Judges uphold sink-stealing conviction

Oct. 01, 2013 @ 05:27 PM

The N.C. Court of Appeals on Tuesday refused to overturn the key convictions of a Durham man imprisoned because he’d stolen a kitchen sink.

Ruling against Joshua L. Frye, 34, a three-judge appeals panel found little to quarrel with in the handling of his case last year by visiting Superior Court Judge Henry Hight.

Frye was convicted of felony breaking and entering, larceny, possession of stolen goods and of being a habitual felon.

His lawyer, N.C. Central law professor Irving Joyner, sought to overturn the judgment on the grounds that Hight had given the jury the wrong instructions, failed to allow the entry of defense evidence and failed to dismiss charges for lack of evidence.

The appeals panel – Judges Chris Dillon, Rick Elmore and Martha Geer – disagreed on each point.

Frye was accused of pillaging a vacant house on Harvard Avenue early in 2011, while looking for scrap to sell.

His defense contended that the house was abandoned, a claim that under North Carolina law could have knocked out any possibility of a larceny charge and undermined prosecution claims that Frye entered the building with the intent of committing a crime.

But Dillon, writing for the unanimous panel, said Frye, to establish abandonment, had to prove the house’s owner “intended to permanently terminate” his or her stake in it.

There was no such “clear, unequivocal and decisive evidence” in the trial record, Dillon said, likening the case to one in 1982 where someone claimed a fire-damaged building had been abandoned.

Dillon and his fellow judges also agreed Hight was correct in excluding as irrelevant evidence that the Harvard Avenue house had suffered previous break-ins.

Frye and his trial lawyer wanted the previous break-ins noted to bolster their claim that the house had been abandoned, Joyner said in a brief to the Court of Appeals.

But the fact of earlier break-ins didn’t amount to the sort of evidence that can support an abandonment claim, Dillon said.

As for whether Hight should have dismissed the case, Dillon noted that a witness saw Frye leaving the house with the sink and that the police officer who stopped him found it on the back seat of Frye’s car.

Also, there was evidence that Frye entered the house without the owner’s permission, Dillon said.

The panel did side with Frye on one issue, involving a quirk in his sentencing.

Members agreed it’s “improper to punish a person” for stealing and possessing the same property.

Hight apparently agreed, having withheld sentence last year for the possession charge, but his written judgment nonetheless listed it with Frye’s other offenses.

The appeals panel agreed to send that issue back to Superior Court for Hight or another judge “to correct the judgment accordingly.” The conclusion of the opinion termed that a “re-sentencing,” but it was not clear whether the change would affect Frye’s prison term.

Joyner could not be reached Tuesday for comment.

Frye received a seven- to nine-year prison sentence in the case and is now in the state’s Johnston Correctional Institution, near Smithfield. N.C. Department of Correction records indicate he may be released early in 2019.