Lee_ Anthony Jerome

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					No.   COA10-1263                            EIGHTH JUDICIAL DISTRICT


                   NORTH CAROLINA COURT OF APPEALS

                   *******************************

STATE OF NORTH CAROLINA           )
                                  )                From Wayne County
      v.                          )      Nos. 08CRS52796, 52798-800,
                                  )               52832-37, 52839-44
ANTHONY JEROME LEE,               )               09CRS387, 389, 391
     Defendant                    )


                   *********************************

                      DEFENDANT-APPELLANT’S BRIEF

                   *********************************
                                 INDEX

                                                                    PAGE

TABLE OF CASES AND AUTHORITIES     .............................     iv

QUESTIONS PRESENTED      .........................................    1

STATEMENT OF THE CASE     .......................................     1

GROUNDS FOR APPELLATE REVIEW     ................................     3

STATEMENT OF THE FACTS     ......................................     3

ARGUMENT:

I.    THE COURT COMMITTED PLAIN ERROR BY NOT DECLARING A MISTRIAL
      ON ITS OWN MOTION, WHEN POTENTIAL JUROR NO. 6, A DEPUTY
      SHERIFF, VOLUNTEERED DURING VOIR DIRE THAT HE KNEW “SOME OF
      MR. LEE‟S RECORD” AND HAD “DEALT WITH HIM IN DISTRICT
      COURT,” THEREBY IRREPARABLY TAINTING WITH IRRELEVANT AND
      PREJUDICIAL INFORMATION THE ENTIRE JURY POOL. ......... 18

      A.    Standard of Review   ...............................     18

      B.    Discussion   .......................................     19

II.   THE COURT ERRED BY GIVING AN INSTRUCTION ON THE DOCTRINE OF
      RECENT POSSESSION, OVER THE DEFENDANT‟S OBJECTION, WHEN THE
      INSTRUCTION WAS NOT SUPPORTED BY THE EVIDENCE. ........ 22

      A.    Standard of Review   ...............................     22

      B.    Discussion   .......................................     23

            1.   Possession was not to the exclusion
                 of others. ..................................       23

            2.   The Newport cigarettes were not specifically
                 identified as stolen from any victim. .......       25

            3.   The instruction prejudiced Mr. Lee.    .........    28
                                   iii



III. THE COURT ERRED BY DENYING MR. LEE‟S MOTIONS DISMISS THE
     CHARGES FOR INSUFFICIENT EVIDENCE. ....................        29

     A.      Standard of Review   ...............................   29

     B.      Discussion   .......................................   30

CONCLUSION     .................................................    34

CERTIFICATE OF SERVICE      .....................................   36
                               iv

                 TABLE OF CASES AND AUTHORITIES

                              CASES

                                                                   PAGE

Al Smith Buick Co. v. Mazda Motor of America,
     122 N.C. App. 429, 470 S.E.2d 552,
     cert. denied and disc. review denied,
     343 N.C. 749, 473 S.E.2d 609 (1996). ..................        23

Irvin v. Dowd,
     366 U.S. 717, 81 S. Ct. 1639,
     6 L. Ed. 2d 751 (1961). ...............................        20

Morgan v. Illinois,
     504 U.S. 719, 112 S. Ct. 2222,
     119 L. Ed. 2d 492 (1992). .............................        20

State v. Anderson,
     194 N.C. App. 292, 669 S.E.2d 793 (2008),
     rev. denied, 362 N.C. 90, 675 S.E.2d 659 (2009).     ......    31

State v. Black,
     308 N.C. 736, 303 S.E.2d 804 (1983).    ..................     19

State v. Carter,
     122 N.C. App. 322, 470 S.E.2d 74 (1996).    ..........   27, 28

State v. Collins,
     334 N.C. 54, 431 S.E.2d 188 (1993).    ...................     18

State v. Davis,
     302 N.C. 370, 275 S.E.2d 491 (1981).    ..............   31, 33

State v. Fair,
     291 N.C. 171, 229 S.E.2d 189 (1976).    ..................     25

State v. Foster,
     286 N.C. 480, 151 S.E.2d 62 (1966).    ...........   26, 27, 29

State v. General,
     91 N.C. App. 375, 371 S.E.2d 784 (1988).    ..............     21

State v. Goblet,
     173 N.C. App. 112, 618 S.E.2d 257 (2005).    .............     29
                                v


State v. Gonzalez,
     311 N.C. 80, 316 S.E.2d 229 (1984).     ...................   24

State v. Grady,
     136 N.C. App. 394, 524 S.E.2d 75 (2000).     ..........   32, 33

State v. Hall,
     187 N.C. App. 308, 653 S.E.2d 200 (2007). ..............      22

State v. Hinton,
     155 N.C. App. 561, 573 S.E.2d 609 (2002).     .............   19

State v. Israel,
     353 N.C. 211, 539 S.E.2d 633 (2000).     ..................   30

State v. Johnson,
     212 N.C. 566, 194 S.E. 319 (1937).     ....................   31

State v. Johnson,
     295 N.C. 227, 244 S.E.2d 391 (1978).     ..................   19

State v. Lewis,
     188 N.C. App. 308, 654 S.E.2d 808 (2008).     .............   19

State v. Maines,
     301 N.C. 669, 273 S.E.2d 289 (1981).     ..................   23

State v. Marshall,
     ___ N.C. App. ___, 696 S.E.2d 894 (2010).     .............   22

State v. Marze,
     22 N.C. App. 628, 207 S.E.2d 359 (1974).     ..........   25, 29

State v. McCall,
     162 N.C. App. 64, 589 S.E.2d 896 (2004).     ..............   18

State v. McNair,
     72 N.C. App. 681, 325 S.E.2d 274 (1985).     ..........   23, 24

State v. Odom,
     307 N.C. 655, 300 S.E.2d 375 (1983).     ..................   18

State v. Peoples,
     167 N.C. App. 63, 604 S.E.2d 321 (2004).     ..............   30

State v. Roberts,
     276 N.C. 98, 171 S.E.2d 440 (1970).     ...................   31
                                  vi



State v. Robledo,
     193 N.C. App. 521, 668 S.E.2d 91 (2008).     ..............    29

State v. Sierra,
     335 N.C. 753, 440 S.E.2d 791 (1994).     ..................    18

Staton v. Brame,
     136 N.C. App. 170, 523 S.E.2d 424 (1999).     .............    23

United States v. Hope,
     545 F.3d 293 (5th Cir. 2008).     .........................    32

               STATUTES, CONSTITUTIONAL PROVISIONS,
                   RULES, AND OTHER AUTHORITIES

N.C. Gen. Stat. § 7A-27(b) (2009).     ..........................    3

N.C. Gen. Stat. § 8C-1, Rule 401 (2009).     ...................    21

N.C. Gen. Stat. § 8C-1, Rule 402 (2009).     ...................    21

N.C. Gen. Stat. § 8C-1, Rule 404(a)(1) (2009).     .............    21

N.C. Gen. Stat. § 14-288.8 (2009).     .........................    29

N.C. Gen. Stat. § 14-415.1 (2009).     .........................    29

N.C. Gen. Stat. § 15A-1443(a) (2009).     ......................    23

N.C. Gen. Stat. § 15A-1444(a) (2009).     .......................    3

N.C. Gen. Stat. § 15A-1446(a) (2009).     ......................    18

N.C. Gen. Stat. § 15A-1446(b) (2009).     ......................    18

N.C. Gen. Stat. § 90-108(a)(7) (2009).     .....................    32

U.S. Const., Amend. V.     .....................................    33

U.S. Const., Amend. VI.    ....................................     20

U.S. Const., Amend. XIV.     ...............................   20, 33

N.C. Const., Art. I, § 24.     .................................    20

18 U.S.C. § 922(g)(1).     .....................................    32
                                vii



N.C.R. App. P. 2.   ..........................................    19

N.C.R. App. P. 10(a)(4).    ...................................   18

N.C.P.I. -- Crim. 104.40.    ..................................   17
No.   COA10-1263                            EIGHTH JUDICIAL DISTRICT


                   NORTH CAROLINA COURT OF APPEALS

                   *******************************

STATE OF NORTH CAROLINA            )
                                   )               From Wayne County
      v.                           )     Nos. 08CRS52796, 52798-800,
                                   )              52832-37, 52839-44
ANTHONY JEROME LEE,                )              09CRS387, 389, 391
     Defendant                     )


                   *********************************

                      DEFENDANT-APPELLANT’S BRIEF

                   *********************************

                          QUESTIONS PRESENTED

I.    DID THE COURT COMMIT PLAIN ERROR BY NOT DECLARING A
      MISTRIAL ON ITS OWN MOTION, WHEN POTENTIAL JUROR NO. 6, A
      DEPUTY SHERIFF, VOLUNTEERED DURING VOIR DIRE THAT HE KNEW
      “SOME OF MR. LEE’S RECORD” AND HAD “DEALT WITH HIM IN
      DISTRICT COURT,” THEREBY IRREPARABLY TAINTING WITH
      IRRELEVANT AND PREJUDICIAL INFORMATION THE ENTIRE JURY
      POOL?

II.   DID THE COURT ERR BY GIVING AN INSTRUCTION ON THE DOCTRINE
      OF RECENT POSSESSION, OVER THE DEFENDANT’S OBJECTION, WHEN
      THE INSTRUCTION WAS NOT SUPPORTED BY THE EVIDENCE?

III. DID THE COURT ERR BY DENYING MR. LEE’S MOTIONS DISMISS THE
     CHARGES FOR INSUFFICIENT EVIDENCE?

                        STATEMENT OF THE CASE

      The action of State of North Carolina v. Anthony Jerome Lee,

Wayne County Files Nos. 09CRS52796A, 52798-800A, 08CRS52832-37A,

52839-44A, and 09CRS387A, 389A, and 391A, alleging 12 counts of

armed robbery, nine counts of possession of a weapon of mass
                                 2


destruction, two counts of second degree kidnapping, 12 counts of

being a felon in possession of a firearm, and four counts of being

an habitual felon, came on for jury trial in the General Court of

Justice, Superior Court Division, County of Wayne, at the 29

September 2009 Criminal Session, the session extended to and

including 9 October 2009, the Honorable Marvin K. Blount, III,

judge presiding.   At the close of the State‟s case-in-chief, the

State abandoned the two kidnapping charges, and, after the

Defendant‟s defense-in-chief and the State‟s case in rebuttal, the

remaining predicate offenses went to the jury.   The jury returned

verdicts of not guilty on the charges of armed robbery and

possession of weapon of mass death and destruction in Files Nos.

08CRS52797A and 08CRS52838A and the charges of being a felon in

possession of a firearm in Files Nos. 08CRS52845A and 08CRS52846A,

and guilty on the remaining charges.   The State dismissed the

habitual felon charges, and the court entered judgment, sentencing

the Defendant to consecutive sentences as follows:

       117-150 months in Files Nos. 08CRS52832A (armed
       robbery and possession of WMD); 08CRS52839A (felon
       in possession); 08CRS52835A (armed robbery and
       possession of WMD); and 08CRS52842A (felon in
       possession); 117-150 months in Files Nos.
       08CRS52837A (armed robbery and possession of WMD);
       08CRS52844A (felon in possession); 08CRS52798A
       (armed robbery); and 09CRS387A (felon in
       possession); 117-150 months in Files Nos.
       08CRS52796A (armed robbery and possession of WMD);
       08CRS52847A (felon in possession); 08CRS52800A
       (armed robbery); and 09CRS391 (felon in
       possession); 117-150 months in Files Nos.
                                   3


          08CRS52833A (armed robbery and possession of WMD);
          08CRS52840 (felon in possession); 08CRS52836A
          (armed robbery and possession of WMD); and
          08CRS52843A (felon in possession); 117-150 months
          in Files Nos. 08CRS52834A (armed robbery); and
          08CRS52841A (felon in possession); and 117-150
          months in Files Nos. 08CRS52799A (armed robbery);
          and 09CRS389A (felon in possession).

The Defendant gave timely notice of appeal in open court.      The

record on appeal was filed on 11 October 2010, docketed on 18

October 2010, and mailed from the clerk‟s office on 26 October

2010.

                      GROUNDS FOR APPELLATE REVIEW

        This Court has jurisdiction pursuant to N.C. Gen. Stat. §§

7A-27(b) and 15A-1444(a) (2009).

                        STATEMENT OF THE FACTS

        Mr. Lee represented himself in the trial court.   (See, e.g.,

Pre-Trial (2/2/09) p. 8; R. pp. 46, 47, 163, 173, 349-350)      During

jury selection, after the State passed 12 jurors to Mr. Lee (T. p.

97), he challenged Jurors Nos. 2, 8, and 6 for cause (T. p. 108),

and the court allowed his challenges to Jurors Nos. 2 and 8,

removing them for cause.    (T. p. 110)   Mr. Lee exercised one of

his peremptory challenges to remove Juror No. 6 (T. p. 110) and

then one more of his peremptory challenges, removing Juror No. 9

and passing the remaining eight (8) jurors.      (T. p. 111)

        Four new potential jurors were called for voir dire.   (T. p.

111)    During the State‟s examination of Juror No. 6 (T. pp. 114-
                                   4


117), he explained that he served part-time as a deputy sheriff

and, as a result of that service, he knew “[e]verybody sitting in

this courtroom.”    (T. p. 116)   When first asked whether that was

“going to affect [his] ability to hear the evidence and be fair to

both sides,” he answered,

       . . . I really can‟t say, because I know some of
       Mr. Lee‟s record.

       MR. RICKS:    Well, did you hear --

       MR. SCUFARI: I‟ve dealt with him in district
       court. (T. p. 116)

     The State later passed the jury, including Mr. Scufari as

Juror No. 6, to Mr. Lee (T. p. 121), but Mr. Lee then challenged

him for cause, and the court allowed the challenge.     (T. p. 128)

     The State‟s predicate charges against Mr. Lee alleged a

series of 12 armed robberies and associated weapon possession

offenses.   (R. pp. 56-79, 82, 85; 219-242, 245, 248)    With three

exceptions, all the robberies were of convenience stores.    The

exceptions alleged robberies of a laundromat and two different

truck drivers.   (See T. pp. 279, 505-510, 523-525)   The jury found

Mr. Lee not guilty of the accusations associated with the two

truck drivers.   (T. p. 1387; R. pp. 398, 408, 415, 416)

     The witnesses to the robberies of the convenience stores

generally testified that the robber was masked, usually with a ski

mask, wore a camouflage jacket and a hoody, carried a sawed off

shotgun, took cash and Newport cigarettes, and left on foot.
                                  5


(See, e.g., T. pp. 200, 229-230, 249, 300, 326-327, 357-359, 431-

432, 461-463, 565-570; see also T. pp. 266-267).   One of the

witnesses of an alleged convenience store robbery, however,

testified that there were two robbers:   both disguised, taking

cash and Newport cigarettes, and one carrying a shotgun.   (T. p.

379-386)   The witnesses to the charges associated with the

robberies of the laundromat and the two truck drivers testified

similarly about the robber‟s being disguised and carrying a sawed

off shotgun, but differed from the convenience store events in

that the robber only took money, not cigarettes.   (See, e.g., T.

pp. 278-280, 506, 510, 525-526)   Some witnesses‟ testimonies

tended to show that the robber walked with a gait that was

noticeable and unusual (see, e.g., T. pp. 295, 360, 367, 374-376,

576), but others‟ testimonies tended to show that the robber‟s

gait was unremarkable.   (See, e.g., T. pp. 220-221, 244, 258, 273,

320)

       Eight of the witnesses to the robberies gave direct testimony

bearing on the masked robber‟s identity:

      Charles Don Ryan, a witness to the first convenience store
       robbery of which Mr. Lee was accused (18 March 2008),
       testified that (a) two to three weeks before the robbery he
       had witnessed, he had seen Mr. Lee come in the store one
       time, look around, and walk out without buying anything (T.
       pp. 201-202, 215), (b) “that‟s -- (indicating) the eyes that
       I seen in the -- ah, through the mask is those eyes” (T. p.
       214), and (c) he recognized Mr. Lee‟s voice at trial as the
       same as the voice of the man who robbed him (T. p. 223);

      Joshua Nicholson, a witness to the third convenience store
                               6


    robbery of which Mr. Lee was accused (29 March 2008) and who
    worked at more than one convenience store, testified that he
    had seen “the gentleman seated over on that other table”
    within a week of the robbery he had witnessed (T. p. 251, cf.
    p. 251 (worked at about four different stores, all different
    shifts for three to four months, could have seen Mr. Lee in
    any one of them, once or twice, not that often));

   Jennesa Sauls, a witness to the fourth convenience store
    robbery of which Mr. Lee was accused (6 April 2008),
    testified that she had seen Mr. Lee several days before the
    robbery and a few days afterward, which was shortly before a
    co-worker was robbed at the same store, in her store and it
    looked like he was browsing, but that she did not recognize
    him and recall that he had been in the store until she saw
    his picture in the paper (T. p. 441-442, 446, 457);

   Sadie Edmundson, a witness to the laundromat robbery, which
    was the fifth robbery of which Mr. Lee was accused (7 April
    2008), testified that she thought she had seen Mr. Lee‟s face
    and eyes before in the laundromat, but the robber‟s face was
    all covered up (T. pp. 292-293), and Mr. Lee‟s eyes looked
    familiar from the day of the robbery (T. p. 297);

   Kevin Davis, a witness to the sixth convenience store robbery
    of which Mr. Lee was accused (16 April 2008), testified that
    he had been shown a photo lineup and picked out No. 6 and
    that was not a photo of Mr. Lee (T. pp. 480, 483), indeed Mr.
    Lee‟s photo was not even in that photo lineup (T. p. 492);

   Cheryl Blum-Langley, a witness to the eighth convenience
    store robbery of which Mr. Lee was accused (21 April 2008)
    and who testified that there were two robbers, testified that
    she had seen Mr. Lee in the store a couple of times when he
    purchased Newport cigarettes and a drink (T. pp. 407, 411,
    413);

   Paul Dallas Rust, III, a witness to the second truck driver
    robbery of which Mr. Lee was accused (and acquitted) (24
    April 2008), testified that he recognized Mr. Lee‟s voice as
    the voice of the person who robbed him (T. p. 521); and

   Christopher Sheinall, a witness to the ninth convenience
    store robbery of which Mr. Lee was accused (24 April 2008),
    testified that, later in the week of that robbery, a law
    enforcement officer had shown him a photo and Mr. Sheinall
                                     7


       thought he knew “this guy” “from somewhere,” later concluded
       that he and Mr. Lee had been classmates in a criminal justice
       class at Wayne Community, that the person who robbed him was
       Mr. Lee, and identified Mr. Lee‟s Wayne Community ID for
       Spring „08 (T. pp. 572-574, 591, 594, 610, 614-615).

       Gecolia Michelle Mitchell knew Mr. Lee and had been in a

personal relationship with him in 2008.   They lived together.    In

April 2008, Investigator Dwayne Dean of the Goldsboro Police

Department (see T. p. 673) contacted her and asked if she knew Mr.

Lee and if she knew “about anything that had been going on.”      She

did not.    She had been using a car that belonged to her

grandmother, and she let the officer look in that car and later in

her apartment.    (T. pp. 638-640)

       Ms. Mitchell identified photos of several items seized from

her apartment, including the following:   two Army jackets that had

belonged to Mr. Lee, a green duffel bag, and some toboggans.      (T.

pp. 641-643)   She also identified a camouflage jacket, State‟s

Exhibit 12A, as belonging to Mr. Lee (T. p. 645); that Exhibit had

been identified by several of the witnesses to the various

robberies as the jacket, or similar to the jacket, that the robber

had worn.    (See, e.g., T. pp. 208, 237, 272, 288-289, 306, 328,

438)   She also testified that Mr. Lee smoked Newport cigarettes.

(T. p. 648)

       Investigator Dean testified that he got involved in

investigating the case about the time when law enforcement

“realized that there was a pattern with the suspect and the things
                                  8


that were being taken, the money and the cigarettes; and the sawed

off shotgun.”   (T. p. 673)   On 24 April 2008, he received a call

from a certain Linwood Hardee and, based on that call, he

developed Mr. Lee as a suspect.   Investigation of Mr. Lee‟s

background led him to Ms. Mitchell.   (T. p. 675)

     As Ms. Mitchell had testified, Investigator Dean searched the

car she used and her apartment.   He found nothing of evidentiary

value in the car, but at her apartment he found some black Nike

shoes, a black ski mask (State‟s Exhibit 13A, see T. pp. 645,

688), five packs of Newport cigarettes, an empty Newport cigarette

package, a blue knit glove, a Woodland camouflage jacket, and a

pair of black gloves.   He recognized those items as similar to

what he had seen in surveillance videos from some of the

robberies.   (T. pp. 677-678)   But none of those items were

forensically confirmed to have come from any of the robberies.

(T. pp. 706-708)

     Meanwhile, also on 24 April 2008, Officer Jeffrey Raymond

Stewart of the Goldsboro Police Department, had been assigned to

locate Mr. Lee, and he and Officer Tom Collins started looking in

the Fairview area (T. pp. 716, 754), which was near the Sunrise

Shopping Center where the laundromat was and one of the other

robbery locations.   (See T. p. 279, 716, 961)   Officer Collins

noticed a group of young men behind 1721 Holly Street, and they

parked their car so it could not be seen.   Officer Collins went on
                                  9


foot around the front, and Officer Stewart went to the back of

that address and began speaking to them.   (T. pp. 716-717, 754)

       Officer Stewart saw a person he thought might be Mr. Lee, and

as he came around the corner of the address, there were four or

five people in the group, and Mr. Lee “immediately started walking

away.”    Two others went straight inside the apartment, and two

remained seated.    Mr. Lee made it around the corner, and Officer

Stewart heard Officer Collins order him to the ground.   Officer

Collins handcuffed him, stood him up and helped him brush himself

off, and asked his name.    Mr. Lee identified himself as Anthony

Lee, and Officer Collins told him he was under arrest.   (T. pp.

717-718, 755-756)

       After a search of Mr. Lee‟s person, they walked him back

around the front towards the car and placed him in their police

car.   They were about to leave when Officer Collins noticed a

duffel bag on the front porch.   Officer Stewart said that it had

not been there when they first arrived, and Officer Collins

agreed.    Officer Collins asked Mr. Lee if it was his, and he was

silent.    Officer Collins then got out of the car and knocked on

the doors of both apartments that shared that porch and asked if

the duffel bag was theirs.   They denied that it was theirs.   The

top of the bag was open, and Officer Collins looked in and saw

razor blades similar to the one Mr. Lee had when they had searched

his person, and the razor blades were sitting on top of a
                                 10


camouflage coat.   He seized the duffel and put it in the trunk of

the police car; Officer Collins again asked Mr. Lee if it was his,

and Mr. Lee said, “No.”   Then they went to the police station, and

they turned over the duffel to Investigator Dave Cloutier.   (T.

pp. 719-720, 727, 761-764)   By pre-trial motion, Mr. Lee asked the

court to suppress the duffel bag and its contents, but the court

denied the motion.   (Pre-Trial (6/3/09), pp. 1-78; R. pp. 308-328,

340-343)

     Investigator Cloutier inventoried the contents of the duffel

bag, and its contents included the following:   a sawed off 12-

gauge shotgun (State‟s Exhibit 14B, see T. p. 835), a shotgun

shell from the barrel, a Woodland camouflage jacket (State‟s

Exhibit 12A, see T. p. 837), a black hooded raincoat, a gray

hoody, a pair of denim jeans, a pair of black knit gloves (State‟s

Exhibit 10A and 10B, see T. p. 842), a black toboggan (State‟s

Exhibit 154A, see T. p. 842), 30 packs of Newport menthol

cigarettes, $12.35 in U.S. currency.   (T. pp. 816-817)   Of those

items, various witnesses testified of the shotgun, the Woodland

camouflage jacket, and the black knit gloves that they were worn

or carried in the robbery or were similar to such items.    (See,

e.g., T. pp. 211-212, 207, 209, 237, 238, 254, 272, 288-290, 306-

307, 328, 365, 406, 438, 440, 468, 469, 514, 530)

     Testifying as an expert in forensic DNA analysis (T. pp. 881,

883), Sarah Johnson said that forensic DNA analysis was conducted
                                  11


on State‟s Exhibits 154A (a black toboggan from the duffel), 10A

and 10B (pair of gloves from the duffel), 13A (black ski mask from

Ms. Mitchell‟s apartment), and 14B (shotgun) and 14C (string that

had been attached to the shotgun, see T. p. 979).     The DNA

profiles obtained from State‟s Exhibits 154A and 10A and B matched

Mr. Lee‟s DNA profile.   A partial DNA profile from State‟s Exhibit

13A matched Mr. Lee‟s profile.    A DNA mixture was obtained from

State‟s Exhibit 14C, and Mr. Lee‟s profile could not be excluded

from that mixture.   (T. pp. 885-890)

     Ms. Johnson also explained, however, that the results of her

analysis were limited to items of clothing and that DNA can be

transferred from person to person and from item to item.    If Mr.

Lee had worn a hat and given it to someone else, his DNA would be

expected to be on the hat.   But the presence of Mr. Lee‟s DNA on

such a hat would not necessarily mean that he had anything to do

with whatever the person who had received the hat had done.      No

conclusive DNA profile was obtained from the Woodland camouflage

jacket, the gray hoody, or the raincoat.   (T. pp. 894, 901-903)

     A Wayne County assistant clerk of court authenticated a

judgment and commitment order showing that Mr. Lee had been

convicted of felony possession of cocaine with a date of offense

of 12 May 1994 and a date of conviction of 9 August 1994.       Mr. Lee

had pled guilty to that charge.    (T. pp. 950-954)

     At the close of the State‟s case, Investigator Dean was
                                 12


recalled (T. pp. 956-1018) and testified that the shotgun (State‟s

Exhibit 14B) had a barrel 14 ¼ inches long and a total length of

20 ½ inches and that it had been tested and would fire.   (T. pp.

973-974)

     On cross-examination, Investigator Dean testified that,

between 14 and 24 April 2008, Crime Stoppers had received five

tips about the series of robberies, identifying three persons

other than Mr. Lee and one that said the robber stayed in the 900

block of Fairview Circle, on the even side of the street.    (T. pp.

988-989)   Of the three items with Mr. Lee‟s DNA, the black ski

mask was from Ms. Mitchell‟s apartment that she shared with Mr.

Lee, and it was probable that anything from Mr. Lee‟s residence

would have had his DNA.   Further, if Mr. Lee had given away his

hat or gloves, those items would have had his DNA on them.      Of all

the evidence seized from his residence, nothing was confirmed to

have been involved in a robbery, and, although some of those items

were similar to things seen in a robbery, none of those “similar”

items would be unusual to have in a person‟s residence.   (T. pp.

1001, 1010)   He also testified that there were times when the

robber did not wear camouflage, that there were two suspects in

one of the robberies, and that there had been other robberies

during the same time period.   (T. pp. 1002-1003)

     The State rested, and Mr. Lee moved to dismiss all the

charges for insufficient evidence.    The State abandoned the
                                   13


kidnapping charges.    (T. p. 1030)     The court denied the motion to

dismiss, but dismissed the kidnapping charges on the basis of the

State‟s abandonment.    (T. p. 1050)

        Mr. Lee then told the court that he intended to recall three

witnesses who had already testified in the State‟s case-in-chief

-- i.e., Jenessa Sauls, Cheryl Langley, and Christopher Sheinall

-- and two new witnesses:    Ali Elayah and John Coda.

        Ali Elayah testified that on 20 November 2008, his store had

been robbed.    Two people had come in, masked and covered, one of

whom wore gloves and carried a gun.       The robbers told him to give

them money, and they also took Newport cigarettes.      (T. p. 1079)

        John Coda was a private investigator who testified about

medical records produced by Wayne Memorial Hospital tending to

show that Mr. Lee had been treated on 9 August 2006 for a wound to

his left foot from a lawnmower having been dropped on his foot.

Mr. Lee walks with a limp, and Mr. Coda understood that the limp

was a result of that injury.    He had also tried to contact Linwood

Hardee at the address given, but that address did not exist, and

he had never been able to find Mr. Hardee.      (T. pp. 1091, 1093-

1097)

        Ms. Langley testified to video surveillance during the

robbery.    Although she had told the police that there were two

suspects and two guns, in the video only one gun could be seen.

On the video, she could not tell which robber had the longer gun.
                                    14


(T. pp. 1108-1110, 1116)    She had seen Mr. Lee limp when he

approached the bench earlier, but she had no idea how long he had

had that limp.   (T. p. 1117)   On cross-examination, Ms. Langley

testified that, after hearing Mr. Lee‟s voice in court, she

recognized it as the same voice she had heard before and during

the robbery.   (T. pp. 1119-1120)

     Mr. Lee had announced that he intended to recall Ms. Sauls

during his defense-in-chief.    After Ms. Langley‟s testimony in Mr.

Lee‟s case in defense, the court asked why he intended to call Ms.

Sauls and Mr. Sheinall.    He explained that he “wished to question

Mr. Sheinall on the video” and “Ms. Jenessa Sauls, I wish to

question her on her previous -- well, I mean not on the video, but

ah -- I believe I have a right to cross-examine and state my . . .

my defense.”   (T. p. 1124)   The court decided that there was no

legitimate purpose to recall Ms. Sauls and her presence was not

required.   (T. pp. 1125, 1127)

     Investigator Dean had previously testified about Defendant‟s

Exhibit A, a newspaper article dated 21 November 2008 from the

Goldsboro News Argus.   That article had reported a robbery of a

store, taking currency, checks, and Newport cigarettes, and Mr.

Lee was in custody at the time of that robbery.   But Investigator

Dean distinguished it from the robberies charged against Mr. Lee

because there were two robbers, a handgun was used, and the

robbers left by car, rather than on foot as in the robberies in
                                   15


Mr. Lee‟s case.    (See T. pp. 1004-1007)

        When recalled, Investigator Dean testified about a second

article, dated 10 April 2009, from the Goldsboro News Argus,

Defendant‟s Exhibit B.    That robbery took $700.00 worth of Newport

cigarettes and $1,000.00 cash from Moe‟s Grill and Convenience

Store; the suspects had entered by shattering the front door

glass, causing $400.00 damage.     Investigator Dean did not think it

possible that whoever committed the robbery reported in

Defendant‟s Exhibit B was similar except for the Newport

cigarettes taken.    Defendant‟s Exhibits A and B were admitted and

published.    (T. pp. 1136-1139)

        When recalled for Mr. Lee‟s defense-in-chief, Mr. Sheinall

testified that, although he had previously testified that he had

not noticed the robber with a hoody, he “t[ook] it back.”     (T. p.

1154)

        Following Mr. Sheinall‟s testimony, Mr. Lee rested his

defense and renewed his motions to dismiss.    The court denied his

motions to dismiss.    (T. pp. 11166, 1174, 1177)

        The State called two law enforcement officers in rebuttal:

Richard Winders of the Wayne County Sheriff‟s Office and Brandon

Greenfield of the Goldsboro Police Department.      Officer Winders

had investigated the robbery of the Elayah Food Mart on 20

November 2008, and was aware of the series of robberies in the

area involving Newport cigarettes and a sawed-off shotgun.       The
                                   16


Elayah robbery involved two robbers, taking cash, checks, and two

cartons of Newport cigarettes, and leaving in a car.    They used a

handgun.    The Elayah robbery was not considered similar to the

series of others.    (T. pp. 1179-1181)

        Officer Greenfield testified that, on 13 March 2008, he had

completed two “Field Contact Sheets,” forms used in his department

when an officer encounters someone “suspicious” and notes basic

background information.    The first recorded Mr. Lee‟s name as a

person he had encountered, and noted that it was a “suspicious

vehicle,” that he was wearing a black leather jacket, a gray

hoody, blue jeans, and gray New Balance shoes.    When Officer

Greenfield approached Mr. Lee, Mr. Lee gave his name as “Tony

Lee.”

        The second “Field Contact Sheet” recorded Linwood Earl

Hardee‟s name.    Mr. Hardee and Mr. Lee were together, and Officer

Greenfield encountered both of them at 7:45 a.m.    Officer

Greenfield identified State‟s Exhibit 80A (gray hoody taken from

the duffel bag seized by Officer Collins, T. p. 838, and

identified as similar to one worn by the robber by some witnesses,

see T. pp. 364, 438, 468, 513-514, 586) as the hoody that Mr. Lee

was wearing when he encountered him on 13 March 2008.    (T. pp.

1188, 1192-1193)

        The State rested its case-in-rebuttal, and Mr. Lee renewed

his motions to dismiss, which the court denied.    (T. pp. 1202)
                                   17


Then the court conducted the charge conference.      (T. pp. 1209-

1250)    Mr. Lee objected to the court‟s proposal to give an

instruction on the doctrine of recent possession, N.C.P.I. --

Crim. 104.40, but the court opined that it should go to the jury,

and it was given.    (T. pp. 1303-1304; R. p. 379)

        After closing arguments (T. pp. 1254-1259, 1260-1264, 1265-

1298), the court instructed the jury (T. pp. 1299-1351, 1358-1363;

R. pp. 378-296), and the case went to the jury.

        The jury returned verdicts of not guilty in Files Nos.

08CRS52838A, 52845A, 52797A, and 52846A (R. pp. 398, 408, 415-416;

cf. 439-441) and guilty verdicts on the remaining charges.       (T. p.

1388; R. pp. 397, 399-407, 409-414, 417-420)

        Mr. Lee then asked the court to appoint his stand-by counsel

as counsel for the habitual felon phase, and the court allowed the

request.    (T. pp. 1389-1390; see p. 447)   The State, however,

abandoned the habitual felon charges and asked the court to

proceed to sentencing.    (T. p. 1392; see R. pp. 443-446)   The

court then sentenced Mr. Lee to six consecutive terms of

imprisonment for 117 to 150 months (T. pp. 1399-1403; R. pp. 423-

438), for an aggregate term of 58 ½ to 75 years, imprisonment.

Mr. Lee gave oral notice of appeal on all counts in open court (T.

p. 1405) and now seeks relief from this Court.
                                  18



                              ARGUMENT I

          THE COURT COMMITTED PLAIN ERROR BY NOT DECLARING
          A MISTRIAL ON ITS OWN MOTION, WHEN POTENTIAL
          JUROR NO. 6, A DEPUTY SHERIFF, VOLUNTEERED DURING
          VOIR DIRE THAT HE KNEW “SOME OF MR. LEE’S RECORD”
          AND HAD “DEALT WITH HIM IN DISTRICT COURT,”
          THEREBY IRREPARABLY TAINTING WITH IRRELEVANT AND
          PREJUDICIAL INFORMATION THE ENTIRE JURY POOL.

A.   Standard of Review

     Because no objection was raised, the Court may refuse to

review this assignment of error.       N.C. Gen. Stat. § 15A-1446(a)

(2009).    Nevertheless, in the interest of justice, the Defendant

respectfully seeks this Court‟s review because the error affects

substantial rights, see N.C. Gen. Stat. § 15A-1446(b) (2009),

and it is specifically and distinctly contended that the trial

court‟s failure to declare a mistrial on its own motion in Mr.

Lee‟s case amounts to plain error.      N.C.R. App. P. 10(a)(4).

     The Defendant acknowledges that plain error review is

typically limited to evidentiary and jury instruction questions,

See State v. Sierra, 335 N.C. 753, 761, 440 S.E.2d 791, 796

(1994) (reviewing evidentiary question); State v. Collins, 334

N.C. 54, 61-62, 431 S.E.2d 188, 193 (1993) (reviewing jury

instruction question); State v. Odom, 307 N.C. 655, 300 S.E.2d

375 (1983) (adopting plain error rule in jury instruction

question), and is not generally available for a court‟s failure

to declare a mistrial on its own motion, State v. McCall, 162
                                19


N.C. App. 64, 70, 589 S.E.2d 896, 900 (2004) (holding that plain

error review not available to review trial court‟s failure to

declare a mistrial sua sponte when it learned that individuals

in the courtroom had been signaling to the victim during her

testimony), but the Defendant respectfully calls to the Court‟s

attention the case of State v. Hinton, 155 N.C. App. 561, 563-

64, 573 S.E.2d 609, 611-12 (2002), where this Court did review a

court‟s failure to declare a mistrial on its own motion on the

basis of a conversation between a witness and two jurors.

     On the basis of Hinton and this Court‟s Rule 2, N.C.R. App.

P., the Defendant respectfully asks this Court to take up this

question for plain error review and reverse if it is a “grave

error which amounts to a denial of a fundamental right of the

accused,” and the error “would have had a probable impact on the

jury‟s finding that the Defendant was guilty.”   State v. Black,

308 N.C. 736, 740, 741, 303 S.E.2d 804, 806, 807 (1983).

B.   Discussion

     “Courts generally seek to ensure litigants are protected

against improper influences by court officers and other third

parties to the litigation; however, if it does not appear that a

conversation between a juror and a stranger „was prompted by a

party, or that any injustice was done to the person complaining,

and he is not shown to have been prejudiced thereby,‟ a verdict

will not be disturbed.”   State v. Lewis, 188 N.C. App. 308, 311,
                                  20


654 S.E.2d 808, 810 (2008) (quoting State v. Johnson, 295 N.C.

227, 234, 244 S.E.2d 391, 395 (1978)).    Failure to protect a

criminal defendant from such improper communication deprives the

accused of the fundamental right to a fair trial before an

impartial jury.     U.S. Const., Amend. VI, XIV; N.C. Const., Art.

I, § 24; see Morgan v. Illinois, 504 U.S. 719, 727, 112 S. Ct.

2222, 2228, 119 L. Ed. 2d 492, 501 (1992) (quoting Irvin v.

Dowd, 366 U.S. 717, 721-22, 81 S. Ct. 1639, 1641-42, 6 L. Ed. 2d

751, 755 (1961)).

    The court did not protect Mr. Lee from Juror No. 6‟s

remarks that improperly placed before the jurors information

tending to show that Mr. Lee had a criminal “record,” and it was

a “record” such that a part-time deputy sheriff was familiar

with it.   Those remarks were prompted by a party, namely,

counsel for the State, thus:

       MR. RICKS: I take it, since you work part-time up here
       at the courthouse, you know just about everybody up here?

       MR. SCRUFARI:     Everybody sitting in this courtroom, yes.

       THE COURT: Okay. Is that going to -- and you said that
       you do this part-time, right? You‟re not a full-time?

       MR. SCRUFARI:     Yes.

       MR. RICKS: Is that going to affect your ability to hear
       the evidence and be fair to both sides?

       MR. SCRUFARI: . . . I really can‟t say, because I know
       some of Mr. Lee‟s record.

       MR. RICKS:     Well, did you hear --
                                 21



       Mr. SCRUFARI:   I‟ve dealt with him in district court.
       (T. p. 116)

    Without raising any claim that counsel for the State

intended to elicit information from Mr. Scrufari tending to show

that Mr. Lee had a previous criminal record, it is nevertheless

correct that his question is what prompted Mr. Scrufari to

disclose that information to the jury.   Because that information

about his “record” and appearances “in district court” could

only have gone to show Mr. Lee‟s character, counsel for the

State would not have been permitted to elicit that information

from a witness.   N.C. Gen. Stat. § 8C-1, Rule 404(a)(1) (2009).

His “record” and appearances “in district court” did not tend to

make more or less likely his guilt or innocence of the offenses

charged against him, and so the information was not relevant.

See N.C. Gen. Stat. § 8C-1, Rule 401 (2009).   Not being

relevant, of course, it would not be admissible.   N.C. Gen.

Stat. § 8C-1, Rule 402 (2009).

    Just as admission of a police officer‟s testimony that the

officer had known a defendant under an alias improperly

permitted the inference that the defendant “had been involved in

some other crime,” and, therefore, required a new trial, State

v. General, 91 N.C. App. 375, 380-381, 371 S.E.2d 784, 788

(1988), so also the part-time deputy‟s disclosure that he knew

Mr. Lee‟s “record” and had “dealt with him in district court”
                                22


improperly tainted the jury pool by permitting the inference

that Mr. Lee “had been involved in some other crime” or crimes.

It was irrelevant and prejudicial.   It tainted the entire jury

pool, depriving Mr. Lee of his fundamental right to trial by an

impartial jury.   Because the taint was irreparable, the court

should have declared a mistrial on its own motion.   Mr. Lee

respectfully asks for a new trial before an impartial jury.

                            ARGUMENT II

       THE COURT ERRED BY GIVING AN INSTRUCTION ON THE
       DOCTRINE OF RECENT POSSESSION, OVER THE
       DEFENDANT’S OBJECTION, WHEN THE INSTRUCTION WAS
       NOT SUPPORTED BY THE EVIDENCE.

A.   Standard of Review

     This Court reviews jury instructions in their entirety

looking to determine whether, in context, an erroneous

instruction likely misled the jury, and

       [t]he [jury] charge will be held to be sufficient
       if it presents the law of the case in such manner
       as to leave no reasonable cause to believe the
       jury was misled or misinformed. . . . .. The
       party asserting error bears the burden of showing
       that the jury was misled or that the verdict was
       affected by [the] instruction. Under such a
       standard of review, it is not enough for the
       appealing party to show that error occurred in
       the jury instructions; rather, it must be
       demonstrated that such error was likely, in light
       of the entire charge, to mislead the jury. State
       v. Marshall, ___ N.C. App. ___, ___, 696 S.E.2d
       894, 896-897 (2010) (quoting State v. Hall, 187
       N.C. App. 308, 316, 653 S.E.2d 200, 207 (2007).

Moreover, because the jury instruction must present the law of
                                 23


the case, it presents a question of law, and this Court reviews

questions of law de novo.    Staton v. Brame, 136 N.C. App. 170,

174, 523 S.E.2d 424, 427 (1999) (citing Al Smith Buick Co. v.

Mazda Motor of America, 122 N.C. App. 429, 433, 470 S.E.2d 552,

554, cert. denied and disc. review denied, 343 N.C. 749, 473

S.E.2d 609 (1996)).    Upon a showing of prejudice, this Court

shall reverse.    N.C. Gen. Stat. § 15A-1443(a) (2009).

B.   Discussion

     Mr. Lee objected to the court‟s proposal to give an

instruction on the doctrine of recent possession.    (T. p. 1223)

The objection should have been well-taken and the instruction

not given because it was not supported by the evidence in two

respects.

     1.     Possession was not to the exclusion of others.

     The test for the use of the doctrine requires the showing

that “the stolen goods were found in defendant‟s custody and

subject to his control to the exclusion of others, though not

necessarily found in the defendant‟s hands or on his person so

long as defendant had the power and intent to control the

goods.”   State v. McNair, 72 N.C. App. 681, 683, 325 S.E.2d 274,

275 (1985) (emphasis added).    As the Supreme Court explained,

“for the inference to arise, the possession in defendant must be

to the exclusion of all persons not party to the crime.”     State

v. Maines, 301 N.C. 669, 675, 273 S.E.2d 289, 294 (1981)
                                24


(emphasis added).

    In Mr. Lee‟s case, the only possible candidates for the

“stolen property” that the State‟s case presented were Newport

cigarettes:   some found in the duffel bag and some found at Ms.

Mitchell‟s apartment that Mr. Lee shared with her for a time.

(T. pp. 639, 678 (apartment), 719-720, 756, 762-764, 816

(duffel))   In neither location were the Newport cigarettes

subject to Mr. Lee‟s exclusive control.   Those found at Ms.

Mitchell‟s apartment were, of course, also subject to Ms.

Mitchell‟s control, and there was no evidence at all about how

long they had been there, so it was not even shown that the

Newport cigarettes were “recently” stolen, see State v.

Gonzalez, 311 N.C. 80, 86 n. 4, 316 S.E.2d 229, 232 n. 4 (1984)

(“The doctrine is often referred to as the doctrine of recent

possession of stolen goods or simply the doctrine of recent

possession.   However, the doctrine is more correctly stated in

terms of possession of recently stolen goods.”), or, for that

matter, that they were even “stolen.”

    In the case of the Newport cigarettes found in the duffel,

it is not at all clear who had possession of the duffel and its

contents “to the exclusion of others.”    McNair, 72 N.C. App. at

683, 325 S.E.2d at 275.   Office Collins asked Mr. Lee if it was

his, and Mr. Lee was first silent and later denied ownership.

Officer Collins asked people in the two apartments that shared
                                 25


the porch where the duffel was first -- and only ever -- seen,

and they denied ownership.   (T. p. 763)   In ruling on Mr. Lee‟s

motion seeking to suppress the duffel and evidence from it (R.

pp. 201-218), the court concluded as a matter of law that “the

duffel bag found on the porch area of 1721 Holly Street was

abandoned property since neither resident of that address

claimed the duffel bag, and the Defendant denied ownership of

the duffel bag.”   (R. p. 342)   Further undermining the

applicability of the doctrine of recent possession with respect

to the Newport cigarettes from the duffel is the distance from

Mr. Lee -- somewhere behind and outside the housing unit -- to

the front porch of the duplex housing unit.    See State v. Marze,

22 N.C. App. 628, 631, 207 S.E.2d 359, 362 (1974) (doctrine of

recent possession inapplicable where stolen property located “in

the woods fifty feet from the defendant‟s parked vehicle,” held

evidence insufficient, conviction reversed).

    2.   The Newport cigarettes were not specifically
         identified as stolen from any victim.

    Not only must the evidence show that the property at issue

was possessed by the defendant “to the exclusion of all others,”

but the evidence must also show that the “property shown to have

been possessed by the accused was the stolen property.”     State

v. Fair, 291 N.C. 171, 174, 229 S.E.2d 189, 190 (1976).    In

other words, “[t]he identity of the fruits of the crime must be
                                  26


established before the presumption of recent possession can

apply.”    State v. Foster, 286 N.C. 480, 485, 151 S.E.2d 62, 65

(1966).

    In Mr. Lee‟s case involving Newport cigarettes, which are

of wide and common distribution, it was insufficient merely to

show that Newport cigarettes were taken and that Newport

cigarettes were found.    There must have been evidence that the

Newport cigarettes found were, in fact, the very Newport

cigarettes taken from one or more of the convenience stores

robbed.

    The Supreme Court‟s reasoning in Foster is instructive.        In

Foster, the State had “ample evidence” that six Phillips “66”

automobile tires were stolen from the victim, and that within

four days of the theft the defendant was found driving an

automobile with four new Phillips “66” tires on it and the next

day two more new Phillips “66” tires were found at the

defendant‟s garage and body shop business.    Further, the victim

swore that the six Phillips “66” tires found in the defendant‟s

possession were “the same size, tread design, and in the same

order as those that got away from [his] service station.”     In

the face of that evidence, however, the Supreme Court explained,

          It is a fact of common and general knowledge that
          Phillips Petroleum Company manufactures and sells
          thousands of Phillips „66‟ automobile tires
          throughout the United States similar to those
          that were stolen from Floyd Hinson‟s service
                                27


       station. Even if we concede that these six
       Phillips „66‟ automobile tires were stolen, there
       is no evidence that they were stolen from Floyd
       Hinson‟s service station and were Floyd Hinson‟s
       property. Foster, 286 N.C. at 485, 151 S.E.2d at
       66.

“Consequently,” the Supreme Court immediately added, “the rule

of recent possession of stolen property cannot apply to these

six automobile tires.”   The judgment on the charge respecting

the stolen tires was vacated.   Foster, 286 N.C. at 485-486, 151

S.E.2d at 66.

    The State may object that “it is not necessary that stolen

property be unique to be identifiable.   Often stolen property

consists of items which are almost devoid of identifying

features, such as coins and goods which are mass produced and

nationally distributed under a brand name,” State v. Carter, 122

N.C. App. 322, 338, 470 S.E.2d 74, 78 (1996), and that Newport

cigarettes fall within that category of property.    But the facts

in Carter showed considerably more evidence tying the property

possessed by the defendant to the property stolen.

    Specifically, in Carter, the defendant was charged with

larceny of “three MacIntosh personal computers, two Quantum

computer hard drives, one Conner computer hard drive, one

computer monitor, one modem, two boxes of floppy disks, four

computer manuals, one cable and lock, one computer mouse pad,

and one tablecloth,” Carter, 122 N.C. App. at 336-337, 470
                                    28


S.E.2d at 78, and the defendant complained on appeal that “the

mousepad and the tablecloth were not sufficiently identified as

stolen property.”      Carter, 122 N.C. App. at 338, 470 S.E.2d at

78.    In overruling the defendant‟s claim, this Court pointed

out,

            the evidence presented by the State showed: that
            the cable and lock which were found in
            defendant‟s car were clearly and positively
            identified as coming from the computer lab from
            which the larceny occurred; . . . that defendant
            was seen flinging items into a dumpster; that the
            items that were on the top of the dumpster
            immediately after defendant deposited items into
            it, were manuals that were of the same type used
            in the computer lab and were found to be missing;
            that one of the manuals was the only such manual
            on campus. Carter, 122 N.C. App. at 338, 470
            S.E.2d at 78 (emphasis added).

In other words, in Carter, although some property may not have

been “sufficiently identified as stolen property,” there was

other property “clearly and positively identified” as property

that had been taken from the victim.      That cannot be said of any

of the Newport cigarettes presented in Mr. Lee‟s case, neither

those from Ms. Mitchell‟s apartment nor those from the duffel

bag.    Consequently, on this ground as well, the instruction was

not supported by the evidence.

       3.     The instruction prejudiced Mr. Lee.

       And the instruction likely affected the verdict because, as

the court explained in its instruction, “The State seeks to

establish the defendant‟s guilt by the doctrine of recent
                                29


possession.”   (T. p. 1303; R. p. 379) (emphasis added).   Because

the evidence did not show that the Newport cigarettes, whether

from Ms. Mitchell‟s apartment or the abandoned duffel, were in

Mr. Lee‟s control to the exclusion of others, and also because

the evidence did not identify the Newport cigarettes as the

property stolen from any of the several victim convenience

stores, the instruction should not have been given and the jury

should not have been permitted to apply that legal doctrine to

the facts of Mr. Lee‟s case.   As in Marze and Foster, he is

entitled to have the robbery convictions reversed, because the

evidence was insufficient to sustain the conviction on the

theory charged to the jury, or, in the alternative, to have them

vacated and remanded for a new trial before a properly

instructed jury.

                           ARGUMENT III

       THE COURT ERRED BY DENYING MR. LEE’S MOTIONS
       DISMISS THE CHARGES FOR INSUFFICIENT EVIDENCE.

A.   Standard of Review

     “This Court reviews the denial of a motion to dismiss for

insufficient evidence de novo,” State v. Robledo, 193 N.C. App.

521, 525, 668 S.E.2d 91, 94 (2008), and, on such review, it

looks to determine “whether the State has offered substantial

evidence of each required element of the offense charged.”

State v. Goblet, 173 N.C. App. 112, 118, 618 S.E.2d 257, 262
                                30


(2005).   “Substantial” evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.   State v. Israel, 353 N.C. 211, 216, 539 S.E.2d 633,

636 (2000).   The motion should be allowed if the evidence is

sufficient only to raise a suspicion or conjecture as to either

the commission of the offense or the identity of the defendant

as the perpetrator of it.   State v. Peoples, 167 N.C. App. 63,

66-67, 604 S.E.2d 321, 324 (2004).

B.   Discussion

     As set out in Argument II above, with respect to the

robbery charges, the evidence was insufficient to sustain the

convictions on the theory of the doctrine of recent possession

charged to the jury, and those convictions should be reversed

for that infirmity.

     With respect to the weapon possession charges -- both

possession of a weapon of mass death and destruction, N.C. Gen.

Stat. § 14-288.8 (2009), and possession of a firearm by a felon,

N.C. Gen. Stat. § 14-415.1 (2009) -- the evidence at trial

tended to show that a single weapon was at issue, namely,

State‟s Exhibit 14B:   the sawed off shotgun from the duffel bag.

(T. pp. 211, 982)   The evidence tended to show that the robber

first possessed it during the first robbery on 18 March 2008

(see T. p. 211), and its possession appeared at every following

robbery in the series through the last robbery on 24 April 2008.
                                  31


(See T. pp. 238, 254, 288, 306-307, 328, 365, 406, 440, 469,

514, 530)

    Our courts have held that, with respect to possession of

controlled substance and possession of stolen property,

possession is a continuing offense, beginning at the time of

receipt and continuing until the possessor is divested of the

contraband.     State v. Roberts, 276 N.C. 98, 104, 171 S.E.2d 440,

444 (1970) (“possession of lysergic acid diethylamide,” “a

continuing offense, committed wherever, whenever, and so long as

a person has such substance in his possession”); State v. Davis,

302 N.C. 370, 374, 275 S.E.2d 491, 494 (1981) (“unlawful receipt

of stolen property is a single, specific act occurring at a

specific time; possession, however, is a continuing offense

beginning at the time of receipt and continuing until

divestment”).    And this Court has applied the “possession”

reasoning from Davis to the possession of other contraband,

specifically, “illicit images.”     State v. Anderson, 194 N.C.

App. 292, 299, 669 S.E.2d 793, 798 (2008), rev. denied, 362 N.C.

90, 675 S.E.2d 659 (2009).

    Indeed, relying on the Supreme Court‟s decades old

definition of a “continuing offense” as a “breach of the

criminal law not terminated by a single act or fact, but which

subsists for a definite period and is intended to cover or apply

to successive similar obligations or occurrences,” State v.
                                32


Johnson, 212 N.C. 566, 570, 194 S.E. 319, 322 (1937), this Court

held that maintaining a dwelling for use of a controlled

substance, N.C. Gen. Stat. § 90-108(a)(7) (2009), was a

continuing offense for which a person could not be convicted

twice when one count charged the date of offense on 22 July 1997

and the second count charged the date of offense on 22 August

1997 and there was no evidence showing “the termination and

subsequent resumption of drug trafficking” at the dwelling.

State v. Grady, 136 N.C. App. 394, 400, 524 S.E.2d 75, 79 (2000)

(holding that, absent evidence showing termination and

subsequent resumption of drug trafficking activity at the

dwelling, “two convictions of the statute forbidding the keeping

and maintaining of a dwelling for purposes related to use,

storage, or sale of controlled substances violates the

constitutional prohibition against double jeopardy,” and

collecting cases applying the “continuing offense” rationale to

willful failure to support child, kidnapping, and conspiracy);

see also United States v. Hope, 545 F.3d 293 (5th Cir. 2008)

(reviewing for plain error and holding that, for purposes of the

federal law prohibiting possession of a firearm by a felon, 18

U.S.C. § 922(g)(1), “possession” constitutes a “course of

conduct, not an act,” and vacating one of two convictions).

    So also in the case of all the weapon possession charges

against Mr. Lee:   Even if he was the robber, absent evidence
                                 33


that he was divested of the sawed off shotgun after the

possession of that firearm in the first robbery on 18 March

2008, the evidence was not sufficient to support the charges in

the remaining cases without violating the constitutional

provision against double jeopardy, U.S. Const., Amend. V, XIV,

because the evidence did not show that the possession on each

subsequent date of offense was a new possession, as required by

the reasoning of Davis and Grady.

    Consequently, even if the Court rejects his argument that

the evidence was insufficient to support the robbery convictions

on the instructed theory of the doctrine of recent possession,

he is still entitled to have his convictions vacated in all the

weapons possession offenses after the first date of offense of

18 March 2008, specifically, his convictions in the following

files:

         08CRS52796[A]1, count 2 (possess WMD) (Date of
         Offense: 4/24/08); 08CRS52847[A] (felon in
         possession) (Date of Offense: 4/24/08);
         09CRS391[A] (felon in possession) (Date of
         Offense: 4/16/08); 08CRS52837[A], count 2
         (possess WMD) (Date of Offense: 4/21/08);
         08CRS52844[A] (felon in possession) (Date of
         Offense: 4/21/08); 09CRS387[A] (felon in
         possession) (Date of Offense: 4/9/08);
         09CRS389[A] (felon in possession) (Date of

1
  The written judgment and commitment orders in do not include
the “A,” which distinguished the superseding indictments from
the original indictments (compare R. pp. 54-88 with pp. 219-
251), but the court used the “A” in designating the file numbers
when announcing the judgments in open court. (T. pp. 1399-1404)
                                 34


         Offense: 4/6/08); 08CRS52835[A], count 2
         (possess WMD) (Date of Offense: 4/7/08);
         08CRS52842[A] (felon in possession) (Date of
         Offense: 4/7/08); 08CRS52833[A], count 2
         (possess WMD) (Date of Offense: 3/26/08);
         08CRS52836[A], count 2 (possess WMD) (Date of
         Offense: 4/17/08); 08CRS52840[A] (felon in
         possession) (Date of Offense: 3/26/08);
         08CRS52843[A] (felon in possession) (Date of
         Offense: 4/17/08); 08CRS52834[A], count 2
         (possess WMD) (Date of Offense: 3/29/08); and
         08CRS52841[A] (felon in possession) (Date of
         Offense: 3/29/08). (R. pp. 423, 425, 426, 428,
         429, 431, 433, 434, 436, 437).

                             CONCLUSION

     On the basis of the preceding facts, authorities, and

argument, the Defendant requests relief:   First, because the court

erred by not declaring a mistrial when potential Juror No. 6

volunteered information tending to show that Mr. Lee had a

criminal record, thereby irreparably tainting the jury pool with

irrelevant and prejudicial information, Mr. Lee requests a new

trial.   Second, because the court erred in giving an instruction

on the doctrine of recent possession, over Mr. Lee‟s objection,

when the evidence did not support the instruction and was

insufficient to sustain convictions of the robbery charges on that

theory, Mr. Lee requests that his convictions of the robbery

charges be reversed, or, in the alternative, vacated and he be

awarded a new trial.   And third, because the evidence was

insufficient to support all but the weapon possession charges

alleged on the date of 18 March 2008, Mr. Lee respectfully
                                35


requests that his convictions on those charges, as set out at the

conclusion of Argument III above, be vacated and that his case be

remanded for re-sentencing and for such other relief as is right

and proper.

     Respectfully submitted, this the 23rd day of November,

2010.

                                     CHESHIRE, PARKER, SCHNEIDER,
                                     BRYAN & VITALE



                                      /s/ John Keating Wiles
                                     John Keating Wiles
                                     N.C. State Bar # 22379
                                     133 Fayetteville Street
                                     P. O. Box 1029
                                     Raleigh, NC 27602
                                     (919) 833-3114 (TEL)
                                     (919) 832-0739 (FAX)
                                     keat.wiles@cheshirepark.com
                                 36

                     CERTIFICATE OF SERVICE

    This is to certify that a true and correct copy of the

above and foregoing Defendant-Appellant‟s Brief has been duly

served on counsel for the State by U.S. Mail to the following:

    Derrick C. Mertz
    Assistant Attorney General
    P. O. Box 629
    Raleigh, NC 27602-0629
    (919) 716-6500
    dmertz@ncdoj.gov
    ATTORNEY FOR THE STATE


    This the 23rd day of November, 2010.


                                       /s/ John Keating Wiles
                                      John Keating Wiles
                                      CHESHIRE, PARKER, SCHNEIDER,
                                      BRYAN & VITALE
                                      133 Fayetteville Street
                                      P. O. Box 1029
                                      Raleigh, North Carolina 27602
                                      (919) 833-3114
                                      keat.wiles@cheshirepark.com
                                      ATTORNEY FOR DEFENDANT

				
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