{ "id": 8549119, "name": "STATE OF NORTH CAROLINA v. TOMMY ALLEN", "name_abbreviation": "State v. Allen", "decision_date": "1980-03-04", "docket_number": "No. 7910SC748", "first_page": "417", "last_page": "424", "citations": [ { "type": "official", "cite": "45 N.C. App. 417" } ], "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": "242 S.E. 2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 722", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574365 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0722-01" ] }, { "cite": "180 S.E. 2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 682", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561403 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0682-01" ] }, { "cite": "185 S.E. 2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572031 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0366-01" ] }, { "cite": "260 S.E. 2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "43 N.C. App. 695", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554252 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/43/0695-01" ] }, { "cite": "190 S.E. 2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 625", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576001, 8576043, 8576012, 8576027, 8576060 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0625-01", "/nc/281/0625-04", "/nc/281/0625-02", "/nc/281/0625-03", "/nc/281/0625-05" ] }, { "cite": "187 S.E. 2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "14 N.C. App. 120", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547118 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/14/0120-01" ] }, { "cite": "235 S.E. 2d 63", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572354, 8572325, 8572301, 8572245, 8572277 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0643-05", "/nc/292/0643-04", "/nc/292/0643-03", "/nc/292/0643-01", "/nc/292/0643-02" ] }, { "cite": "232 S.E. 2d 475", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "32 N.C. App. 408", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550945 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/32/0408-01" ] } ], "analysis": { "cardinality": 667, "char_count": 16244, "ocr_confidence": 0.83, "pagerank": { "raw": 1.1501663400698578e-07, "percentile": 0.5812120706651237 }, "sha256": "65683ba071570dbe8c066d3213f5261083d3a2913f3333db5b8651dc3b6ccad6", "simhash": "1:3a54342c4e548d5e", "word_count": 2778 }, "last_updated": "2023-07-14T22:44:38.339487+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges PARKER and WEBB concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TOMMY ALLEN" ], "opinions": [ { "text": "ARNOLD, Judge.\nThe major issue on this appeal is whether the evidence that defendant knew the television sets were stolen at the time he received them was sufficient to go to the jury. If it was, defendant\u2019s motion to dismiss was properly denied. Considering the evidence in the light most favorable to the State, as we are required to do, State v. Jones, 32 N.C. App. 408, 232 S.E. 2d 475, cert. denied and app. dism. 292 N.C. 643, 235 S.E. 2d 63 (1977), we find the following: In May or June 1977, defendant purchased from James Williams two color TVs and two stereos, still in their sealed boxes and stamped \u201cBrown-Rogers-Dixson.\u201d He paid $250 or $275 each for the TVs and $150 each for the stereos. Later he purchased another console color TV from Williams for $300. An additional TV and stereo were delivered to his business for purchase by Jimmy Britt. On 3 November 1977, defendant told the SBI that he knew the items purchased from Williams were stolen.\nDefendant argues that this statement of 3 November is the only evidence that defendant knew the items were stolen, and that it is not probative because Bobby Davis had visited defendant on 15 September 1977 and told him that they were stolen. Defendant argues that the fact he knew on 3 November, having been told by Davis on 15 September, does not mean he knew at the time he purchased the items.\nThe State presented further evidence, however. On 3 February 1978 defendant told the SBI that \u201cbefore Labor Day 1977\u201d he had told an FBI agent \u201cthat Britt had the stolen TV and stolen stereo.\u201d Davis\u2019 visit with defendant was after Labor Day. And while defendant is not charged with receiving the items allegedly purchased by Britt, they were acquired from Williams under circumstances identical to the two transactions for which he was charged. If defendant knew in the summer of 1977 that the items Britt purchased were stolen, there is a reasonable inference that he knew the ones he purchased were stolen as well. Further, defendant told the SBI on 3 February that when Andy Creech bought a TV and stereo from him on 15 June, Creech knew they were stolen. Defendant does not attempt to explain how Creech could have known this if defendant did not know.\nOther evidence supports an inference of defendant\u2019s knowledge. Defendant told the SBI that there was no question in his mind that Britt knew the sets were stolen, because of the good prices Britt got. Defendant got the same low prices on the items he purchased. Defendant purported to believe that the prices were low because the sets had been damaged and repaired, yet they arrived in sealed boxes. When defendant checked a serial number with the FBI and got no information that the set was stolen, he nevertheless told the agent that \u201cif any of this stuff is stolen, it has got to be an inside job.\u201d\nDefendant argues that to withstand his motion the State is required to show that he had absolute knowledge that the sets were stolen. In defendant\u2019s view, any reasonable grounds he had to believe that the items were stolen are insufficient, and he cannot be charged with knowledge until 15 September when he \u201cknew for certain,\u201d having been told by Davis that the sets were in fact stolen. G.S. 14-71, as amended in 1975, provides that a person shall be guilty of receiving stolen goods if he receives them \u201cknowing or having reasonable grounds to believe\u201d that they are stolen. Furthermore, guilty knowledge may be inferred from the circumstances. State v. Hart, 14 N.C. App. 120, 187 S.E. 2d 351, cert. denied, 281 N.C. 625, 190 S.E. 2d 469 (1972). In spite of defendant\u2019s argument to the contrary, we find that sufficient evidence was presented to take the case to the jury. There was no error in the denial of defendant\u2019s motion.\nDefendant next argues that he was denied his right to a speedy trial because he was not brought to trial within 120 days of his indictment. His reliance upon the Speedy Trial Act, O.S. 15A-701 et seq., is misplaced, however. The Act is Sec. 1 of Chapter 787 of the 1977 Session Laws, and Sec. 2 of that chapter says plainly: \u201cThis act shall apply to any person who is arrested . . . or is notified . . . that an indictment has been filed . . . against him, on or after October 1, 1978.\u201d As defendant was indicted on 30 May and arrested on 31 May 1978, the Act is clearly inapplicable to his case. Accord, State v. McLawhorn, 43 N.C. App. 695, 260 S.E. 2d 138 (1979). Defendant concedes that he did not petition for a speedy trial, as was provided for by G.S. 15A-702 & -703 prior to the enactment of the Speedy Trial Act. We find no merit in this assignment of error.\nNo prejudicial error appears in the court\u2019s allowing testimony that there were three thefts from Brown-Rogers-Dix-son. While it is true that defendant was charged with only two counts of receiving, defendant himself testified that James Williams made three deliveries to defendant\u2019s place of business. And we fail to see how defendant would be prejudiced by evidence that a third party committed a theft in which defendant did not take part.\nWe agree with defendant that the court erred in allowing SBI Agent Shaw to give his opinion of the value of the TV sets, since no foundation had been laid for this opinion testimony. However, we do not find that this error was prejudicial. In fact, defendant has not argued any prejudice to his case by the admission of this testimony. Nor do we find prejudice in the admission of State\u2019s Exhibits 11 and 12 for the purpose of illustrating testimony. Defendant argues that the \u201cbest evidence rule\u201d was violated because the State could have produced the sets in question, but we note that the best evidence rule applies to writings introduced into evidence to prove their contents. 2 Stansbury\u2019s N.C. Evidence \u00a7 190 (Brandis Rev. 1973).\nOn cross-examination, defendant was asked, \u201cMr. Allen, during the last six months, isn\u2019t it a fact, that you have conspired with other people to break into the house of Reginald Shirley and steal some guns?\u201d Defendant\u2019s objection to this question was overruled, and he assigns error to this ruling. He cites no authority for his position, arguing simply that the question was \u201cunfair.\u201d It is the law in North Carolina that for the purpose of impeachment a witness may be asked whether he has committed specific criminal acts. State v. Gainey, 280 N.C. 366, 185 S.E. 2d 874 (1972). The question was properly allowed.\nOn rebuttal, the State called William Tait\u00f3n, and defendant objects to the admission of his testimony since Talton\u2019s name was not on the list of potential witnesses for the State given to defendant before voir dire of the jury. Defendant raised this objection at trial, and the court inquired whether any of the jurors was acquainted with the witness. None responded that he was. Defendant now contends that he was prejudiced because Talton\u2019s testimony conflicted with defendant\u2019s on a particular point, and, not knowing that Tait\u00f3n would be called, he was not prepared with witnesses who could corroborate defendant\u2019s testimony on that point. Defendant did not object on this ground at trial, however, or ask for a recess in which to secure witnesses to counteract Talton\u2019s testimony. We find no prejudicial error here.\nDefendant assigns error to the court\u2019s statement in the charge to the jury of the essential elements of receiving stolen goods, arguing not that the instructions given were incorrect, but that the court should have elaborated upon the \u201cskeleton\u201d charge that he gave. Defendant submitted no requested instructions to the trial court, however, and we find that the instructions given were sufficient. See State v. Boyd, 278 N.C. 682, 180 S.E. 2d 794 (1971).\nAlthough defendant is correct that Willie Cooley, the Brown-Rogers-Dixson employee who was involved in the thefts, was not an accomplice to the crime of receiving stolen property, we find no prejudice to defendant from the court\u2019s charge on this point, directed as it was to the fact that the jury should examine Cooley\u2019s testimony with extreme care. The error could only have worked to defendant\u2019s benefit. See State v. Saults, 294 N.C. 722, 242 S.E. 2d 801 (1978).\nThe defendant received a fair trial, free from prejudicial error.\nNo error.\nJudges PARKER and WEBB concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Special Deputy Attorney General Charles J. Murray, for the State.", "Gerald L. Bass for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TOMMY ALLEN\nNo. 7910SC748\n(Filed 4 March 1980)\n1. Receiving Stolen Goods \u00a7 5.1\u2014 receiving stolen televisions \u2014 defendant\u2019s knowledge that goods stolen \u2014 sufficiency of evidence\nEvidence that defendant knew television sets were stolen at the time he received them was sufficient to be submitted to the jury where it tended to show that defendant purchased from an individual two color televisions and two stereos still in their sealed boxes, stamped with the name of a firm from which such equipment had been stolen; defendant paid about half as much as the equipment was worth; on two subsequent occasions defendant made other similar purchases; and five or six months after the purchases in question, defendant told an SBI agent that he knew the items he had purchased were stolen.\n2. Receiving Stolen Goods \u00a7 1\u2014 absolute knowledge that goods stolen not required\nThere was no merit to defendant\u2019s contention that the State was required to show that he had absolute knowledge that television sets which he received were stolen, since the statute under which defendant was charged provided that a person would be guilty of receiving stolen goods if he received them \u201cknowing or having reasonable grounds to believe\u201d that they were stolen. G.S. 14-71.\n3. Constitutional Law \u00a7 50\u2014 Speedy Trial Act inapplicable\nThe Speedy Trial Act, which applied to defendants arrested or indicted after 1 October 1978, was inapplicable to defendant\u2019s case since he was indicted on 30 May and arrested on 31 May 1978.\n4. Receiving Stolen Goods \u00a7 4; Criminal Law \u00a7 81 \u2014 televisions stolen \u2014 evidence of value not prejudicial \u2014 best evidence rule inapplicable\nIn a prosecution for receiving stolen property, defendant was not prejudiced by the trial court\u2019s error in allowing an SBI agent to give his opinion of the value of the stolen goods allegedly received; furthermore, the \u201cbest evidence rule\u201d did not require that the State introduce the stolen goods into evidence, since that rule applied to writings introduced into evidence to prove their contents.\n5. Criminal Law \u00a7 86.5\u2014 specific act of defendant \u2014question proper for impeachment\nDefendant who was accused of receiving stolen property could properly be asked for impeachment purposes if he had conspired to break into a named house to steal guns.\n6. Criminal Law \u00a7 87\u2014 witness\u2019s name not on list \u2014 defendant not prejudiced by testimony\nDefendant was not prejudiced where the trial court permitted a witness, whose name was not on the list of potential witnesses for the State given to defendant before voir dire of the jury, to testify, since the court inquired whether any of the jurors were acquainted with the witness; none responded that they were; and defendant did not ask for a recess to secure witnesses to counteract the surprise witness\u2019s testimony.\nAPPEAL by defendant from Lee, Judge. Judgment entered 29 March 1979 in Superior Court, WAKE County. Heard in the Court of Appeals 15 January 1980.\nDefendant was charged in each of two indictments with receiving a Philco color console television set knowing it was stolen. The acts allegedly occurred on 30 May and 15 June 1977.\nThe State presented evidence that in May and June 1977 an employee of Brown-Rogers-Dixson, together with one James Williams, stole some stereos and TVs from the firm. Williams and a companion delivered the appliances to a car lot in Smithfield.\nBobby Davis, security supervisor for GTE Sylvania in Smithfield, went to see defendant about some TVs and stereos on 15 September 1977. On 3 November 1977 defendant was questioned by Reginald Shaw of the SBI, and he told Shaw that in May 1977 he had learned he could purchase a color TV set from James Williams. A few days later Williams arrived in a pick-up truck and delivered two TVs and two stereos, still in their boxes, marked \u201cPhilco\u201d and stamped \u201cBrown-Rogers-Dixson.\u201d He paid Williams $250 or $275 for each TV and $150 for each stereo. He kept one TV and one stereo and sold the others to Andy Creech. He later sold the TV he had kept to James Cole, who subsequently testified that he had purchased it for his friend Cecil Kelly.\nApproximately two weeks later, Williams delivered to defendant another Philco console color TV, for which he paid $300. Two or three weeks later Williams delivered to defendant\u2019s place of business another stereo and TV set, which were purchased by Jimmy Britt. Defendant volunteered to Shaw that \u201che knew he was wrong and guessed that he would just have to pay a heavy fine.\u201d He and Jimmy Britt \u201cknew the items . . . purchased from Williams were stolen. Further, he knew it was wrong to buy the stolen items . ...\u201d In a second interview on 17 November 1977 defendant told Shaw that there was \u201cno question in his mind that Britt knew the stuff was stolen because he got a $1,000 TV set and a stereo for $525.\u201d Shaw took the serial numbers from the TVs in defendant\u2019s and Cecil Kelly\u2019s residences, and these were the bases of the two indictments.\nShaw questioned defendant again on 3 February 1978. At that time defendant told him that before Labor Day 1977 defendant had told an FBI agent \u201cthat Britt had the stolen TV and stolen stereo.\u201d Defendant also told Shaw that on the night Andy Creech bought his TV and stereo, 15 June 1977, Creech knew they were stolen.\nDefendant testified that when he talked to Williams about purchasing a TV set, he assumed that Williams worked for Brown-Rogers-Dixson. It was explained to him that the sets he bought had been damaged in shipment and repaired, and the employees had a chance to buy them at cost. The sets he received were in sealed boxes. On the Friday after he got the first set, 4 June, defendant contacted Agent Mulholland of the FBI, to whom he had given information in the past, and they discussed the TV set. He gave Mulholland the serial number to check, and it didn\u2019t show up stolen. Defendant then told Mulholland that \u201cif any of this stuff is stolen, it has got to be an inside operation. Somebody is covering it up maybe in the shipping department or in the office one.\u201d At the times defendant took the sets, he did not know they were stolen.\nOn Wednesday after Labor Day, Bobby Davis came to see defendant. Defendant had not had \u201cany knowledge or any proof that the TV\u2019s were stolen,\u201d but Davis told him that they were. Defendant did not tell Shaw that defendant and Britt knew the items were stolen when they purchased them, or that Britt must have known they were stolen because of the price he paid. He did not tell Shaw that Andy Creech knew the stereo and TV he bought were stolen.\nAgent Mulholland of the FBI testified that defendant contacted him in May or June 1977 and told him \u201cthat he had received some information that some individuals were selling some TV\u2019s in the Johnston County area and that there was some indication that possibly these items could be stolen.\u201d Mulholland checked the serial number defendant gave him and received no information that that item had been stolen. In September, Mulholland contacted Bobby Davis and suggested he get defendant\u2019s cooperation in working on the matter of the TV sets. For several years defendant had been assisting the FBI, giving them information which enabled them to recover \u201ca substantial amount of things.\u201d\nOn rebuttal, Agent Richardson of the SBI stated he was present when defendant made the statement that there was no question in his mind that Britt knew the stuff was stolen, since he had gotten a thousand dollars worth of equipment for $525. Bobby Davis, recalled, testified that defendant had told him that Britt knew the items were stolen when he bought them.\nDefendant was found guilty on both counts of felonious receiving of stolen goods. He was sentenced to one year in Case #78CRS31630, and five years, suspended on condition, in Case #78CRS31632. Defendant appeals.\nAttorney General Edmisten, by Special Deputy Attorney General Charles J. Murray, for the State.\nGerald L. Bass for defendant appellant." }, "file_name": "0417-01", "first_page_order": 445, "last_page_order": 452 }