201c \u2018 \u201cthe possession is of a kind which manifests that the stolen goods came to the possessor by his own act or with his undoubted concurrence\u201d . . ., and so recently and under such circumstances as to give reasonable assurance that such possession could not have been obtained unless the holder was himself the thief.\u2019 \u201d State v. McKay, 32 N.C. App. 61, 66-67, 231 S.E. 2d 22, 25 (1977) (citation omitted) (quoting State v. Weinstein, 224 N.C. 645, 650, 31 S.E. 2d 920, 924 (1944), cert. denied, 324 U.S. 849, 89 L.Ed. 1410, 65 S.Ct. 689 (1945)). A minimal lapse of time between the theft and the possession is a crucial prerequisite. \u201cThe possession, in point of time, should be so close to the theft as to render it unlikely that the possessor could have acquired the property honestly.\u201d State v. Jackson, 274 N.C. 594, 597, 164 S.E. 2d 369, 370 (1968) (few minute time lapse \u2014 doctrine applicable). The inference of guilt derived from the possession of stolen goods fades with the lengthening time interval. Id. See State v. Raynes, 272 N.C. 488, 158 S.E. 2d 351 (1968) (Saturday afternoon to Sunday morning \u2014 doctrine applicable); State v. Holbrook, 223 N.C. 622, 27 S.E. 2d 725 (1943) (eleven days \u2014doctrine inapplicable); State v. McKay (one to two days \u2014 doctrine applicable).\nHere the golf clubs were stolen on 27 July 1983 between 8:00 a.m., when the owner left his locked car, and noon, when defendant pawned the clubs. Defendant admitted possessing the clubs and pawning them that same day. This evidence clearly gives rise to the inference that defendant was the thief and stole the clubs by breaking and entering the car. The State\u2019s evidence was sufficient to go to the jury and to support the judgment.\nr-H 1 \u2014 l 1\nThe effective assistance of counsel in a criminal trial is guaranteed by the Sixth Amendment to the United States Constitution and made applicable to the states by the Fourteenth Amendment, and by Article I, Sections 19 and 23 of the North Carolina Constitution. To successfully attack his conviction on this basis, a defendant must show that \u201chis counsel\u2019s conduct fell below an objective standard of reasonableness.\u201d State v. Bras-well, 312 N.C. 553, 561-2, 324 S.E. 2d 241, 248 (1984) (quoting Strickland v. Washington, \u2014 U.S. \u2014, \u2014, 80 L.Ed. 2d 674, 693, 104 S.Ct. 2052 (1984)). In Strickland, the United States Supreme Court set forth a two-part test to be applied in interpreting the range of competence standard established in McMann v. Richardson, 397 U.S. 759, 25 L.Ed. 2d 763, 90 S.Ct. 1441 (1970).\nFirst, the defendant must show that counsel\u2019s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the \u2018counsel\u2019 guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel\u2019s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.\n\u2014 U.S. at \u2014, 80 L.Ed. 2d at 693, 104 S.Ct. at \u2014. The Braswell Court expressly adopted the Strickland test as the uniform standard to be applied under the North Carolina Constitution as well as the United States Constitution to determine the ineffective assistance of counsel.\nUnder the Strickland test, defendant has failed to demonstrate that his counsel\u2019s performance was prejudicially deficient. In this instance, the fact that counsel objected only once at trial, failed to produce witnesses, and failed to move for a dismissal does not warrant a reversal. There has been no showing that counsel\u2019s errors, if any, were so serious as to deprive defendant of a fair trial.\nDefendant was not denied effective assistance of counsel.\nNo error.\nJudges Wells and Whichard concur.",
        "type": "majority",
        "author": "BECTON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy Thornburg, by Assistant Attorney General Francis W. Crawley for the State.",
      "Laurel O. Boyles for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JAMES McKINLEY DURHAM\nNo. 8421SC516\n(Filed 16 April 1985)\n1. Criminal Law \u00a7 104\u2014 sufficiency of evidence to support entry of judgment \u2014 all evidence considered\nWhere defendant challenged the sufficiency of the evidence to support the entry of judgment, G.S. 15A-1227(d) (1983) indicates that the reviewing court must consider the defendant\u2019s evidence as well as the State\u2019s in determining the question of sufficiency.\n2. Larceny \u00a7 7.4; Burglary and Unlawful Breakings 8 5.4\u2014 breaking and entering of automobile \u2014 larceny\u2014evidence sufficient\nThe State's evidence was sufficient to submit charges of breaking and entering a motor vehicle and nonfelonious larceny to the jury and to support the judgment even though defendant was never placed at the scene of the crime where golf clubs were stolen on 27 July 1983 between 8:00 a.m., when the owner left his locked car, and noon, when defendant pawned his clubs, and defendant admitted possessing the clubs and pawning them that day.\n3. Constitutional Law \u00a7 48\u2014 defendant not denied effective assistance of counsel\nDefendant was not deprived of the effective assistance of counsel where his counsel objected only once at trial, failed to produce witnesses, and failed to move for a dismissal because there was no showing that counsel\u2019s errors, if any, were so serious as to deprive defendant of a fair trial.\nAPPEAL by defendant from Seay, Judge. Judgment entered 19 January 1984 in Superior Court, FORSYTH County. Heard in the Court of Appeals 6 February 1985.\nAttorney General Lacy Thornburg, by Assistant Attorney General Francis W. Crawley for the State.\nLaurel O. Boyles for defendant appellant."
  },
  "file_name": "0201-01",
  "first_page_order": 233,
  "last_page_order": 237
}
