{ "id": 8551102, "name": "STATE OF NORTH CAROLINA v. WILLIAM BOONE", "name_abbreviation": "State v. Boone", "decision_date": "1978-12-19", "docket_number": "No. 781SC709", "first_page": "218", "last_page": "223", "citations": [ { "type": "official", "cite": "39 N.C. App. 218" } ], "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": "226 S.E. 2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "30 N.C. App. 123", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552472 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/30/0123-01" ] }, { "cite": "127 S.E. 2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "257 N.C. 661", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569960 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/257/0661-01" ] }, { "cite": "175 S.E. 2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "9 N.C. App. 46", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547852 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/9/0046-01" ] }, { "cite": "65 S.E. 2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "329" } ], "opinion_index": 0 }, { "cite": "233 N.C. 683", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615889 ], "year": 1951, "pin_cites": [ { "page": "689-90" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0683-01" ] }, { "cite": "199 S.E. 2d 423", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559866 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0041-01" ] }, { "cite": "163 S.E. 2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "2 N.C. App. 305", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552812 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc-app/2/0305-01" ] }, { "cite": "73 S.E. 162", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1911, "pin_cites": [ { "page": "164" } ], "opinion_index": 0 }, { "cite": "157 N.C. 624", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659506 ], "weight": 2, "year": 1911, "pin_cites": [ { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/nc/157/0624-01" ] } ], "analysis": { "cardinality": 593, "char_count": 12327, "ocr_confidence": 0.804, "pagerank": { "raw": 3.9361397326454284e-07, "percentile": 0.9032310377940953 }, "sha256": "482c4ab696959ec4176313386d0ff4d1fc7c34b235e92030a9dcb801e25d58d7", "simhash": "1:9d6841ab0828fcf5", "word_count": 2106 }, "last_updated": "2023-07-14T17:57:00.834910+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Vaughn and Arnold concur." ], "parties": [ "STATE OF NORTH CAROLINA v. WILLIAM BOONE" ], "opinions": [ { "text": "HEDRICK, Judge.\nDefendant first assigns as error the failure of the trial judge to grant his motion for judgment as of nonsuit with respect to the charge of felonious entry. Defendant contends that a person cannot be convicted of felonious entry into a store or place of business during normal business hours through a door open to the public because there has not been an unauthorized or unpermit-ted entry. We agree.\nAlthough the precise issue presented by this assignment of error has never been addressed by the North Carolina courts, we think the case of State v. Goffney, 157 N.C. 624, 73 S.E. 162 (1911), supports the proposition that the entry proscribed by the statute contemplates an unauthorized or unpermitted entry, and thus an entry with the consent of the owner is not an unlawful entry under G.S. \u00a7 14-54.\nThe provisions of G.S. \u00a7 14-54 are as follows:\n' (a) Any person who breaks or enters any building with intent to commit any felony or larceny therein is guilty of a felony and is punishable under G.S. 14-2.\n(b) Any person who wrongfully breaks or enters any building is guilty of a misdemeanor and is punishable under G.S. 14-3(a).\n(c) As used in this section, \u201cbuilding\u201d shall be construed to include any dwelling, dwelling house, uninhabited house, building under construction, building within the curtilage of a dwelling house, and any other structure designed to house or secure within it any activity or property.\nIn State v. Goffney, supra, the defendant was charged under Revisal, \u00a7 3333 (1908), the statutory predecessor to G.S. \u00a7 14-54. The evidence in Goffney tended to show that the owner of the store had directed an employee to induce the defendant to enter the store to steal some goods. Once the defendant was inside the store, he was arrested. The court held:\nIn the case at bar the owner himself gave permission for the defendant to enter, which destroyed the criminal feature and made the entry a lawful one.\nUpon the facts in evidence no crime was committed, because the entry was with the consent and at the instance of the owner of the property.\nState v. Goffney, 157 N.C. at 628, 73 S.E. at 164.\nWe hold that there is no evidence in this record to warrant submission of the case to the jury on the charge of violating G.S. \u00a7 14-54.\nDefendant next contends the trial court erred in allowing Jane Riddle, the sales clerk present in the store on the night the items were taken, to express her opinion as to the \u201cfair market value\u201d of the stolen merchandise.\nThe general rule in North Carolina is that a witness who has knowledge of value gained from experience, information and observation may give his opinion of the value of specific personal property. \u201c[I]t is not necessary that the witness be an expert; it is enough that he is familiar with the thing upon which he professes to put a value and has such knowledge and experience as to enable him intelligently to place a value on it.\u201d 1 Stansbury\u2019s N.C. Evidence \u00a7 128, at 408 (Brandis rev. 1973); State v. Gotten, 2 N.C. App. 305, 163 S.E. 2d 100 (1968).\nIn the present case, the witness testified that she was very familiar with the sweaters, was interested in several of them herself, and was familiar with the price of the sweaters because she had sold them since she began working at the store. She was permitted to testify as to the retail prices of the sweaters and that the \u201cfair market value\u201d of all seven was \u201cabout $250 to $300 or more.\u201d We think an adequate foundation was laid to place into evidence her opinion as to the value of the sweaters. This assignment of error has no merit.\nBy assignment of error number three, defendant contends that the court erred in sustaining the State\u2019s objection to a question asked on cross-examination and subsequently permitting the court reporter to give the answer to the jury. Jane Riddle, after testifying as to her opinion of the fair market value of the sweaters on direct, was asked about the markup of the sweaters on cross-examination, as follows:\nQ. Isn\u2019t it a fact that a sweater that you say was worth $50 actually costs $25, in other words being a hundred percent markup? OBJECTION. SUSTAINED. You need not answer that.\nAfter the State had presented all of its evidence the trial judge allowed the court reporter to read to the jury from the record the answer the witness would have given had she been allowed to respond: \u201cYes.\u201d\nDefendant contends that this procedure prohibited the jury from judging the credibility of the witness by her demeanor while answering the question. We fail to see how the defendant could possibly have been prejudiced since the answer was a one-word response and was in fact favorable to the defendant. This assignment of error has no merit.\nBy assignments of error numbers four and five, defendant contends the trial court erred in allowing L. B. Dickens, the police officer who searched defendant\u2019s vehicle, to testify that a cardboard box found in the trunk was a \u201cbooster box\u201d that was \u201cgenerally used by professional shoplifters\u201d and in allowing the box to be subsequently introduced into evidence. Defendant argues that any evidence concerning the \u201cbooster box\u201d is irrelevant and its admission prejudicial.\nThe general rule in North Carolina is that evidence tending to show that the defendant has committed separate offenses is not admissible if \u201cits only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged; but if it tends to prove any other relevant fact it will not be excluded merely because it also shows him to have been guilty of an independent crime.\u201d 1 Stansbury\u2019s N.C. Evidence \u00a7 91, at 289-90 (Brandis rev. 1973). Evidence is relevant if it has any logical tendency to prove a fact at issue in a particular case, and in a criminal case every circumstance calculated to throw light upon the purported crime is admissible. State v. Arnold, 284 N.C. 41, 199 S.E. 2d 423 (1973).\nIn the present case, there was no evidence tending to show that the \u201cbooster box\u201d was used in the commission of the crimes defendant was charged with. Nevertheless, we fail to see how the officer\u2019s testimony with regard to the \u201cbooster box\u201d or its admission could have prejudiced the defendant in light of the overwhelming evidence of the defendant\u2019s participation in the crime. The \u201cbooster box\u201d was a relatively insignificant part of the State\u2019s case and defendant was not injured in light of the other evidence of his guilt. These assignments of error have no merit.\nDefendant finally contends that the trial court erred in refusing to permit defendant\u2019s counsel to argue to the jury concerning defendant\u2019s failure to testify. The rule in North Carolina is that neither the counsel for the State nor counsel for the defendant is allowed to comment on the failure of the defendant to testify. \u201cTo permit counsel for a defendant to comment upon or offer explanation of the defendant\u2019s failure to testify would open the door for the prosecution and create a situation the statute [G.S. \u00a7 8-54] was intended to prevent.\u201d State v. Bovender, 233 N.C. 683, 689-90, 65 S.E. 2d 323, 329 (1951); State v. Artis, 9 N.C. App. 46, 175 S.E. 2d 301 (1970). In his charge to the jury, the trial judge properly instructed the jury that defendant had a right to elect not to testify, and that no unfavorable inference could be drawn therefrom. This assignment of error has no merit.\nBecause of our disposition of this case, it is unnecessary to discuss defendant\u2019s remaining assignment of error.\nWith respect to the charge of felonious larceny of goods with a value in excess of $200, the defendant had a fair trial free from prejudicial error.\nDefendant was found guilty of separate offenses of felonious entry with intent to commit larceny and felonious larceny. A single judgment of imprisonment was rendered on the verdict. Since we hold that judgment as of nonsuit should have been granted only as to the charge of felonious entry, the single judgment must be vacated and remanded for a proper judgment upon the guilty verdict in the charge of felonious larceny. State v. Hardison, 257 N.C. 661, 127 S.E. 2d 244 (1962); State v. Wingo, 30 N.C. App. 123, 226 S.E. 2d 221 (1976).\nVacated and remanded for proper judgment on the charge of felonious larceny.\nJudges Vaughn and Arnold concur.", "type": "majority", "author": "HEDRICK, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Amos C. Dawson III, for the State.", "Twiford, Trimpi & Thompson, by Russell E. Twiford and John G. Trimpi, for the defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM BOONE\nNo. 781SC709\n(Filed 19 December 1978)\n1. Burglary and Unlawful Breakings \u00a7 1.2\u2014 entry into store during business hours \u2014 no breaking\nA person cannot be convicted of felonious entry into a store or place of business during normal business hours through a door open to the public because there has not been an unauthorized or unpermitted entry under G.S. 14-54.\n2. Larceny \u00a7 6.1\u2014 value of stolen merchandise \u2014 opinion evidence admissible\nIn a prosecution for felonious larceny of sweaters from a retail store, the trial court did not err in allowing the sales clerk present in the store on the night the items were taken to express her opinion as to the fair market value of the stolen merchandise, since the witness testified that she was very familiar with the sweaters, was interested in several of them herself, and was familiar with the price of the sweaters because she had sold them since she began working at the store.\n3. Criminal Law \u00a7 88.1\u2014 objection to question sustained \u2014answer read by reporter \u2014no error\nDefendant\u2019s contention that the trial court erred in sustaining the State\u2019s objection to a question asked on cross-examination and subsequently permitting the court reporter to give the answer to the jury because this procedure prohibited the jury from judging the credibility of the witness by her demeanor while answering the question is without merit since the answer was a one-word response and was in fact favorable to defendant.\n4. Criminal Law \u00a7 34.2\u2014 booster box \u2014 use by professional shoplifters \u2014 evidence not prejudicial\nIn a prosecution for larceny, testimony that a box found in the trunk of defendant\u2019s vehicle was a \u201cbooster box . . . generally used by professional shoplifters\u201d was a relatively insignificant part of the State\u2019s case, and defendant was not injured in light of the other evidence of his guilt.\n5. Criminal Law \u00a7 102.8\u2014 defendant\u2019s failure to testify \u2014 comment not permitted\nThe trial court did not err in refusing to permit defendant\u2019s counsel to argue to the jury concerning defendant\u2019s failure to testify. G.S. 8-54.\nAPPEAL by defendant from Fountain, Judge. Judgment entered 23 March 1978 in Superior Court, Dare County. Heard in the Court of Appeals on 15 November 1978.\nDefendant was charged in a proper bill of indictment with one count of felonious entry with intent to commit larceny and one count of felonious larceny. Upon his plea of not guilty, the State presented evidence tending to show the following:\nOn the evening of 18 November 1977, Indian Imports, a retail store engaged in selling imported clothing, was open for business to the public. At approximately 7:15 p.m. defendant walked into the store and asked Jane Riddle, the sales clerk, for directions to Elizabeth City. The defendant then left the store but returned shortly thereafter with two women and a man. The defendant walked up to the door but did not go inside. The other three persons with the defendant went inside and walked around where some sweaters and dresses were located. About five minutes later, they left without making a purchase. After they left, the sales clerk noticed that two $50 sweaters were missing and immediately called the police in Nags Head. An automobile operated by the defendant with three other persons was stopped by the police. Defendant consented to a search of the car and the police found seven sweaters in the back seat and a cardboard \u201cbooster box\u201d in the trunk. The sweaters were identified as belonging to the store. The sales clerk testified that in her opinion the sweaters had a fair market value of $250 to $300.\nThe defendant presented no evidence.\nDefendant was found guilty as charged. From a judgment entered on the verdict imposing a sentence of eight to ten years, defendant appealed.\nAttorney General Edmisten, by Assistant Attorney General Amos C. Dawson III, for the State.\nTwiford, Trimpi & Thompson, by Russell E. Twiford and John G. Trimpi, for the defendant appellant." }, "file_name": "0218-01", "first_page_order": 246, "last_page_order": 251 }