{ "id": 8556605, "name": "STATE OF NORTH CAROLINA v. RICARDO O'NEAL and FRANK O'NEAL", "name_abbreviation": "State v. O'Neal", "decision_date": "1973-03-28", "docket_number": "No. 7318SC110", "first_page": "644", "last_page": "649", "citations": [ { "type": "official", "cite": "17 N.C. App. 644" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "159 S.E. 2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574583 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0102-01" ] }, { "cite": "180 S.E. 2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561152 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0561-01" ] }, { "cite": "190 S.E. 2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 727", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576444 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0727-01" ] } ], "analysis": { "cardinality": 531, "char_count": 12676, "ocr_confidence": 0.465, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7531093511629442 }, "sha256": "5a6cedeb5106753d7cef675d931b1969812e0add1efff03ee0da75703675ce7a", "simhash": "1:2aa3804d3704a0fe", "word_count": 2125 }, "last_updated": "2023-07-14T17:26:57.402584+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Vaughn concur." ], "parties": [ "STATE OF NORTH CAROLINA v. RICARDO O\u2019NEAL and FRANK O\u2019NEAL" ], "opinions": [ { "text": "MORRIS, Judge.\nDefendants assign as error the failure of the trial court to grant their motion for judgment of nonsuit. This assignment of error presents the question whether there is substantial evidence, when viewed in the light most favorable to the State, of each essential element of the crime charged, and whether there is substantial evidence that the defendants are the perpetrators of the crime charged. State v. Hoffman, 281 N.C. 727, 190 S.E. 2d 842 (1972); State v. Vestal, 278 N.C. 561, 180 S.E. 2d 755 (1971).\nThe record in this case contains substantial evidence that defendants, acting with Bernice Miller and Wanda Atwater, took and carried away clothing of the value of more than $200 from each of Sears, Roebuck and Company and Paul H. Rose, Incorporated, without the consent of either owner and with the intent permanently to deprive the owners thereof. This assignment of error is overruled.\nBy defendants\u2019 only other assignment they contend that the court erred in failing to grant their motion to suppress evidence with respect to items found in the trunk of the automobile owned by Frank O\u2019Neal. Upon defendants\u2019 objection, the court conducted a voir dire hearing. Two witnesses for the State and defendant Frank O\u2019Neal testified on voir dire. The court made the following findings of fact:\n\u201c1. After being stopped by officers, the defendants were directed to go to the police station in Greensboro.\n2. The defendant, Frank O\u2019Neal, advised the officers that the Ltd Ford automobile in question was his.\n3. Mr. Frank O\u2019Neal stated to Officer Zimmerman, of the Greensboro Police Department, that he had no objection to a search of his automobile, but further advised him that he didn\u2019t have a key.\n4. This conversation took place at the police station and constituted a consent by the defendant, Frank O\u2019Neal, that his automobile should be searched.\n5. A search warrant was obtained and served upon the defendant prior to the time that the Ltd automobile was searched.\n6. The search warrant appears in the record, together with the affidavit supporting the search warrant, as State\u2019s Exhibits 16 and 17.\n7. Said search warrant and affidavit were valid and sufficient in law to authorize a search of the automobile, that is the 1970 Ltd Ford owned by the defendant, Frank O\u2019Neal.\n8. That pursuant to said search warrant, a search was made of the trunk of the 1970 Ltd Ford automobile, and the items identified as State\u2019s Exhibits through 12, inclusive, by the State were found in the trunk, as well as other items which have been testified by the State.\u201d\nAnd the following conclusions of law:\n\u201c1. The search of the trunk of the Ltd Ford automobile owned by Frank O\u2019Neal was by and with the consent of the owner and was, therefore, for that reason lawful.\n2. That it is further lawful for the reason that a valid search warrant had been obtained and served on the defendant, Frank O\u2019Neal, prior to the time that a search was made of the trunk of the Ltd Ford Automobile owned by the defendant, Frank O\u2019Neal.\n3. The items found in the trunk of the automobile pursuant to the search are admissible in evidence in this case.\u201d\nThe court heard the evidence on voir dire of both the State and defendants. In the light of the evidence and its observation of the demeanor of the witnesses, the court resolved the question in favor of the State. The findings of fact, if supported by competent evidence in the record, are conclusive and no reviewing court may set them aside or modify them. State v. Pike, 273 N.C. 102, 159 S.E. 2d 334 (1968). Here the facts found were supported by competent evidence in the record and supported the conclusions of law. The evidence was properly admitted.\nNo error.\nJudges Hedrick and Vaughn concur.", "type": "majority", "author": "MORRIS, Judge." } ], "attorneys": [ "Attorney General Morgan, by Assistant Attorney General Icenhour, for the State.", "Lee, High, Taylor and Dansby, by Herman L. Taylor, and Samuel S. Mitchell, for defendant appellants." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RICARDO O\u2019NEAL and FRANK O\u2019NEAL\nNo. 7318SC110\n(Filed 28 March 1973)\n1. Larceny \u00a7 7 \u2014 felonious larceny of clothing \u2014 sufficiency of evidence\nDefendants\u2019 motion for nonsuit in a felonious larceny case was properly denied where there was substantial evidence that defendants, acting with two women, took and carried away clothing of the value of more than $200 from each of Sears, Roebuck and Company and Paul H. Rose, Incorporated, without the consent of either owner and with the intent permanently to deprive the owners thereof.\n2. Criminal Law \u00a7 84; Searches and Seizures \u00a7 2 \u2014 consent to search \u2014 valid search warrant \u2014 admissibility of evidence\nThe trial court did not err in failing to grant defendants\u2019 motion to suppress evidence with respect to items found in the trunk of defendant Frank O\u2019Neal\u2019s automobile where the evidence on voir dire supported the judge\u2019s findings of fact and conclusions that the search was made by and with the consent of the owner and that a valid search warrant was obtained and served on defendant before the search was made.\nAppeal by defendants from Rouse, Judge, 17 July 1972 Session of Superior Court held in Guilford County.\nDefendant Ricardo O\u2019Neal was tried upon two separate bills of indictment, proper in form, charging him with the felonious larceny of goods of the value of more than $200 belonging to Sears, Roebuck and Company, a corporation (case number 71CR77713), and with the felonious larceny of goods of the value of more than $200 belonging to Paul H. Rose, Incorporated, a corporation (case number 71CR77714). Defendant Frank O\u2019Neal was tried upon two separate bills of indictment, proper in form, charging him with the felonious larceny of goods of the value of more than $200 belonging to Sears, Roebuck and Company, a corporation (case number 71CR77715), and with the felonious larceny of goods of the value of more than $200 belonging to Paul H. Rose, Incorporated, a corporation (case number 71CR77716). The defendants pleaded not guilty, and the cases were consolidated for trial without objection.\nThe evidence for the State tended to show the following: Witness Wanda Atwater testified that \u201c [b] ack in November and October, 1971, I had a drug habit.\u201d On 28 November 1971, she and Bernice Miller, Ricardo O'Neal and Frank O\u2019Neal got together in Winston-Salem, North Carolina, and drove to Greensboro, North Carolina, for the purpose of shoplifting goods, for which she was to receive from Frank O\u2019Neal one-third of the retail value of the goods stolen. The two defendants and Mrs. Miller and Miss Atwater drove to the downtown Sears, Roebuck and Company store in Greensboro. Miss Atwater and defendant Ricardo O\u2019Neal entered the store and picked out a man\u2019s suit, placed it under Miss Atwater\u2019s dress, and removed the suit from the store without paying for it. Thereafter, Miss Atwater placed a man\u2019s suede coat under her dress, and she and Ricardo O\u2019Neal removed the suede coat from the store without paying for it.\nBernice Malloy Miller testified for the State that \u201c[i]n October and November, 1971, I had a drug habit.\u201d On 28 November 1971, Bernice Miller, Wanda Atwater, and Ricardo O\u2019Neal traveled with Frank O\u2019Neal in his car to Greensboro for the purpose of shoplifting. At the Sears, Roebuck and Company store, Mrs. Miller and Frank O\u2019Neal looked at men\u2019s suits, and while there they removed two suits and a pair of pants from hangers and placed them in Mrs. Miller\u2019s pocketbook without paying for them. Mrs. Miller carried the first suit out to the car and placed it in a pillowcase on the front seat of the car, and then returned to the store and removed the pants and second suit to the car, placing them in the same pillowcase. Both couples then drove to the Paul Rose Store in Greensboro. Sometime after 1:30 p.m. on 28 November 1971, Mr. Joe Decker, the general manager of the Paul Rose Store, located in the Friendly Shopping Center, observed the defendants, accompanied by the two women, Bernice Miller and Wanda Atwater, enter the Paul Rose Store. Upon entering the store, Bernice Miller and Frank O\u2019Neal went in one direction and Wanda Atwater and Ricardo O\u2019Neal went in another direction. The defendants and their companions remained in the Paul Rose Store approximately 35 to 45 minutes. Bernice Miller testified that while she was in the store, she and Frank O\u2019Neal picked out two men\u2019s suits and a woman\u2019s three piece suit, which Mrs. Miller identified as State\u2019s Exhibit Number 1, placed the suits in her pocketbook without paying for them, and took them out of the Paul Rose Store to Frank O\u2019Neal\u2019s car. While at the car, Mrs. Miller observed a man standing at the door of Paul Rose Store looking at her, whereupon she threw the woman\u2019s suit, State\u2019s Exhibit Number 1, underneath an adjoining car. Mr. Joe Decker testified that after he observed Bernice Miller throw State\u2019s Exhibit Number 1 underneath a nearby car, he saw the defendants and their female companions climb into a Ford \u201cLTD\u201d automobile and drive away. Decker noted the license number of their car and telephoned the Greensboro Police Department for assistance. Decker further testified that State\u2019s exhibits numbered 1 through 5, consisting of various pieces of clothing, were the property of Paul H. Rose, Incorporated, and had a retail value of between $800 and $900. On cross-examination, Decker testified that for the purpose of keeping records of their inventory, the Paul Rose Store attached labels to all their garments, and that it was customary at the time of sale for part of the tag to be torn off and kept by store personnel. However, Decker admitted that \u201c ... it is human error sometimes for my cashiers not to tear the ticket off when it\u2019s sold. ... I never at any time saw these two defendants with those suits in their personal possession in and around the store. ... I have no way of knowing how these garments got out of the Paul Rose Store. ...\u201d\nMr. Barry Marshall, the manager of the men\u2019s suit department at the Sears, Roebuck and Company store in Greensboro testified that he was familiar with the inventory and accounting method used by the Sears store in November, 1971, and that State\u2019s exhibits numbered 6 through 12 were various articles of clothing offered for sale by Sears, Roebuck and Company, having an aggregate retail value of some $380. On cross-examination, however, Mr. Marshall testified that he could not identify State\u2019s exhibits numbered 6 through 12 as having come from the men\u2019s department of the Sears, Roebuck and Company store in Greensboro.\nThe State\u2019s evidence further tended to show that Sergeant R. D. Pegram of the Greensboro Police Department was following Frank O\u2019Neal\u2019s Ford automobile in a police car when Sergeant Pegram received a radio transmission describing the O\u2019Neal vehicle; that Sergeant Pegram stopped the O\u2019Neal vehicle, and that shortly thereafter Detective J. D. Zimmerman arrived at the scene; that Zimmerman informed Frank O\u2019Neal of his constitutional rights, but that O\u2019Neal made no statement at that time; that while Zimmerman was talking with O\u2019Neal, Bernice Miller came up to Zimmerman and said \u201cthat she took the item,\u201d that \u201cit was in a pillowcase up in the car,\u201d and that \u201cshe went up and pulled out a pink pillowcase full of various garments and brought them to me\u201d; that the defendants and the two women were asked to go to the police station with the officers; that a search warrant was procured to search Frank O\u2019Neal\u2019s vehicle; that as a result of that search, State\u2019s exhibits numbered 6 through 12 were recovered from the trunk of Frank O\u2019Neal\u2019s Ford car; and that State\u2019s exhibits numbered 1 through 5 were the same articles of clothing as were found in the pink pillowcase voluntarily given to Detective Zimmerman by Bernice Miller after the O\u2019Neal car had been stopped.\nDefendants offered no evidence. After the close of the State\u2019s evidence, the defendants moved for judgments as of nonsuit. The motion was denied. The jury returned verdicts of guilty of felonious larceny on both indictments against each defendant. Cases numbered 71CR77713 and 71CR77714 were consolidated for judgment and defendant Ricardo O\u2019Neal was sentenced to three years in the custody of the Commissioner of Correction as a \u201ccommitted youthful offender,\u201d G.S. 148-49.1, et seq. In case number 71CR77715, judgment was rendered that defendant Frank O\u2019Neal be imprisoned for two to three years in the State Department of Correction, and in case number 71CR77716 judgment was rendered that defendant Frank O\u2019Neal be imprisoned for two to three years in the State Department of Correction, this sentence to run consecutively with the sentence in case number 71CR77715. Defendants appealed, assigning error.\nAttorney General Morgan, by Assistant Attorney General Icenhour, for the State.\nLee, High, Taylor and Dansby, by Herman L. Taylor, and Samuel S. Mitchell, for defendant appellants." }, "file_name": "0644-01", "first_page_order": 668, "last_page_order": 673 }