{ "id": 8526638, "name": "STATE OF NORTH CAROLINA v. DAVID JOSEPH; STATE OF NORTH CAROLINA v. DAVID ALLEN WHITT", "name_abbreviation": "State v. Joseph", "decision_date": "1982-11-16", "docket_number": "No. 8219SC119", "first_page": "436", "last_page": "442", "citations": [ { "type": "official", "cite": "59 N.C. App. 436" } ], "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": "271 S.E. 2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566386 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0374-01" ] }, { "cite": "276 S.E. 2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 619", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568165 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0619-01" ] }, { "cite": "273 S.E. 2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "293", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "301 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570016 ], "year": 1981, "pin_cites": [ { "page": "674", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0669-01" ] }, { "cite": "192 S.E. 2d 441", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 249", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564205 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0249-01" ] } ], "analysis": { "cardinality": 599, "char_count": 13564, "ocr_confidence": 0.782, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20557549880321208 }, "sha256": "978b5823fc4d201e756a554a634b28dcdfc5dceaf19bf0f87e2a514dd22f06ed", "simhash": "1:9363d5e2644c1010", "word_count": 2290 }, "last_updated": "2023-07-14T18:55:54.350150+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WEBB and WELLS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DAVID JOSEPH STATE OF NORTH CAROLINA v. DAVID ALLEN WHITT" ], "opinions": [ { "text": "VAUGHN, Judge.\nDefendant Whitt brings forth two assignments of error. His first argument is that the larceny conviction impermissibly rests on an inference drawn from recent possession stacked upon an inference that he possessed the property.\nThe possession of recently stolen property raises a presumption of the possessor\u2019s guilt of larceny of the property. State v. Eppley, 282 N.C. 249, 192 S.E. 2d 441 (1972). The presumption arises only when the State proves beyond a reasonable doubt:\n(1) the property described in the indictment was stolen;\n(2) the stolen goods were found in defendant\u2019s custody and subject to his control and disposition to the exclusion of others though not necessarily found in defendant\u2019s hands or on his person so long as he had the power and intent to control the goods; and\n(3) the possession was recently after the larceny, mere possession of stolen property being insufficient to raise a presumption of guilt.\nState v. Maines, 301 N.C. 669, 674, 273 S.E. 2d 289, 293 (1981) (citations omitted).\nIt is clear that the State has proven that the property was stolen. Also, there is overwhelming evidence that the stolen goods were found in defendant Whitt\u2019s custody and subject to his control and disposition shortly after they were stolen. Whitt was present when the stereo was mentioned in the bowling alley, he went with Joseph and Richardson to where the goods were hidden, he helped load the truck, and he fled when the police appeared.\nDefendant Whitt\u2019s reliance on State v. Voncannon, 302 N.C. 619, 276 S.E. 2d 370 (1981) is mistaken. In Voncannon, the defendant testified that when he stopped at a closed gas station to buy a soda, he saw a man on a tractor. The man asked him if he knew where he could buy gas. Defendant said that he did not know of any gas stations in the area that were open all night, but suggested the man leave the tractor at his sister\u2019s house which was nearby. In reversing defendant\u2019s larceny conviction, the Supreme Court concluded that since there was no direct evidence that defendant possessed the tractor, the State was relying on an inference of guilt based on possession of recently stolen goods stacked upon an inference of possession of the stolen goods. The Court held that every inference must stand on direct evidence, not on another inference.\nIn this case, however, there is ample direct evidence that defendant Whitt was in possession of the recently stolen goods, so the inference of guilt based on the possession of recently stolen goods was proper.\nDefendant\u2019s Whitt\u2019s second argument is that the trial judge\u2019s comment on reasonable doubt improperly expressed an opinion. This argument is without merit. The judge correctly instructed the jury on reasonable doubt. Then, after summarizing the evidence, the judge said:\nNow, members of the jury, the State seeks to establish in each case the guilt of the defendant by the doctrine of recent possession. For this doctrine to apply to this case, the State must prove three things each beyond a reasonable doubt, as I have defined reasonable doubt to you, and that does mean reasonable doubt.\nSince the instruction on reasonable doubt was correct, merely saying \u201cand that does mean reasonable doubt\u201d cannot be prejudicial.\nDefendant Joseph does not discuss his first three assignments of error, so they are deemed abandoned. N.C. Rules of Appellate Procedure, Rule 28(a). Defendant Joseph\u2019s first argument is that the trial court committed prejudicial error in his instruction to the jury on the offense of felonious larceny. The trial judge gave the following instruction:\nNow, in the second count, as to each defendant, the defendants have been accused of felonious larceny. I charge that for you to find each defendant guilty of felonious larceny, the State must prove six things each beyond a reasonable doubt. First, that the defendant took the Pioneer tape player, the Pioneer cassette, the Integrated amplifier, the tuner, the audio control graphic equalizer, the BIC formula speakers, a portable color TV, a digital alarm clock, the 7.5 horsepower boat motor, the Realistic stereo with two speakers and the two custom speakers belonging to Jimmy Sheffield. Second, that the defendant carried away the property that I have just listed.\nNow, to carry it away, that just means to move it a very small \u2014 any small moving of the property is sufficient to be carrying it away. It doesn\u2019t have to be carried away where he couldn\u2019t find it.\nThird, that Jimmy Sheffield did not consent to the taking and carrying away of the property. Fourth, that at the time the defendant intended to deprive Jimmy Sheffield of its use permanently. Fifth, that the defendant knew that he was not entitled to take the property. And sixth, either that the property was taken from a building after a breaking or entering or that the property was worth more than four hundred dollars.\nThen the judge said:\nSo I charge that if you find from the evidence and beyond a reasonable doubt, as I have defined that to you, that on or about the 12th day of October, 1980, David Joseph took and carried away Jimmy Sheffield\u2019s property, the list of which I have repeated a number of times and I won\u2019t repeat it again here, from a building after a breaking or entering or that the property was worth more than four hundred dollars, it would be your duty to return a verdict of guilty of felonious larceny. However, if you do not so find or have a reasonable doubt as to any one of these things, you would return a verdict of not guilty of felonious larceny as to David Joseph.\nDefendant Joseph claims that the instruction was prejudicial because the trial judge failed to repeat three elements of the offense: that Sheffield did not consent to the taking and carrying away; that defendant intended to deprive Sheffield of the property permanently; and that defendant knew he was not entitled to the property. Since the judge had just fully instructed the jury on all the elements of larceny, there was no prejudicial error in his failure to repeat a few of the elements. The charge must be read as a whole, if it presents the law fairly the fact that some portions, read alone, might be erroneous, is not grounds for reversal. State v. Cummings, 301 N.C. 374, 271 S.E. 2d 277 (1980).\nDefendant Joseph\u2019s second argument is that the trial court erred in its instructions on his choice not to testify. A defendant\u2019s failure to testify does not create any presumption against him. G.S. 8-54. The trial judge gave the following instruction to the jury on defendant\u2019s privilege not to testify: \u201cNeither defendant in this case has testified. The law of North Carolina gives them this privilege. The same law also assures them that their decision not to testify creates no presumption against them. Therefore, their sil\u00e9nce is not to influence your decision in any way.\u201d The basis for the defendant\u2019s assignment of error is the following:\nYou take into consideration all their contentions to you in these cases and any other contentions that occur to you that arise from the evidence or lack of evidence except, as I have instructed you, you are not \u2014 the fact that the defendant does not take the witness stand, doesn\u2019t testify, creates no presumption against him. The law of North Carolina gives him that privilege.\nDefendant argues that the phrase \u201cany other contentions\u201d was prejudicial because it implied that the jury should consider the defendant\u2019s failure to testify as evidence. The judge, however, instructed the jury several times that defendant\u2019s right not to testify created no presumption against him. As mentioned above, the entire charge to the jury must be read as a whole. The phrase \u201cany other contentions\u201d does not negate the instructions to the jury that defendant had the right and privilege not to testify.\nWe have carefully reviewed defendants\u2019 assignments of error and find no error.\nNo error.\nJudges WEBB and WELLS concur.", "type": "majority", "author": "VAUGHN, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General George W. Boylan, for the State.", "Oldham and Alexander, by Pierre Oldham, for defendant appellant Joseph.", "Appellate Defender Adam Stein and Assistant Appellate Defender Nora B. Henry, for defendant appellant Whitt." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAVID JOSEPH STATE OF NORTH CAROLINA v. DAVID ALLEN WHITT\nNo. 8219SC119\n(Filed 16 November 1982)\n1. Larceny \u00a7 7.4\u2014 possession of recently stolen property \u2014 inference of larceny\nAn inference of defendant\u2019s guilt of larceny under the doctrine of possession of recently stolen property was not based upon an inference that defendant possessed the property and was proper where there was ample direct evidence that defendant was in possession of the recently stolen goods.\n2. Criminal Law \u00a7 112.1\u2014 comment on reasonable doubt \u2014 absence of prejudice\nWhere the trial court correctly instructed the jury on reasonable doubt, defendant was not prejudiced by the court\u2019s statement, \u201cand that does mean reasonable doubt.\u201d\n3. Larceny \u00a7 8\u2014 instructions \u2014 failure to repeat all elements of crime\nWhere the trial court had just fully instructed the jury on all of the elements of larceny, there was no prejudicial error in the court\u2019s failure to repeat some of the elements when he thereafter instructed the jury that it should return a verdict of guilty if it found that defendant took and carried away the victim\u2019s property from a building after a breaking or entering or that the property was worth more than $400.00.\n4. Criminal Law \u00a7 116.1\u2014 defendant\u2019s failure to testify \u2014 instruction on \u201cany other contentions\u201d\nThe trial court\u2019s instruction that the jury should consider \u201cany other contentions that occur to you that arise from the evidence or lack of evidence\u201d did not imply that the jury should consider the defendant\u2019s failure to testify as evidence where the court instructed the jury several times that defendant\u2019s exercise of his right not to testify created no presumption against him.\nAPPEAL by defendants, Joseph and Whitt, from Hairston, Judge. Judgments entered 30 September 1981 in Superior Court, RANDOLPH County. Heard in the Court of Appeals 14 September 1982.\nDefendants were tried on bills of indictment charging them with felonious breaking and entering and felonious larceny.\nThe State\u2019s evidence tended to show the following. On 12 October 1980, Jimmy Sheffield returned to his house at 6:00 p.m. and discovered several items of personal property were missing and his back door had been jimmied open. The missing property consisted of a JVC integrated amplifier, a JVC AM-FM tuner, a Pioneer tape player, a Pioneer cassette tape deck, an audio control graphic equalizer, two BIC speakers, a GE portable color TV, a digital alarm clock, a 7.5 horsepower boat motor, a Realistic stereo with two speakers, and two custom speakers. Sheffield testified that he immediately called the police department and police officer Mclver came to his house. At 6:30 p.m., Mclver and Mr. and Mrs. Sheffield noticed tire tracks in a field behind the house. They followed the tracks down to the woods and found the stolen property hidden under a large piece of tin.\nOfficer Mclver testified that after they found the stereo equipment in the woods, he called two other policemen to plan a stakeout. He went back to the woods at approximately 8:30 p.m., and stayed there most of the night. At about 3:18 a.m., a truck drove up. Mclver radioed the other policemen to set up at various locations. Three men got out of the truck and began to load the stereo equipment on the truck. When Mclver thought the men were finished, he radioed the police cars that were standing by to move in. Then he ordered the three men to halt and identified himself as a police officer. Two of the men, later identified as defendants Joseph and Whitt, escaped into the woods, the third man, Richardson, jumped into the truck. After he chased Joseph and Whitt for a while, Mclver returned to the truck and arrested Richardson.\nAccording to Mclver, Richardson made the following statement at the police station:\n\u201cAt the time of about 6:00 o\u2019clock a friend took me through town and to the bowling alley. There I was told by Mr. David Joseph that I could buy a stereo at a cheap price if I would help them load it. We rode around and wasted time at his business establishment until early in the morning. He then took me and an unidentified person behind the Datsun place in Asheboro, North Carolina, where the stereo equipment was hidden in some woods, and I and Mr. Joseph and the other person began to load it. At no time beforehand was I told that the stereo was not legal. The truck we were riding in was in the possession of David Joseph.\u201d\nIn March 1981, Richardson identified the third person as David Whitt.\nAt trial, Richardson testified that he was drinking beer at the bowling alley with defendants from 8:00 p.m. to 3:00 a.m. One of the defendants mentioned that they had a stereo for sale. Richardson said that he wanted to see the stereo. They left the bowling alley in David Joseph\u2019s father\u2019s truck and went to the field behind the Datsun dealership. Then Richardson followed the defendants into the woods. The defendants picked up the piece of tin, and the three men loaded the stereo equipment onto the truck. Richardson explained that he did not give Whitt\u2019s name to the police when he was arrested because he was afraid of him.\nThe jury returned verdicts of not guilty of breaking and entering, and guilty of felonious larceny, and defendants Whitt and Joseph were sentenced to not less than five years and not more than six years imprisonment.\nAttorney General Edmisten, by Assistant Attorney General George W. Boylan, for the State.\nOldham and Alexander, by Pierre Oldham, for defendant appellant Joseph.\nAppellate Defender Adam Stein and Assistant Appellate Defender Nora B. Henry, for defendant appellant Whitt." }, "file_name": "0436-01", "first_page_order": 468, "last_page_order": 474 }