State v. Thomas, COA23-774, ___ N.C. App. ___ (Aug. 6, 2024)

In this Guilford County case, defendant appealed his convictions for possession of a stolen motor vehicle and associated charges related to several vehicle break-ins, arguing error in (1) denying his motion to dismiss, (2) admitting lay opinion testimony, and (3) sentencing defendant to a more severe sentence than his prior vacated sentence in violation of G.S. 15A-1335. The Court of Appeals found no error. 

The Court of Appeals previously considered defendant’s case and granted him a new trial in State v. Thomas, 281 N.C. App. 722 (2022) (unpublished). In 2019, the High Point Police Department investigated several vehicle break-ins and thefts, including the use of stolen credit cards from vehicles at retailers in the area. After spotting a stolen vehicle, officers pursued, but lost the vehicle and later found it abandoned. Inside were items related to several of the break-ins. The police were able to use surveillance footage and other evidence to tie the stolen vehicle and thefts to defendant. 

In (1), defendant argued that the State failed to present evidence of “lack of consent” from the owner of one of the vehicles, a van, that he broke into, because the owner did not testify. The Court of Appeals disagreed, noting that while lack of consent is an essential element of breaking and entering and larceny, circumstantial evidence can support a finding of lack of consent. Here, defendant was caught on surveillance video walking around the van, then trying the door handles to determine if the door was unlocked. After finding the door unlocked, he quickly went through the van’s contents while “rarely go[ing] more than a second without looking up at the storefront or around the parking lot.” Slip Op. at 11. Defendant then kept his headlights off until he drove away from the parking area. This circumstantial evidence supported the inference that defendant did not have consent to enter the vehicle. 

Moving to (2), defendant argued that testimony from one of the police officers identifying defendant as the person shown on surveillance video represented improper lay opinion testimony. The court noted that here the standard of review was plain error, as defendant did not object at trial, and defendant did not show that he was prejudiced by the possible error, as overwhelming evidence of his guilt was already in the record. 

Reaching (3), the court explained that G.S. 15A-1335 prohibits a more severe sentence than the prior sentence, unless the increased sentence is statutorily required. Here, the trial court added a point to defendant’s prior record level “which raised his prior record level from III to IV.” Id. at 17. The court looked to the language of the companion statute G.S. 15A-1340.14, noting that subsection (b)(6) specifies how points are assigned and does not provide for a discretionary allocation by the trial court. The court disagreed with defendant’s interpretations of applicable caselaw and the language of the relevant statutes, explaining that “[i]n the absence of any mitigating factors, the trial court was not statutorily authorized to impose any lesser sentence than the sentence entered.” Id. at 18.