{ "id": 8523323, "name": "STATE OF NORTH CAROLINA v. FRANK M. BOLTINHOUSE", "name_abbreviation": "State v. Boltinhouse", "decision_date": "1980-12-02", "docket_number": "No. 8012SC523", "first_page": "665", "last_page": "670", "citations": [ { "type": "official", "cite": "49 N.C. App. 665" } ], "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 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "640" } ], "opinion_index": 0 }, { "cite": "290 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561442 ], "year": 1976, "pin_cites": [ { "page": "328" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0313-01" ] }, { "cite": "264 S.E. 2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "46 N.C. App. 118", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549410 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/46/0118-01" ] }, { "cite": "264 S.E. 2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 547", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575616 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0547-01" ] } ], "analysis": { "cardinality": 513, "char_count": 12748, "ocr_confidence": 0.746, "pagerank": { "raw": 2.1680910791266014e-07, "percentile": 0.7707171344738631 }, "sha256": "22947ff8ca204042b73a5bae87fabfb49578a2280008ebca56dd33c3cb70344c", "simhash": "1:093b718e61323972", "word_count": 2125 }, "last_updated": "2023-07-14T18:45:37.060516+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CLARK and WEBB concur." ], "parties": [ "STATE OF NORTH CAROLINA v. FRANK M. BOLTINHOUSE" ], "opinions": [ { "text": "WHICHARD, Judge.\nBy his first assignment of error defendant contends the trial court erred in denying his motion to dismiss the indictment for the State\u2019s failure to afford him a speedy trial in accordance with G.S. 15A-701.\nG.S. 15A-701(al)(3) provides:\nWhen a charge is dismissed, other than under G.S. 15A-703, or a finding of no probable cause pursuant to G.S. 15A-612, and the defendant is afterward charged with the same offense or an offense based on the same act or transaction or on the same series of acts \u00f3r transactions connected together or constituting parts of a single scheme or plan, [his trial shall commence within 120 days from the date that the defendant was arrested, served with criminal process, waived an indictment, or was indicted, whichever occurs last, for the original charge.\nDefendant contends that the 24 May 1979 warrant charged him with receiving and having the same stolen goods which were the subject of his 24 September 1979 indictment for felonious possession; that he was therefore \u201cafterward charged [in the 24 September 1979 indictment] with ... an offense based on the same act or transaction or on the same series of acts or transactions\u201d (as were involved in the 24 May 1979 arrest warrant) within the meaning of that phrase as used in G.S. 15A-701(al)(3); that he was indicted 122 days after the \u201coriginal charge\u201d within the meaning of that phrase as used in G.S. 15A-701(al)(3); and that therefore his motion to dismiss for non-compliance with the statute, by failure to bring him to trial within 120 days of the \u201coriginal charge,\u201d should have been granted.\nThe phrase \u201cor a finding of no probable cause pursuant to G.S. 15A-612\u201d was inserted in G.S. 15A-701(al)(3) by amendment of the 1979 General Assembly. The placement of the amendment within the statute, and the language used, render the statute ambiguous; and it is admittedly subject to the interpretation for which defendant contends. It is equally subject, however, to an interpretation that when a finding of no probable cause is entered pursuant to G.S. 15A-612, the computation of time for the purpose of applying the Speedy Trial Act commences with the last of the listed items (\u201carrested, served with criminal process, waived an indictment, or was indicted\u201d) relating to the new charge rather than the original charge.\nG.S. 15A-612(b) clearly provides that a finding of no probable cause at a probable-cause hearing does not preclude the State from instituting a subsequent prosecution for the same offense. It is well established that\n[statutes dealing with the same subject matter must be construed in pari materia, and harmonized, if possible, to give effect to each. Any irreconcilable ambiguity should be resolved so as to effectuate the true legislative intent.\n12 Strong\u2019s North Carolina Index 3d, Statutes \u00a7 5.4, pp. 69-70, and cases cited. Construing the ambiguity in G.S. 15 A-701(al)(3) in light of the clearly expressed policy in G.S. 15A-612(b) of permitting subsequent prosecution for the same offense when a finding of no probable cause has been entered, we find the construction of G.S. 15A-701(al)(3) for which defendant contends untenable. We do not believe the General Assembly intended by the 1979 amendment to G.S. 15A-701(al)(3) to carve out an exception to the clear intent of G.S. 15A-612(b) to permit subsequent prosecution for the same offense where a finding of no probable cause has been entered; and, as here, that would often be the result if we construed the intent of the phrase \u201cor a finding of no probable cause pursuant to G.S. 15A-612\u201d in G.S. 15A-701(al)(3) as defendant contends we should. On the contrary, we believe the General Assembly must have intended, in amending the statute to include this phrase, to preserve the policy set forth in G.S. 15A-612(b) of permitting prosecution for the same offense after a finding of no probable cause has been entered.\nConstruing the ambiguous language of G.S. 15A-701(al)(3) in light of the clear intent of G.S. 15A-612(b), we find that the period for computation of the time within which trial must be commenced under G.S. 15A-701(al)(3) began to run from the date of defendant\u2019s indictment on the new charge rather than from the date of his arrest on the \u201coriginal charge,\u201d as he contends. The 24 September 1979 indictment of defendant thus constituted the last in the relevant sequence of events, and 24 September 1979 rather than 24 May 1979 (the date of the original arrest warrant) was the date on which the 120 day period prescribed by G.S. 15A-701(al)(3) for commencement of trial began to run. Defendant\u2019s trial commenced 7 January 1980, 105 days later. The state, therefore, complied with the 120 day requirement imposed by the Speedy Trial Act as we interpret it. See State v. Brady, 299 N.C. 547, 264 S.E. 2d 66 (1980); State v. Rice, 46 N.C. App. 118, 264 S.E. 2d 140 (1980). This assignment of error is overruled.\nDefendant asserts in his second assignment of error that his motion for dismissal should have been granted because the State failed to prove that he possessed the stolen items of property \u201cfor a dishonest purpose of resale.\u201d The stolen property for the possession of which defendant was indicted was located by its rightful owners subsequent to its disappearance at a pawn shop which was operated by the defendant. The basis of defendant\u2019s argument is that he was merely an employee of the pawn shop and had no ownership interest. The record contains ample evidence, however, that defendant, rather than the corporation which employed him, possessed the stolen items and that he possessed them for the purpose of resale. Evidence for the State tended to establish defendant\u2019s extensive involvement with a theft ring, in which he often directed the actual perpetrators of the thefts as to which houses they should break and enter. The perpetrators then brought the goods stolen from those houses to defendant\u2019s home, where defendant purchased them for the purpose of resale. This assignment of error is without merit and is overruled.\nDefendant\u2019s third assignment of error is that the trial court erred in not adequately and fairly instructing the jury on \u201cnon-felonious possession of stolen property.\u201d While under the evidence in this case the trial court may not have been required to charge the jury on non-felonious possession, it did so; and we find the instructions entirely adequate. See N.C.P.I.-Criminal 216.46. This assignment of error is overruled.\nBy his fourth assignment of error defendant contends that the trial court erred in sentencing him as a felon, in that the evidence did not establish a value of the stolen goods in excess of $400. The record contains plenary evidence from which the jury could have found that defendant possessed the stolen goods knowing them to have been stolen by a breaking and entering in violation of G.S. 14-54. Such possession is a felony \u201cwithout regard to the value of the property in question.\u201d G.S. 14-72(c). This assignment of error is overruled.\nDefendant by his fifth assignment of error contends that he was prejudiced by the District Attorney\u2019s comments to the jury \u201cthat the case was important, and had wide-ranging implications\u201d and that the jury should \u201cuse their sixth sense\u201d to find the facts. Our Supreme Court has consistently held that counsel must be allowed wide latitude in argument. \u201cWhether counsel abuses this privilege is a matter ordinarily left to the sound discretion of the trial judge, and we will not review the exercise of this discretion unless there be such gross impropriety in the argument as would be likely to influence the verdict of the jury.\u201d State v. Covington, 290 N.C. 313, 328, 226 S.E. 2d 629, 640 (1976).\nThe comments of the District Attorney here regarding the importance of the case were not abusive or inflammatory. They did not suggest conclusions to the jury which were impermissible under the evidence. Further, the trial court found as a fact that on its own motion it had sustained its objection to that argument and instructed the jury to disregard it.\nAs to the comment that the jury should \u201cuse their sixth sense\u201d to find the facts, the trial court instructed the members of the jury that it was their duty to follow the court\u2019s instructions and not to be guided by what the attorneys argued to them. We find no abuse of discretion in the trial court\u2019s having dealt with the comment in this manner.\nFinally, in view of the extensive evidence against the defendant, we do not believe he could have been prejudiced by either of the District Attorney\u2019s comments to which error is assigned. This assignment of error is overruled.\nWe find that defendant had a fair trial free from prejudicial error.\nNo error.\nJudges CLARK and WEBB concur.\nThis provision applied, at the time of defendant\u2019s indictment, to a defendant \u201cwho is arrested, served with criminal process, waives an indictment or is indicted, on or after October 1,1978, and before October 1,1980.\u201d Defendant here was indicted 24 September 1979.", "type": "majority", "author": "WHICHARD, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Special Deputy Attorney General Ann Reed, for the State.", "Downing, David, Vallery, Maxwell and Hudson, by Edward J. David, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FRANK M. BOLTINHOUSE\nNo. 8012SC523\n(Filed 2 December 1980)\n1. Criminal Law \u00a7 91\u2014 Speedy Trial Act \u2014 no probable cause \u2014 new charge \u2014 time of commencement of limitation period\nWhere there was a finding of no probable cause on a charge of feloniously receiving stolen property, the period of time within which trial on a new charge of felonious possession of the same stolen property must commence under G.S. 15A-701(al)(3) began to run from the date of defendant\u2019s indictment on the new charge rather than from the date of his arrest on the original charge.\n2. Receiving Stolen Goods \u00a7 5.1\u2014 felonious possession of stolen goods \u2014 purpose of resale \u2014 sufficient evidence\nThe State\u2019s evidence in a prosecution for felonious possession of stolen property was sufficient for the jury to find that defendant possessed the stolen items \u201cfor a dishonest purpose of resale\u201d where it tended to show that the stolen property was located by its rightful owners at a pawn shop operated by defendant; defendant was extensively involved with a theft ring and often directed the actual perpetrators of the thefts as to which houses they should break and enter; the perpetrators then brought the stolen goods to defendant\u2019s home where defendant purchased them for resale; and defendant, rather than the corporation which employed him at the pawn shop, possessed the stolen items.\n3. Receiving Stolen Goods \u00a7 7\u2014 possession of stolen goods \u2014 theft by breaking and entering \u2014 felony without regard to value\nDefendant\u2019s possession of stolen goods knowing them to have been stolen by a breaking and entering constituted a felony without regard to the value of the stolen property. G.S. 14-72(c).\n4. Criminal Law \u00a7 102.6\u2014 jury argument \u2014 importance and implications of case\nDefendant was not prejudiced by the prosecutor\u2019s argument \u201cthat the case was important and had wide-ranging implications\u201d since the comment was not abusive or inflammatory and did not suggest impermissible conclusions to the jury, and the court on its own motion sustained its objection to the comment and instructed the jury to disregard it.\n5. Criminal Law \u00a7 102.6\u2014 jury argument \u2014 jury\u2019s use of \u201csixth sense\u201d\nDefendant was not prejudiced by the prosecutor\u2019s jury argument that the jury should \u201cuse their sixth sense\u201d to find the facts where the trial court instructed the jury to follow the court\u2019s instructions and not be guided by what the attorneys argued to them.\nAppeal by defendant from Martin, Judge. Judgment entered 9 January 1980 in Superior Court, CUMBERLAND County. Heard in the Court of Appeals 14 October 1980.\nDefendant was arrested pursuant to a warrant issued 24 May-1979 charging that he \u201cdid unlawfully, willfully, and feloniously receive and have . . . the personal property of Elizabeth Jones, having a value of about $11,105.18, knowing and having reasonable grounds to believe the property to have been feloniously stolen, taken and carried away ....\u201d On 5 September 1979 a finding of no probable cause was entered on the charge. On 24 September 1979 defendant was indicted for the felonious possession, in violation of G.S. 14-71.1, of the same stolen property which was the subject of the 24 May 1979 warrant. Defendant\u2019s trial on the charge contained in the 24 September 1979 indictment commenced 7 January 1980. The jury found defendant guilty of felonious possession of stolen property.\nFrom a judgment of imprisonment, defendant appeals.\nOther facts necessary to consideration of the errors assigned will be set forth in the opinion.\nAttorney General Edmisten, by Special Deputy Attorney General Ann Reed, for the State.\nDowning, David, Vallery, Maxwell and Hudson, by Edward J. David, for defendant-appellant." }, "file_name": "0665-01", "first_page_order": 691, "last_page_order": 696 }