{
  "id": 2643777,
  "name": "STATE OF NORTH CAROLINA v. JAMES MARTIN JORGENSON",
  "name_abbreviation": "State v. Jorgenson",
  "decision_date": "1981-04-07",
  "docket_number": "No. 8027SC684",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Hedrick and Clark concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JAMES MARTIN JORGENSON"
    ],
    "opinions": [
      {
        "text": "WHICHARD, Judge.\nDefendant first assigns error to the trial court\u2019s refusal to permit circulation among the jurors of Defendant\u2019s Exhibit No. I, a warrant for arrest of the State\u2019s witness Marlene H. Thomas for felonious possession of the property allegedly stolen by defendant. Prior to introduction of the warrant into evidence, a law enforcement officer had testified that he and another officer went to the witness Thomas\u2019 apartment with a warrant for her arrest for possession of stolen goods. Further, the witness Thomas had testified: \u201cThe case against me for possession of stolen goods was dismissed. I agreed to testify.\u201d The facts which the jurors could have divined from viewing the warrant thus were already before them. Under these circumstances to allow the jury to view the warrant would have the same effect as would the admission of evidence which is merely cumulative or repetitious. The exclusion of such evidence repeatedly has been held to be non-prejudicial. See State v. Tyson, 242 N.C. 574, 89 S.E. 2d 138 (1955). This assignment of error is overruled.\nDefendant next assigns error to the admission of testimony regarding telephone conversations between defendant and the witness Thomas \u201cwithout first requiring the State to lay the proper foundation.\u201d The essense of defendant\u2019s contention is that he was never identified as the caller. It is true that \u201c \u2018[before a witness may relate what he heard during a telephone conversation with another person, the identity of the person with whom the witness was speaking must be established.\u2019 \u201d State v. Richards, 294 N.C. 474, 480, 242 S.E. 2d 844, 849 (1978), quoting from State v. Williams, 288 N.C. 680, 698, 220 S.E. 2d 558, 571 (1975). However, \u201c[t]he broad statement that the conversation of a person at the other end is never admissible until he is identified cannot be sustained by authority. ... It is only necessary that identity of the person be shown directly or by circumstances somewhere in the development of the case ....\u201d State v. Strickland, 229 N.C. 201, 208, 49 S.E. 2d 469, 474 (1948) (emphasis supplied).\nHere, the testimony complained of was elicited, not by questions relating to telephone conversations the witness Thomas had with defendant, but by a question relating to conversations in general. The witness was asked: \u201cSince you have signed the statement to the police, how many conversations have you had with ... the defendant?\u201d After the court overruled defendant\u2019s objection the witness responded: \u201cI had several conversations with him, threatening phone calls for one.\u201d She further testified, also over objection: \u201cHe asked if I had turned him in and I told him I did not want to talk about it, or talk to him, and I hung up.\u201d The witness previously had testified that she had known the defendant for five or six years. She also had testified that she had conversed with defendant as recently as when he brought the stolen television set to her apartment. We find these circumstances sufficient to permit an inference that the witness recognized defendant\u2019s voice when he called on the telephone subsequent to bringing the television set to the witness\u2019 apartment. This assignment of error, therefore, is overruled.\nDefendant also assigns error to the court\u2019s failure to declare a mistrial on account of the witness\u2019 non-responsive statement that she had received threatening phone calls from defendant and to its failure adequately to instruct the jury with reference to disregarding the statement. \u201cA motion for mistrial in a case less than capital is addressed to the trial judge\u2019s sound discretion and his ruling thereon is not reviewable without a showing of gross abuse.\u201d State v. Yancey, 291 N.C. 656, 664, 231 S.E. 2d 637, 642 (1977). The court here granted defendant\u2019s motion to strike the witness\u2019 statement. It also instructed the jury, not once but twice, \u201cdo not consider that.\u201d We find no \u201cshowing of gross abuse\u201d in this method of exercising the trial court\u2019s discretion. We also find the court\u2019s twice-given instruction to the jury to \u201cnot consider that\u201d to be adequate; and \u201c[i]t is presumed that the jury heeded the court\u2019s instruction and that any prejudicial effect of the testimony was removed.\u201d State v. Davis, 10 N.C. App. 712, 713, 179 S.E. 2d 826, 828 review denied 278 N.C. 522, 180 S.E. 2d 610 (1971). Finally, we find defendant\u2019s contention that the instruction was not sufficiently precise to inform the jury as to what it was to disregard to be without merit. These assignments of error are overruled.\nDefendant next assigns error to the court\u2019s instructions to the jury regardingthe charge of felonious larceny. We note that the record contains only those portions of the charge to which defendant excepts and assigns error. Defendant thus has failed to comply with North Carolina Rules of Appellate Procedure, Rule 9(b)(3), which provides, in pertinent part, as follows: \u201cThe record on appeal in criminal actions shall contain: ... (vi) where error is assigned to the giving or omissions of instructions to the jury, a transcript of the entire charge given ....\u201d Further, we note that the instructions complained of were actually favorable to defendant in that they placed a greater burden on the State than the law required. The court instructed the jury that for it to find the defendant guilty of felonious larceny, the State had to prove beyond a reasonable doubt that defendant took and carried away all the items of personal property described in the indictment. Because the larceny here was committed pursuant to a breaking and entering in violation of G.S. 14-54, the taking and carrying away of any one of the items described would have sufficed to sustain a conviction of felonious larceny, without regard to the value of the property taken. G.S. 14-72(b)(2). The instruction thus placed a greater burden on the State than it was required to sustain, and it can scarcely have been prejudicial to the defendant. This assignment of error is overruled.\nDefendant finally assigns error to the denial of his motion to set aside the verdicts as being contrary to the greater weight of the evidence. In State v. Shepherd, 288 N.C. 346, 353, 218 S.E. 2d 176, 180-181 (1975), our Supreme Court stated, per Justice Copeland:\nUnder this motion the trial court is \u201c[V]ested with discretionary authority to set aside a verdict and order a new trial whenever in his opinion the verdict is contrary to the greater weight of the credible testimony.\u201d ... The decision of the court involves the exercise of its discretion. This is a question of law and not reviewable.\nThis assignment of error is overruled.\nWe find that defendant had a fair trial free from prejudicial error.\nNo error.\nJudges Hedrick and Clark concur.",
        "type": "majority",
        "author": "WHICHARD, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General Jo Anne Sanford, for the State.",
      "Kellum Morris, Assistant Public Defender, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JAMES MARTIN JORGENSON\nNo. 8027SC684\n(Filed 7 April 1981)\n1. Criminal Law \u00a7 169.3- exclusion of evidence - error cured by introduction of other evidence\nIn this prosecution for breaking and entering and larceny, defendant was not prejudiced by the exclusion of a warrant for arrest of the State\u2019s witness for felonious possession of the property allegedly stolen by defendant where an officer had testified that he went to the witness\u2019s apartment with a warrant for her arrest for possession of stolen goods, the witness testified that the case against her for possession of stolen goods had been dismissed, and the facts which the jurors could have divined from viewing the warrant thus were already before them.\n2. Criminal Law \u00a7 69- telephone conversation - identity of defendant as caller\nThe evidence was sufficient to permit an inference that a witness recognized defendant\u2019s voice when he called her on the telephone subsequent to bringing a stolen television set to her apartment, and the witness was properly permitted to testify as to the telephone conversations with defendant, where the witness testified that she had known defendant for five or six years and that she had conversed with defendant as recently as when he brought the stolen television set to her apartment.\n3. Criminal Law \u00a7 128.2- threatening telephone calls - non-responsive statement - instruction to jury - denial of mistrial\nThe trial court did not err in failing to declare a mistrial because of a witness\u2019s non-responsive statement that she had received threatening telephone calls from defendant where the trial court granted defendant\u2019s motion to strike the statement and twice instructed the jury to \u201cnot consider that.\u201d\n4. Larceny \u00a7 8.3- erroneous instructions favorable to defendant\nThe trial court\u2019s erroneous instruction that, for the jury to find defendant guilty of felonious larceny, the State had to prove beyond a reasonable doubt that defendant took and carried away all the items of personal property described in the indictment placed a greater burden on the State than it was required to sustain and was therefore not prejudicial to defendant where the larceny was committed pursuant to a breaking and entering, since the taking and carrying away of any one of the items would have sufficed to sustain a conviction of felonious larceny without regard to the value of the property taken. G.S. 14-72(b)(2).\nAppeal by defendant from Kirby, Judge. Judgment entered 22 February 1980 in Superior Court, Gaston County. Heard in the Court of Appeals 2 December 1980.\nDefendant was charged in a proper bill of indictment with the felonious breaking and entering of a river cabin occupied by Robah L. Robinson with intent to commit the felony of larceny, and with larceny therefrom of several items of the personal property of Robah L. Robinson having a value in excess of $200.00. The evidence for the State tended to show that defendant and Jan Lane went to Robinson\u2019s river cabin sometime after 6:00 p.m. on 27 August 1979. Defendant broke the lock on the gate and pried open the bolt on the cabin door. Defendant and Lane then took and carried away numerous items of personal property which belonged to Robinson. They left the items at defendant\u2019s apartment, with the exception of a television set, which they took to an apartment occupied by Lane and Marlene H. Thomas. Law enforcement officers, in response to a phone call from an informant, subsequently purchased the television set from Thomas.\nThe jury found defendant guilty of felonious breaking or entering and felonious larceny. From a judgment of imprisonment, defendant appeals.\nAttorney General Edmisten, by Assistant Attorney General Jo Anne Sanford, for the State.\nKellum Morris, Assistant Public Defender, for defendant appellant."
  },
  "file_name": "0425-01",
  "first_page_order": 453,
  "last_page_order": 457
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