{ "id": 8554273, "name": "STATE OF NORTH CAROLINA v. KEITH EDWARD MILLER", "name_abbreviation": "State v. Miller", "decision_date": "1979-07-17", "docket_number": "No. 7924SC353", "first_page": "342", "last_page": "347", "citations": [ { "type": "official", "cite": "42 N.C. App. 342" } ], "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": "252 S.E. 2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "opinion_index": 0 }, { "cite": "40 N.C. App. 72", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548892 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/40/0072-01" ] }, { "cite": "241 S.E. 2d 136", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "35 N.C. App. 163", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547899 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/35/0163-01" ] }, { "cite": "97 S.Ct. 2971", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1977, "opinion_index": 0 }, { "cite": "53 L.Ed. 2d 1091", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1977, "opinion_index": 0 }, { "cite": "433 U.S. 907", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6188288, 6188073, 6188651, 6188470, 6189015, 6187835, 6188829 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/us/433/0907-03", "/us/433/0907-02", "/us/433/0907-05", "/us/433/0907-04", "/us/433/0907-07", "/us/433/0907-01", "/us/433/0907-06" ] }, { "cite": "220 S.E. 2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 514", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570236 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0514-01" ] }, { "cite": "194 S.E. 2d 861", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "17 N.C. App. 577", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556341 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/17/0577-01" ] }, { "cite": "194 S.E. 2d 155", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "282 N.C. 675", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568792, 8568754, 8568900, 8568854 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/282/0675-02", "/nc/282/0675-01", "/nc/282/0675-04", "/nc/282/0675-03" ] }, { "cite": "193 S.E. 2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "16 N.C. App. 683", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554323 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/16/0683-01" ] }, { "cite": "194 S.E. 2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557682 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0071-01" ] } ], "analysis": { "cardinality": 559, "char_count": 11959, "ocr_confidence": 0.82, "pagerank": { "raw": 8.461132223472709e-08, "percentile": 0.48515704969671974 }, "sha256": "351b2466aa0cd93eaacbf0c5e803577319467544e82be29055916dad01362d67", "simhash": "1:89ebd4b2a2cb1d9d", "word_count": 2055 }, "last_updated": "2023-07-14T15:00:09.609845+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CLARK and ERWIN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. KEITH EDWARD MILLER" ], "opinions": [ { "text": "MITCHELL, Judge.\nThe defendant first assigns as error the trial court\u2019s denial of his motion for a continuance. The defendant argues that the return of the indictment only seven days prior to trial did not leave him sufficient time to prepare his defense or to file a motion for discovery. Defendant argues that G.S. 7A-49.3(a) and G.S. 15A-630 were violated by the denial of his motion to continue.\nG.S. 7A-49.3(a) provides in pertinent part: \u201cAt least one week before the beginning of any session of the superior court for the trial of criminal cases, the solicitor shall file with the clerk of superior court a calendar of the cases he intends to call for trial at that session.\u201d\nIn this case, the indictment was returned on 11 December 1978 and the case set for trial during the 18 December criminal session of superior court. The case was heard on 19 December. The calendar for the session was filed on 12 December with the Clerk of Superior Court of Watauga County.\nThe defendant first argues that the 18 December session of court was a continuation of the 11 December session. Therefore, the calendar should have been prepared seven days prior to 11 December. It is clear from the record, however, that the 18 December session was a special session by order of the Chief Justice and this argument is rejected.\nThe defendant next argues that the calendar should have been filed \u201cat least one week before the beginning of the session,\u201d that is, by 11 December. We do not believe that the one day delay constituted prejudicial error to the defendant. He was not tried until 19 December, a full week after the calendar had been filed. The defendant had ample notice of his trial date.\nA warrant for the defendant\u2019s arrest was issued on 23 July 1978. On 14 November 1978, counsel was appointed to represent the defendant. The case was calendared in district court for a probable cause hearing on 5 December 1978, at which time the State announced that it would not proceed with the hearing. The State further announced at that time that it was the State\u2019s intention to seek a bill of indictment on 11 December 1978.\nFor a defendant to be entitled to a new trial because his motion to continue was denied, he must show both that there was error in the denial and that he was prejudiced thereby. State v. Robinson, 283 N.C. 71, 194 S.E. 2d 811 (1973); 4 Strong\u2019s N.C. Index 3d, Criminal Law \u00a7 91.1, p. 443. The defendant in this case has neither alleged nor shown any prejudice in the denial of his motion.\nThe defendant further contends that the provisions of G.S. 15A-630, requiring notice to the defendant upon the return of a true bill of indictment, were violated. A reading of the statute, however, reveals that its provisions are applicable to defendants \u201cunless [they are] then represented by counsel of record.\u201d (Emphasis added) Counsel was appointed for the defendant in this case on 14 November 1978 and the bill of indictment was returned on 11 December 1978. Clearly, defendant was not entitled to the benefits of the notice requirement of G.S. 15A-630, and this argument is therefore without merit.\nThe defendant next assigns as error the trial court\u2019s denial of his motion to quash the indictment. Defendant argues that the indictment is fatally defective because it fails to state a felonious intent to appropriate the goods taken to the defendant\u2019s own use.\nIn the indictment in the present case, it is alleged that the defendant \u201cunlawfully and willfully did feloniously steal, take, and carry away one ladies purse containing approximately $300 in money.\u201d This Court held in State v. Wesson, 16 N.C. App. 683, 193 S.E. 2d 425 (1972), cert. denied, 282 N.C. 675, 194 S.E. 2d 155 (1973), that it is not necessary in a larceny warrant to allege that the defendant intended to convert the property to his own use. Moreover, the word \u201csteal\u201d as used in the warrant encompassed and was synonymous with \u201cfelonious intent.\u201d The language of the indictment in the present case is nearly identical to the language of the warrant in Wesson. This assignment of error is overruled.\nThe defendant next argues that the trial court erred in allowing into evidence the testimony of Officer Baker. The defendant contends that Officer Baker\u2019s description of his efforts to find the defendant in Florida inflamed the jury, led the jury to believe the defendant was guilty, and was irrelevant.\nOfficer Baker was clearly competent to testify about those facts within his personal knowledge. The probative value of the testimony was a question for the jury. 1 Stansbury\u2019s N.C. Evidence \u00a7 8, p. 17 (Brandis rev. 1973). See also State v. McLeod, 17 N.C. App. 577, 194 S.E. 2d 861 (1973). Evidence of the officer\u2019s investigation and the defendant\u2019s subsequent discovery in Florida was certainly relevant. Relevant evidence should not be excluded \u201csimply because it may tend to prejudice the opponent or excite sympathy for the cause of the party who offers it.\u201d 1 Stansbury\u2019s N.C. Evidence \u00a7 80, p. 242 (Brandis rev. 1973). See State v. Branch, 288 N.C. 514, 220 S.E. 2d 495 (1975), cert. denied, 433 U.S. 907, 53 L.Ed. 2d 1091, 97 S.Ct. 2971 (1977). This assignment of error is overruled.\nThe defendant also assigns as error the trial court\u2019s denial of his motion for a directed verdict. A motion for a directed verdict is a challenge to the sufficiency of the evidence to sustain a conviction and as such, it should be treated as a motion to dismiss or a motion for judgment as in case of nonsuit. State v. Livingston, 35 N.C. App. 163, 241 S.E. 2d 136 (1978). In ruling on those motions, the trial court must determine whether a reasonable inference of the defendant\u2019s guilt may be drawn from the evidence. State v. Smith, 40 N.C. App. 72, 252 S.E. 2d 535 (1979). If there is substantial evidence which would support a reasonable inference of the defendant\u2019s guilt, then the trial court must deny such a motion. Id.\nIn the present case, the evidence tends to show that the defendant was working on the engine of the Scotts\u2019 automobile. Mrs. Scott\u2019s purse was on the front seat of that automobile. Mr. and Mrs. Scott left the automobile for a short time and when they returned, both Mrs. Scott\u2019s purse and the defendant were gone. That evidence is sufficient to show that the defendant committed the crime charged and the defendant\u2019s assignment of error is therefore overruled.\nIn the trial below, we find\nNo error.\nJudges CLARK and ERWIN concur.", "type": "majority", "author": "MITCHELL, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General James E. Magner, Jr., for the State.", "Robert H. West for the defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KEITH EDWARD MILLER\nNo. 7924SC353\n(Filed 17 July 1979)\n1. Criminal Law \u00a7 91\u2014 failure of district attorney to file calendar week before session began\nDefendant was not prejudiced by the fact that the district attorney filed the calendar of cases to be tried six days before the beginning of the session of court rather than a full'week before the session began as required by G.S. YA-49.3(a), especially where defendant was not tried until a week after the calendar was filed.\n2. Criminal Law \u00a7 91.5\u2014 motion for continuance \u2014 indictment seven days before trial\nThe trial court properly denied defendant\u2019s motion for continuance made on the ground that the indictment had been returned only seven days prior to the trial where a warrant for defendant\u2019s arrest was issued on 23 July 19Y8; counsel was appointed to represent defendant on 14 November 1978; the State announced on 5 December 1978 that it would not proceed with a probable cause hearing but would seek a bill of indictment on 11 December 1978; the indictment was returned on 11 December; and defendant showed no prejudice in the denial of his motion.\n3. Indictment and Warrant \u00a7 5\u2014 notice of return of indictment\nDefendant was not entitled to notice of the return of a true bill of indictment pursuant to G.S. 15A-630 where he was then represented by counsel.\n4. Larceny \u00a7 4\u2014 indictment \u2014felonious intent\nA larceny indictment alleging that defendant \u201cunlawfully and willfully did feloniously steal, take, and carry away one ladies purse containing approximately $300 in money\u201d was sufficient without alleging a felonious intent to appropriate the goods taken to defendant\u2019s own use; moreover, the word \u201csteal\u201d as used in the indictment encompassed and was synonymous with \u201cfelonious intent.\u201d\n5. Criminal Law \u00a7 46.1\u2014 discovery of defendant in another state\nAn officer\u2019s testimony concerning his efforts to find defendant and the subsequent discovery of defendant in Florida was competent in this larceny case.\n6. Larceny \u00a7 7\u2014 sufficient evidence of larceny\nThe State\u2019s evidence was sufficient for the jury in a prosecution for felonious larceny where it tended to show that the prosecutrix and her husband experienced car trouble; defendant offered to help them repair their car; the prosecutrix\u2019s purse containing over $300 was on the front seat of the car; while defendant was working on the engine of the car, the prosecutrix and her husband left to obtain parts for the car; and when they returned the defendant, the purse and the money were gone.\nAppeal by defendant from Howell, Judge. Judgment entered 21 December 1978 in Superior Court, WATAUGA County. Heard in the Court of Appeals 29 June 1979.\nThe defendant was indicted and tried for felonious larceny. Upon his plea of not guilty, the jury returned a verdict of guilty of felonious larceny. From judgment sentencing him to imprisonment for ten years, the defendant appealed.\nIn pretrial motions, the defendant\u2019s attorney moved for a continuance and moved to quash the indictment, both of which motions were denied.\nThe State\u2019s evidence tended to show that on 22 July 1978, Alma and James Scott, while on a vacation trip, experienced car trouble near Boone and pulled into a service station. The defendant volunteered to assist them in determining the problem with their automobile. The defendant told the Scotts that new automobile parts were needed and Mr. Scott went across the street to an auto parts store to buy a new set of points. The money to buy the points was taken by Mr. Scott from Mrs. Scott\u2019s purse, in the presence of the defendant.\nUpon Mr. Scott\u2019s return with the new points, the defendant told the Scotts that a larger set of points was needed and Mrs. Scott went back to the automobile parts store to exchange the smaller set of points. Mrs. Scott left her purse on the front seat of the car. The purse contained over $300, a J. C. Penney\u2019s credit card, and other personal belongings.\nAfter a considerable delay, Mr. Scott went to the parts store to determine why his wife had not returned. Upon the Scotts\u2019 arrival back to the car several minutes later, they discovered that the defendant was gone and had left his tools at the car. Furthermore, the doors of the automobile were open and Mrs. Scott\u2019s purse was gone.\nMr. Scott remembered that the defendant wore a belt upon which the name \u201cKeith\u201d was inscribed. Mr. Scott asked people at the service station after the defendant had left what the defendant\u2019s full name was.\nOfficer Bill Baker testified over objection that he located the defendant in Florida on 13 November 1978.\nThe defendant offered evidence tending to show that on 22 July 1978 he stopped at a service station to get milk for his infant child. He helped the Scotts with their automobile, told them to go across the street to buy a new set of points and to get a screwdriver, and later told them to exchange the smaller set of points for a larger set. He denied, however, seeing Mrs. Scott\u2019s purse or stealing it. He grew tired of waiting for the Scotts to return from the automobile parts store and left, leaving only an old \u201cpiece of pliers.\u201d The defendant was told by his sister in early August that his name was in the Boone paper for stealing Mrs. Scott\u2019s purse, but the defendant did not call the authorities to straighten the matter out.\nOther relevant facts are hereinafter set forth.\nAttorney General Edmisten, by Assistant Attorney General James E. Magner, Jr., for the State.\nRobert H. West for the defendant appellant." }, "file_name": "0342-01", "first_page_order": 370, "last_page_order": 375 }