{
  "id": 8551096,
  "name": "STATE OF NORTH CAROLINA v. DAVID THOMAS BARTLETT",
  "name_abbreviation": "State v. Bartlett",
  "decision_date": "1980-03-18",
  "docket_number": "No. 7925SC876",
  "first_page": "704",
  "last_page": "706",
  "citations": [
    {
      "type": "official",
      "cite": "45 N.C. App. 704"
    }
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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    {
      "cite": "188 S.E. 2d 634",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1972,
      "opinion_index": 0
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      "cite": "14 N.C. App. 373",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8549577
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      "year": 1972,
      "opinion_index": 0,
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        "/nc-app/14/0373-01"
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    {
      "cite": "235 S.E. 2d 94",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1977,
      "opinion_index": 0
    },
    {
      "cite": "33 N.C. App. 284",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8549311
      ],
      "year": 1977,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/33/0284-01"
      ]
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  "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 Arnold concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. DAVID THOMAS BARTLETT"
    ],
    "opinions": [
      {
        "text": "WEBB, Judge.\nDefendant has brought forward several assignments of error. He first contends that he could not have been convicted of breaking or entering because he entered the house with the permission of the owner. The defendant has cited no cases, and we cannot find a case which is precedent for the peculiar facts of this case. We hold the testimony of Mr. Gienger, that he did not forbid the defendant to come into the house because he was afraid the defendant had a gun or knife, was evidence from which the jury could conclude defendant did not have Mr. Gienger\u2019s permission to enter the hopse.\nDefendant next contends that the in-court identification of defendant was improper because of the impermissive suggestiveness of the show-up identification of the defendant. The show-up identification was conducted when the defendant was brought from his home to the police car to be identified by Mr. Gienger. The defendant objected to the admission of this testimony, and the court conducted a voir dire hearing out of the presence of the jury. The court found as a fact that Mr. Gienger\u2019s in-court identification was based on his observation of the defendant at the house and not the police car. The evidence presented at the voir dire as to Mr. Gienger\u2019s opportunity to observe the defendant at the house supports this finding of fact. See State v. Sanders, 33 N.C. App. 284, 235 S.E. 2d 94 (1977).\nThe defendant\u2019s next two assignments of error deal with what he contends was the admission of hearsay testimony and the admission of the fruits of a search of defendant\u2019s home without a search warrant. The defendant did not object when this evidence was offered. These two assignments of error are overruled.\nThe defendant also assigns error to what he contends was a comment by the judge on the evidence. The judge asked several questions of Mr. Gienger while he was on the witness stand. We hold that these questions were to clarify Mr. Gienger\u2019s testimony and were not expressions of opinion on the evidence.\nThe defendant\u2019s last assignment of error is to the court\u2019s failure to set aside the verdict. He contends this was error because the verdict was inconsistent as the jury found the defendant guilty of felonious breaking or entering and misdemeanor larceny. Jury verdicts are not required to be consistent. State v. Black, 14 N.C. App. 373, 188 S.E. 2d 634 (1972).\nWe concede that on the facts of this case the defendant acted with a certain flair. We also hold he had a fair trial, free of prejudicial error.\nNo error.\nJudges Parker and Arnold concur.",
        "type": "majority",
        "author": "WEBB, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General Thomas H. Davis, Jr., for the State.",
      "Randy D. Duncan for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. DAVID THOMAS BARTLETT\nNo. 7925SC876\n(Filed 18 March 1980)\n1. Burglary and Unlawful Breakings \u00a7 5.8\u2014 breaking into house \u2014 defendant not specifically forbidden entry \u2014sufficiency of evidence\nWhere the evidence tended to show that a homeowner was locked out of his house and was trying to gain entry by using a credit card when defendant approached him and opened the door with an eight inch knife, the homeowner and defendant entered the house, drank alcoholic beverages and removed some items belonging to the homeowner, and both then left the house whereupon the homeowner called the police, testimony by the homeowner that he did not forbid defendant to come into the house because he was afraid defendant had a gun or knife was evidence from which the jury could conclude defendant did not have the owner\u2019s permission to enter the house.\n2. Criminal Law \u00a7 66.11\u2014 in-court identification not tainted by show-up\nAn in-court identification of defendant by the victim of a breaking and entering was based on the victim\u2019s observation at the time of the crime and not on a show-up conducted when defendant was brought from his home to a police car to be identified by the victim.\n3. Criminal Law \u00a7 124.5\u2014 inconsistent verdict\nThe trial court did not err in failing to set aside the jury\u2019s verdict finding defendant guilty of felonious breaking or entering and misdemeanor larceny on the ground that it was inconsistent, since jury verdicts are not required to be consistent.\nAPPEAL by defendant from Wood, Judge. Judgment entered 11 July 1979 in Superior Court, CATAWBA County. Heard in the Court of Appeals 7 February 1980.\nDefendant was indicted for felonious breaking or entering and felonious larceny. The State\u2019s evidence showed that early on the morning of 20 February 1979, Otto Gienger arrived at his home in Newton. He did not have his key and was attempting to open his door with a credit card when defendant approached him from the side of his house. Defendant asked Mr. Gienger if he was trying to enter the house; when Mr. Gienger answered in the affirmative, the defendant said \u201cWell, I\u2019m going in this house all the time,\u201d and proceeded to open the door with an eight-inch knife. The defendant then related to Mr. Gienger the articles he had taken from the house on previous occasions. Mr. Gienger had missed these items from his home. Mr. Gienger said he did not tell the defendant not to come in his house \u201cbecause I was afraid. He could have had one of my guns or a knife.\u201d\nOnce inside the house, defendant proceeded to take various items of personal property and divide them with Mr. Gienger. He took some beer from the refrigerator and both defendant and Mr. Gienger drank a part of it. There was a bottle of Scotch whiskey in the house. The defendant gave Mr. Gienger a drink from this bottle and after Mr. Gienger said he did not \u201clike that stuff,\u201d the defendant took the remainder of the bottle for himself. Both men then left the house, and Mr. Gienger excused himself and called the police. Later that day, the defendant was arrested at his home. He was escorted outside his home to a police vehicle where Mr. Gienger identified him.\nDefendant was convicted of felonious breaking or entering and misdemeanor larceny. He has appealed.\nAttorney General Edmisten, by Assistant Attorney General Thomas H. Davis, Jr., for the State.\nRandy D. Duncan for defendant appellant."
  },
  "file_name": "0704-01",
  "first_page_order": 732,
  "last_page_order": 734
}