{ "id": 12169974, "name": "STATE OF NORTH CAROLINA v. ULYSEES PERRY", "name_abbreviation": "State v. Perry", "decision_date": "1981-05-19", "docket_number": "No. 808SC1038", "first_page": "48", "last_page": "59", "citations": [ { "type": "official", "cite": "52 N.C. App. 48" } ], "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": "277 S.E. 2d 857", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "52 N.C. App. 26", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169957 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/52/0026-01" ] }, { "cite": "445 U.S. 684", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1777764 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/us/445/0684-01" ] }, { "cite": "447 U.S. 410", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6185347 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/us/447/0410-01" ] }, { "cite": "383 N.E. 2d 416", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "444 U.S. 825", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11316257, 11316325, 11316006, 11316390, 11316462, 11316157, 11316087, 11316626, 11316211, 11315798, 11316535, 11315864, 11315933 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/444/0825-08", "/us/444/0825-09", "/us/444/0825-04", "/us/444/0825-10", "/us/444/0825-11", "/us/444/0825-06", "/us/444/0825-05", "/us/444/0825-13", "/us/444/0825-07", "/us/444/0825-01", "/us/444/0825-12", "/us/444/0825-02", "/us/444/0825-03" ] }, { "cite": "588 F. 2d 986", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 832169 ], "pin_cites": [ { "page": "1001" } ], "opinion_index": 0, "case_paths": [ "/f2d/588/0986-01" ] }, { "cite": "433 U.S. 682", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181519 ], "weight": 4, "year": 1977, "pin_cites": [ { "page": "682-683" } ], "opinion_index": 0, "case_paths": [ "/us/433/0682-01" ] }, { "cite": "432 U.S. 161", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177649 ], "weight": 5, "year": 1977, "pin_cites": [ { "page": "168", "parenthetical": "emphasis in original" }, { "page": "195", "parenthetical": "emphasis in original" }, { "page": "2226", "parenthetical": "emphasis in original" }, { "page": "164" }, { "page": "169-170" } ], "opinion_index": 0, "case_paths": [ "/us/432/0161-01" ] }, { "cite": "108 S.E. 2d 426", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "250 N.C. 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622412 ], "year": 1959, "pin_cites": [ { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/nc/250/0272-01" ] }, { "cite": "420 U.S. 770", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11644635 ], "weight": 3, "year": 1975, "pin_cites": [ { "page": "627" }, { "page": "1294" } ], "opinion_index": 0, "case_paths": [ "/us/420/0770-01" ] }, { "cite": "284 U.S. 299", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5719289 ], "weight": 3, "year": 1932, "pin_cites": [ { "page": "304" }, { "page": "309" }, { "page": "182" } ], "opinion_index": 0, "case_paths": [ "/us/284/0299-01" ] }, { "cite": "108 Mass. 433", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2106004 ], "opinion_index": 0, "case_paths": [ "/mass/108/0433-01" ] }, { "cite": "220 U.S. 338", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3658442 ], "weight": 3, "pin_cites": [ { "page": "342" }, { "page": "490" } ], "opinion_index": 0, "case_paths": [ "/us/220/0338-01" ] }, { "cite": "395 U.S. 784", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771730 ], "weight": 4, "year": 1969, "pin_cites": [ { "page": "796" } ], "opinion_index": 0, "case_paths": [ "/us/395/0784-01" ] }, { "cite": "395 U.S. 711", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1772134 ], "weight": 6, "year": 1969, "pin_cites": [ { "page": "717" }, { "page": "665" }, { "page": "2076" } ], "opinion_index": 0, "case_paths": [ "/us/395/0711-01" ] }, { "cite": "67 L.Ed. 2d 275", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6185443 ], "weight": 4, "year": 1981, "pin_cites": [ { "page": "284" }, { "page": "1144-1145" } ], "opinion_index": 0, "case_paths": [ "/us/450/0333-01" ] }, { "cite": "301 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 547892 ], "weight": 3, "year": 1936, "opinion_index": 0, "case_paths": [ "/us/301/0001-01" ] }, { "cite": "223 S.E. 2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 456", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570660 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0456-01" ] }, { "cite": "249 S.E. 2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1978, "pin_cites": [ { "page": "833" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 246", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551427 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "248" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0246-01" ] }, { "cite": "212 S.E. 2d 113", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "119" } ], "opinion_index": 0 }, { "cite": "286 N.C. 422", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568737 ], "year": 1975, "pin_cites": [ { "page": "430" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0422-01" ] }, { "cite": "275 S.E. 2d 857", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "51 N.C. App. 108", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2643487 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/51/0108-01" ] }, { "cite": "241 S.E. 2d 708", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "709" } ], "opinion_index": 0 }, { "cite": "35 N.C. App. 574", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550764 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "575" } ], "opinion_index": 0, "case_paths": [ "/nc-app/35/0574-01" ] }, { "cite": "221 S.E. 2d 913", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "916" } ], "opinion_index": 0 }, { "cite": "28 N.C. App. 521", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550750 ], "year": 1976, "pin_cites": [ { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/nc-app/28/0521-01" ] }, { "cite": "173 S.E. 2d 527", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "8 N.C. App. 53", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548874 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/8/0053-01" ] }, { "cite": "209 S.E. 2d 501", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "502" } ], "opinion_index": 0 }, { "cite": "23 N.C. App. 694", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553713 ], "year": 1974, "pin_cites": [ { "page": "695-696" } ], "opinion_index": 0, "case_paths": [ "/nc-app/23/0694-01" ] }, { "cite": "189 S.E. 2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "483" } ], "opinion_index": 0 }, { "cite": "281 N.C. 592", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575699 ], "year": 1972, "pin_cites": [ { "page": "596" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0592-01" ] }, { "cite": "241 S.E. 2d 667", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "674" } ], "opinion_index": 0 }, { "cite": "294 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573284 ], "year": 1978, "pin_cites": [ { "page": "417-418" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0407-01" ] }, { "cite": "277 S.E. 2d 857", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 1 }, { "cite": "52 N.C. App. 26", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169957 ], "year": 1981, "opinion_index": 1, "case_paths": [ "/nc-app/52/0026-01" ] } ], "analysis": { "cardinality": 1083, "char_count": 27508, "ocr_confidence": 0.858, "pagerank": { "raw": 1.5205158138470003e-07, "percentile": 0.6692181667734296 }, "sha256": "6996b72817668c1fc2d1aef5cf189e35668fff37a7ca28e1c2563b2c67aba468", "simhash": "1:8af4fd5e23ac47c3", "word_count": 4618 }, "last_updated": "2023-07-14T23:00:28.379499+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MORRIS concurs.", "Judge Martin (Robert M.) dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. ULYSEES PERRY" ], "opinions": [ { "text": "WHICHARD, Judge.\nDefendant\u2019s first assignment of error relates to the denial of his motion for a mistrial. During cross-examination the witness Woodrow Williams testified, without objection: \u201cAs to whether anybody has ever threatened me with prosecution in this case, I have been threatened today. As to whether anybody ever threatened to bring charges against me for receiving stolen property, no they have not.\u201d The district attorney subsequently asked Williams on redirect: \u201cMr. Williams, you stated on cross examination you had been threatened?\u201d The witness answered: \u201cI have.\u201d Defense counsel\u2019s objection was then sustained. No motion to strike the answer was made, however. A voir dire hearing was conducted during which Williams stated that a woman in the courtroom had told him, about half an hour earlier, \u201cYou are going to die tonight.\u201d The woman was identified by Williams and was taken into custody. Defense counsel denied any involvement by the defendant and moved for a mistrial. The motion was denied. The trial court offered to instruct the jury to disregard any question (presumably including defendant\u2019s own questions on cross-examination) relative to whether the witness had been threatened in any way. The court stated: \u201cI will give you the option of requesting instructions as to whether or not they should disregard those questions and any testimony relative to it.\u201d The defendant declined to request any instructions, however.\nDefendant now argues that a mistrial should have been allowed, because the events at trial \u201cinevitably caused the jury to conclude that the defendant was somehow responsible for an attempt to intimidate or tamper with a witness.\u201d We disagree. \u201cA mistrial is appropriate only for serious improprieties which render impossible a fair and impartial verdict under law.\u201d State v. Chapman, 294 N.C. 407, 417-418, 241 S.E. 2d 667, 674 (1978). \u201c[A] motion for mistrial in cases less than capital is addressed to the trial judge\u2019s sound discretion, and his ruling thereon (without findings of fact) is not reviewable without a showing of gross abuse of discretion.\u201d State v. Daye, 281 N.C. 592, 596, 189 S.E. 2d 481, 483 (1972). In this case there was no indication before the jury of any impropriety on defendant\u2019s part. The same or similar testimony had already been admitted on cross-examination pursuant to questions by defendant\u2019s own counsel. Further, defendant declined the opportunity to request any instructions he desired regarding the matter; and it is thus difficult for him to show any prejudice deriving therefrom. Defendant\u2019s first assignment of error is overruled.\nDefendant next contends the evidence was insufficient to convict as a matter of law. He argues that the State failed to show that the heaters were taken without permission since it presented only one of the three trustees who constituted the ruling body of the church and were in charge of church property. The testimony of trustee Mildred Carlton was, however, sufficient evidence to permit the jury to find that the heaters were taken without consent. The State\u2019s failure to call the other trustees went to the weight, not the sufficiency, of the evidence. Defendant also argues that although the State\u2019s evidence tended to show that the church would normally have been used for services on 18 May 1980, following sale of the heaters to Williams on 16 May 1980, there was nonetheless no evidence of a break-in at the church until 19 May 1980. He contends that the evidence thus tended to show that the heaters were not taken pursuant to a breaking and entering. Since defendant was acquitted of breaking or entering and since the felonious larceny verdict must be vacated as hereinafter discussed, however, the absence of evidence that the break-in occurred prior to 19 May 1980 cannot have prejudiced defendant.\nDefendant has brought forward three assignments of error dealing with the court\u2019s instructions to the jury. First, he excepts to the following instruction:\nNow, under our system of justice when a defendant pleads not guilty he is not required to prove his innocence. The defendant is presumed to be innocent. This presumption goes with him throughout the trial and until the state proves to you that the defendant is guilty beyond a reasonable doubt.\nDefendant argues that the court erred by failing to instruct that the presumption of innocence remains with a defendant \u201cuntil that moment that the twelve agree on the verdict of guilty and for not one moment less.\u201d \u201c[T]he court did clearly instruct the jury that defendant was presumed to be innocent and that the burden was on the State to prove him guilty beyond a reasonable doubt.\u201d State v. Geer, 23 N.C. App. 694, 695-696, 209 S.E. 2d 501, 502 (1974). If defendant desired elaboration, he should have requested it. State v. Tipton, 8 N.C. App. 53, 173 S.E. 2d 527 (1970). Second, defendant excepts to the court\u2019s statement of his contentions. \u201cA misstatement of the contentions of the parties must be brought to the court\u2019s attention in apt time to afford opportunity for correction in order for an exception thereto to be considered on appeal, unless the misstatement was so gross that no objection at the trial was necessary.\u201d State v. Lankford, 28 N.C. App. 521, 526, 221 S.E. 2d 913, 916 (1976). Defendant did not object below to the statement of his contentions, and we find no \u201cgross\u201d misstatement of his contentions in the instructions given. Third, defendant excepts to that portion of the instructions in which the court admonished the jury that all of the evidence was important, and that the jury should remember and consider all of the evidence. He contends the court failed to explain that \u201cthe lack of evidence . . . can be just as important as the existence of evidence.\u201d The court had instructed, however, that the State must prove defendant guilty beyond a reasonable doubt and that a reasonable doubt could arise \u201cout of the evidence or the lack of evidence or some deficiency in it. \u201d (Emphasis supplied.) In view of this instruction, we find no error prejudicial to defendant in the court\u2019s failure to refer further to the lack of evidence in the portion of the instructions complained of.\nDefendant correctly contends the felonious larceny conviction is inconsistent with the acquittal as to breaking or entering.\nOur courts have repeatedly held that where a defendant is tried for breaking or entering and felonious larceny and the jury returns a verdict of not guilty of felonious breaking or entering and guilty of felonious larceny, it is improper for the trial judge to accept the verdict of guilty of felonious larceny unless the jury has been instructed as to its duty to fix the value of the property stolen; the jury having to find that the value of the property taken exceeds $200.00 for the larceny to be felonious.\nState v. Keeter, 35 N.C. App. 574, 575, 241 S.E. 2d 708, 709 (1978), and cases cited. G.S. 14-72 was amended, effective 1 January 1980, to increase from $200 to $400 the value which stolen property must exceed in order to constitute a felony. 1979 Sess. Laws, ch. 408. The $400 figure is applicable here, since the larceny charged occurred in May 1980. The larceny count of the indictment stated the value of the stolen property as $750; however, the evidence tended to show that the heaters were worth only $75 each. The court did not instruct the jury to fix the value of the stolen property and did not submit an issue of misdemeanor larceny. The felonious larceny conviction must therefore be vacated, and the case must be remanded for entry of a sentence consistent with a verdict of guilty of misdemeanor larceny. Keeter, 35 N.C. App. 574, 241 S.E. 2d 708; see also State v. Cornell, 51 N.C. App. 108, 275 S.E. 2d 857 (1981).\nAbsent our holding with regard to defendant\u2019s final contention, the failure to instruct the jury to fix the value of the stolen property and to submit an issue of misdemeanor possession would likewise require vacating the felony possession conviction and remanding for entry of a sentence consistent with a verdict of misdemeanor possession pursuant to G.S. 14 72(a). Our holding with regard to defendant\u2019s final contention, however, requires remand for entry of a judgment of dismissal. Defendant finally contends that \u201c[possession of stolen property is an element of larceny [and] [t]hus both convictions cannot be sustained.\u201d This contention presents the question of whether the defendant can be convicted both of the larceny of property and of the possession of the same stolen property which was the subject of the larceny. We hold that he cannot.\nWe so hold, first, because \u201c[i]t is our authority and duty . . . to apply a valid statute so as to give it the meaning and effect intended by the Legislature at the time of its enactment,\u201d State v. Williams 286 N.C. 422, 430, 212 S.E. 2d 113, 119 (1975); and we do not ascribe to the General Assembly, in its creation of the possession offense, the intent to effect such exposure to dual punishment for the same offense. The 1977 General Assembly amended G.S. 14-72(a) by inserting the words \u201cor the possessing of stolen goods knowing them to be stolen,\u201d thereby creating the offense of misdemeanor possession of stolen goods. 1977 N.C. Sess. Laws ch. 978 \u00a7 2. It also enacted G.S. 14-71.1, creating the offense of felony possession of stolen goods. 1977 N.C. Sess. Laws ch. 978 \u00a7 1. We ascribe to both enactments the legislative purpose set forth with regard to G.S. 14-71.1 in State v. Kelly, 39 N.C. App. 246, 249 S.E. 2d 832 (1978), viz., \u201cto provide protection for society in those incidents where the State does not have sufficient evidence to prove who committed the larceny, or the elements of receiving.\u201d 39 N.C. App. at 248, 249 S.E. 2d at 833. As the court there noted, \u201c[t]his could occur where the State has no evidence as to who committed the larceny and has, by the passage of time, lost the probative benefit of the doctrine of possession of recently stolen property.\u201d Id. The apparent intent was to provide for the State a position to which to recede when it cannot establish the elements of breaking and entering or larceny but can effect proof of possession of the stolen goods. It would constitute a purposeless parsing of the single act of theft to extract from the larceny violation a distinct offense of possession of the very stolen goods which were the subject of the larceny. The presumed purpose of such extraction, enhanced punishment for the offender, could be achieved by the far simpler expedient of merely augmenting the penalty for the larceny itself. Further, because the knowledgeable rogue would then have reason promptly to pass the fruits of his thievery to another for the purpose of attempting to avert at least one of two potential convictions deriving from his single larcenous act, the effect of a contrary interpretation could well be the involvement of multiple defendants in what might otherwise be the criminality of a single offender. We decline to impute to the General Assembly in the enactment of the possession offense the improbable intent which the foregoing considerations suggest.\nWe so hold, second, because as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, it is the duty of the court to adopt the interpretation which will save the act. In re Dairy Farms, 289 N.C. 456, 223 S.E. 2d 323 (1976). \u201cEven to avoid a serious doubt the rule is the same.\u201d Dairy Farms, 289 N.C. at 465, 223 S.E. 2d at 329 quoting from National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1936). While \u201cthe decisional law in the area [of the double jeopardy clause of the fifth amendment of the United States Constitution] is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator,\u201d Albernaz v. United States, \u2014 U.S. --- , --- , 67 L.Ed. 2d 275, 284, 101 S.Ct. 1137, 1144-1145 (1981), we have at minimum \u201cserious doubt\u201d that a contrary interpretation of the possession statute could survive the fifth amendment double jeopardy clause protection \u201cagainst multiple punishments for the same offense.\u201d North Carolina v. Pearce, 395 U.S. 711, 717, 23 L.Ed. 2d 656, 665, 89 S.Ct. 2072, 2076 (1969).\nThe double jeopardy clause of the fifth amendment is applicable to the states through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 23 L.Ed. 2d 707, 89 S.Ct. 2056 (1969); see also North Carolina v. Pearce, 395 U.S. 711, 23 L.Ed. 2d 656, 89 S.Ct. 2072 (1969). The Court in Benton stated: \u201c[T]he double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and ... it should apply to the States through the Fourteenth Amendment.\u201d 395 U.S. at 794, 23 L.Ed. 2d at 716, 89 S.Ct. at 2062. The validity of defendant\u2019s dual convictions thus \u201cmust be judged . . . under [the United States Supreme] Court\u2019s interpretations of the Fifth Amendment double jeopardy provision.\u201d Benton, 395 U.S. at 796, 23 L.Ed. 2d at 717, 89 S.Ct. at 2063.\nThe standard established by that Court for determining the validity of convictions under the double jeopardy clause is as follows:\n[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. Gavieres v. United States, 220 U.S. 338, 342, 55 L.Ed. 489, 490, 31 S.Ct. 421, and authorities cited. In that case this court quoted from and adopted the language of the Supreme Court of Massachusettes in Morey v. Com. 108 Mass. 433: \u201cA single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from-prosecution and punishment under the other.\nBlockburger v. United States, 284 U.S. 299, 304, 76 L.Ed. 306, 309, 52 S.Ct. 180, 182 (1932). \u201cIf each [offense] requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.\u201d Iannelli v. United States, 420 U.S. 770, 785 n. 17, 43 L.Ed. 2d 616, 627, 95 S.Ct. 1284, 1294 (1975). We consider the offenses here in the light of this standard.\nLarceny, the first offense of which defendant was convicted, is a common law crime which consists of\nthe . . . taking and carrying away from any place at any time of the personal property of another, without the consent of the owner, with the . . . intent to deprive the owner of his property permanently and to convert it to the use of the taker or to some other person than the owner.\nState v. Booker, 250 N.C. 272, 273, 108 S.E. 2d 426, 427 (1959). Possession of stolen goods, the second offense of which defendant was convicted, is a statutory crime. G.S. 14-72(a) provides:\nExcept as provided in subsections (b) and (c) below, . . . the possessing of stolen goods knowing them to be stolen, of the value of not more than four hundred dollars ($400.00) is a misdemeanor punishable under G.S. 14-3(a).\nTo establish the offense of larceny, then, the State must show that defendant took and carried away the goods of another with the intent to deprive the owner thereof permanently. To establish the offense of possession of stolen property the State must show that defendant possessed the goods of another knowing them to have been stolen. Evidence establishing commission of the offense of larceny necessarily also establishes commission of the offense of possession of the stolen property which was the subject of the larceny. It is impossible to take and carry away the goods of another without in the process possessing those goods with knowledge that they are stolen. There are no facts to be proven in establishing possession of stolen goods which are not also proven in establishing the larceny of those goods. The prosecutor who has made out a case of larceny ipso facto has also made out a case of possession of the stolen goods which were the subject of the larceny. \u201c[I]t is clearly not the case that \u2018each [statute] requires proof of a fact which the other does not.\u2019 \u201d Brown v. Ohio, 432 U.S. 161, 168, 53 L.Ed. 2d 187, 195, 97 S.Ct. 2221, 2226 (1977) (emphasis in original).\nIn Harris v. Oklahoma, 433 U.S. 682, 53 L.Ed. 2d 1054, 97 S.Ct. 2912 (1977), defendant had been convicted of felony murder arising from an armed robbery. He was subsequently convicted on a separate information charging the underlying offense of robbery with firearms, the trial court having rejected his claim that the second prosecution violated the double jeopardy clause of the fifth amendment. The United States Supreme Court reversed, stating:\nWhen as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one. [Citations omitted.] \u201c. . . [A] person [who] has been tried and convicted for a crime which has various incidents included in it, : . . cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense. \u201d [Citations omitted.]\nHarris, 433 U.S. at 682-683, 53 L.Ed. 2d at 1056, 97 S.Ct. at 2913 (emphasis supplied).\nIt can be argued that a defendant is guilty of both larceny and possession of the stolen property which was the subject of the larceny on the theory that the act of larceny terminates at the latest when defendant leaves the victim\u2019s premises, and that thereafter he is committing the distinct offense of possession of the stolen property. Absent clearly expressed legislative intent to that effect, the decision of the United States Supreme Court in Brown v. Ohio deprives this argument of viability. The defendant in Brown had been convicted under Ohio law of the offenses of joyriding (taking or operating a vehicle without the owner\u2019s consent) and auto theft (joyriding with the intent permanently to deprive the owner of possession). The Ohio Court of Appeals held that the two offenses constituted the same statutory offense within the meaning of the double jeopardy clause. It further held, however, that the defendant could be convicted of both crimes because \u201c[t]he two prosecutions [were] based on two separate acts . . . which occurred [nine days apart].\u201d Brown, 432 U.S. at 164, 53 L.Ed. 2d at 193, 97 S.Ct. at 2224. The United States Supreme Court reversed, stating:\nThe Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units. [Citation omitted.] The applicable Ohio statutes . . . make the theft and operation of a single car a single offense. . . . Accordingly, the specification of different dates in the two charges on which [defendant] was convicted cannot alter the fact that he was placed twice in jeopardy for the same offense in violation of the Fifth and Fourteenth Amendments.\nBrown 432 U.S. at 169-170, 53 L.Ed. 2d at 196-197, 97 S.Ct. at 2227.\nThe facts here would seem to invoke the Brown result, even more so than those in Brown. If the double jeopardy clause precludes conviction for both theft of a vehicle and joyriding nine days later in the stolen vehicle, by the same reasoning it precludes conviction for both larceny of property and the uninterrupted possession at some later time of the stolen property which was the subject of the larceny. There is no evidence in the record here tending in any way to establish that the possession count resulted from a reacquisition by defendant of the stolen property subsequent to relinquishment of possession. The question of applicability of the double jeopardy clause where a defendant relinquishes possession of the stolen property which was the subject of the larceny, and thereafter reacquires it, is thus not before us.\n\u201cThe proper remedy for convictions on both greater and lesser offenses is to vacate both the conviction and the sentence of the lesser-included offense.\u201d United States v. Michel, 588 F. 2d 986, 1001 (5th Cir.) cert. denied 444 U.S. 825 (1979); see also Williams v. Indiana, 383 N.E. 2d 416 (Ind. App. 1978). Accordingly, the possession of stolen property judgment must be vacated, and the case must be remanded for entry of a judgment of dismissal.\nThe result is\nAs to the felonious larceny conviction, the judgment is vacated, and the case is remanded to the trial court for entry of a judgment as upon a verdict of guilty of misdemeanor larceny.\nAs to the possession of stolen property conviction, the judgment is vacated, and the case is remanded to the trial court for entry of a judgment of dismissal.\nChief Judge MORRIS concurs.\nJudge Martin (Robert M.) dissents.\n. G.S. 14-72(a) is the applicable statute here because, as noted above, only a conviction of misdemeanor possession could be sustained under the facts of this case.\nG.S. 14-72(c) and G.S. 14-71.1 relate to felony possession. The double jeopardy clause would appear equally applicable whether the possession was of the felony or misdemeanor variety.\n. G.S. 14-72(a). The felony possession section of this statute adds \u201cor having reasonable grounds to believe them to be stolen.\u201d G.S. 14-72(c). The other felony possession statute contains a similar phrase: \u201cor having reasonable grounds to believe the same to have been feloniously stolen or taken.\u201d G.S. 14-71.1.\n. For other recent United States Supreme Court decisions in the double jeopardy area, see Albernaz v. United States, \u2014 U.S. \u2014 , 67 L.Ed. 2d 275, 101 S.Ct. 1137 (1981); Illinois v. Vitale, 447 U.S. 410, 65 L.Ed. 2d 228, 100 S.Ct. 2260 (1980); and Whalen v. United States, 445 U.S. 684, 63 L.Ed. 2d 715, 100 S.Ct. 1432 (1980).\n. See State v. Andrews, 52 N.C. App. 26, 277 S.E. 2d 857 (1981).", "type": "majority", "author": "WHICHARD, Judge." }, { "text": "Judge Martin (Robert M.)\ndissenting.\nI believe that the law stated in the opinion of Martin (Harry C.), J., in State v. Andrews, 52 N.C. App. 26, 277 S.E. 2d 857 (1981) governs the question of former jeopardy raised on this appeal.", "type": "dissent", "author": "Judge Martin (Robert M.)" } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Charles M. Hensey, for the State.", "John W. Dees for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ULYSEES PERRY\nNo. 808SC1038\n(Filed 19 May 1981)\n1. Criminal Law \u00a7 101\u2014 witness threatened \u2014 no mistrial\nThe trial court did not err in denying defendant\u2019s motion for a mistrial made on the ground that events at trial caused the jury to conclude that defendant was somehow responsible for an attempt to intimidate or tamper with a witness, since there was no indication before the jury of any impropriety on defendant's part; testimony which was the same as or similar to that objected to by defendant had already been admitted on cross-examination pursuant to questions by defendant\u2019s own counsel; and defendant declined the opportunity to request any instructions he desired regarding the matter.\n2. Larceny \u00a7 7\u2014 heaters taken from church \u2014testimony of one trustee \u2014sufficiency of evidence\nIn a prosecution of defendant for larceny, there was no merit to his contention that the State failed to show that heaters were taken from a church without permission because the State presented only one of the three trustees who constituted the ruling body of the church and were in charge of church property, since the State\u2019s failure to call the other two trustees went to the weight and not to the sufficiency of the evidence.\n3. Criminal Law \u00a7 111\u2014 jury instruction \u2014presumption of innocence \u2014defendant\u2019s contentions \u2014 lack of evidence\nThere was no merit to defendant\u2019s arguments that (1) the trial court erred by failing to instruct that the presumption of innocence remains with a defendant \u201cuntil that moment that the twelve agree on the verdict of guilty and for not one moment less,\u201d since the court did instruct on the presumption of the defendant\u2019s innocence and if defendant desired elaboration, he should have requested it; (2) the trial court erred in stating defendant\u2019s contentions, since defendant did not object at trial to the statement of his contentions and there was no gross misstatement by the trial court; and (3) the court failed to explain that the lack of evidence could be just as important as the existence of evidence, since the court had instructed that the State must prove defendant guilty beyond a reasonable doubt and that a reasonable doubt could arise \u201cout of the evidence or the lack of evidence or some deficiency in it.\u201d\n4. Larceny \u00a7 9\u2014 acquittal on breaking and entering charge \u2014 absence of charge on value of stolen property \u2014 felonious larceny conviction improper\nWhere the jury returned a verdict of not guilty of felonious breaking or entering and guilty of felonious larceny, the conviction of felonious larceny should be vacated and the case should be remanded for entry of a sentence consistent with a verdict of guilty of misdemeanor larceny, since the larceny count of the indictment stated the value of the stolen property as $750; the evidence, however, tended to show that the three stolen heaters were worth only $75 each; and the trial court did not instruct the jury to fix the value of the stolen property and did not submit an issue of misdemeanor larceny.\n5. Criminal Law \u00a7 26; Larceny \u00a7 1 \u2014 conviction of larceny and possession of stolen property\u2014 double jeopardy\nDefendant could not be convicted both of the larceny of property and of the possession of the same stolen property which was the subject of the larceny. G.S. 14-71.1; G.S. 14-72(a).\nJudge Martin (Robert M.) dissenting.\nAppeal by defendant from Small, Judge. Judgment entered 3 July 1980 in Superior Court, WAYNE County. Heard in the Court of Appeals 11 March 1981.\nDefendant was tried for breaking or entering with intent to commit larceny; larceny following a breaking or entering of goods valued at $750; and possession of stolen property.\nReverend Willard Carlton testified for the State that he was assistant pastor of Moye Memorial Free Will Baptist Church in Goldsboro; that he conducted services on the second and fourth Sundays of each month; and that Reverend J. H. Moore conducted services on the first and third Sundays of each month. He testified that he was the last person to leave the church on 11 May 1980, and that he locked the doors upon leaving. When he next returned to the church on 19 May 1980, a Monday, he noticed that the front door was open and the latches on it were \u201cbusted.\u201d Three gas heaters which had been in the church on 11 May were missing. Subsequently, on 26 May 1980, he saw two of the heaters at Williams Used Furniture Store. Woodrow Williams testified for the State that he operated this store and that he bought the two heaters from defendant for $35 on the morning of 16 May 1980. Williams testified that in his opinion the fair market value of the heaters was $75 each. Finally, Mildred Carlton, Reverend Carlton\u2019s wife, testified for the State that she was a trustee of Moye Memorial Free Will Baptist Church in May 1980 and that she did not authorize defendant or anyone else to remove the heaters from the church.\nDefendant was acquitted of the breaking or entering charge but was convicted of both felonious larceny and felonious possession of stolen property. From a judgment of imprisonment, he appeals.\nAttorney General Edmisten, by Assistant Attorney General Charles M. Hensey, for the State.\nJohn W. Dees for defendant appellant." }, "file_name": "0048-01", "first_page_order": 76, "last_page_order": 87 }