The opinion
Judge Walker
concurring in part and dissenting in part.
I concur with the majority’s opinion that defendant knowingly, voluntarily and understandingly waived her rights under Miranda and N.C. Gen. Stat. § 7A-595(a).
*732 However, I respectfully dissent from the majority opinion that the trial court erred by failing to instruct the jury on the lesser-included offense of misdemeanor possession of stolen goods.
A trial court is not required to instruct on lesser-included offenses of a crime “when the State’s evidence is positive as to each and every element of the crime charged and there is no conflicting evidence relating to any element of the charged crime.” State v. McKinnon, 306 N.C. 288, 301 , 293 S.E.2d 118, 126 (1982) (citations omitted). If a defendant presents evidence which clearly contradicts the State’s evidence and gives rise to a reasonable inference to dispute the State’s contentions, then an instruction on a lesser-included offense may be appropriate. Id. at 301 , 293 S.E.2d at 127 .
The majority notes that at trial the evidence tended to show that sometime during the period between June and August of 1995, the defendant came into possession of approximately $14,804.00 belonging to her grandparents. The defendant confessed that she and her boyfriend stole various amounts of money from different locations in her grandparents house and they used this money to buy crack cocaine. Further, defendant’s grandmother testified that the least amount of money in any one hiding place was $700.00, and the most was between $1,000.00 and $2,000.00. Relying on this Court’s ruling in State v. Watson, 80 N.C. App. 103 , 341 S.E.2d 366 (1986), the majority then concludes that the State’s evidence failed to clearly establish when, at any one point in time during June and August of 1995, the defendant was ever in possession of more than $1,000.00.
I feel, however, that this conclusion too narrowly construes N.C. Gen. Stat. § 14-71.1 and that the facts of this case are clearly distinguishable from those of State v. Watson, supra. In that case, the State’s evidence failed to establish when the goods were stolen or even that they were stolen from the same place. Id. at 10, 341 S.E.2d at 369 . Here, the State’s evidence clearly established that the defendant possessed stolen property, in excess of $1,000.00, taken from her grandparents’ home between June and August of 1995.
The felonious possession of stolen property, as defined in N.C. Gen. Stat. § 14-71.1 , is a “continuing offense beginning at the time of receipt and continuing until divestment.” State v. Davis, 302 N.C. 370, 374 , 275 S.E.2d 491, 494 (1981). Under the majority’s reasoning, defendant could engage in a series of transactions whereby she would come into possession of stolen property on a daily basis but so long as she divested herself of enough of that property to stay *733 below the threshold $1,000.00 amount, she could not be convicted of a felony.
Based on the evidence presented at trial, I conclude the State has met its burden of presenting evidence “positive as to each and every element of the crime charged” and that the defendant has failed to present evidence sufficient to raise a “reasonable inference” to dispute the State’s theory of the case. Therefore, I respectfully dissent from the majority’s holding that the trial court erred by not instructing the jury on the lesser-included offense of misdemeanor possession of stolen property.