{ "id": 8523182, "name": "STATE OF NORTH CAROLINA v. JEFFREY TYRONE McCULLERS", "name_abbreviation": "State v. McCullers", "decision_date": "1985-10-15", "docket_number": "No. 8511SC126", "first_page": "433", "last_page": "436", "citations": [ { "type": "official", "cite": "77 N.C. App. 433" } ], "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 286", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "295" } ], "opinion_index": 0 }, { "cite": "301 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565925 ], "year": 1980, "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0279-01" ] }, { "cite": "70 L.Ed. 2d 392", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1981, "opinion_index": 0 }, { "cite": "102 S.Ct. 523", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1981, "opinion_index": 0 }, { "cite": "454 U.S. 973", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6449733, 6449926, 6450121, 6449578, 6449417, 6449328, 6449490, 6449656, 6450011, 6449245, 6449822 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/us/454/0973-07", "/us/454/0973-09", "/us/454/0973-11", "/us/454/0973-05", "/us/454/0973-03", "/us/454/0973-02", "/us/454/0973-04", "/us/454/0973-06", "/us/454/0973-10", "/us/454/0973-01", "/us/454/0973-08" ] }, { "cite": "259 S.E. 2d 258", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 512", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572862 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0512-01" ] }, { "cite": "229 S.E. 2d 163", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "174" } ], "opinion_index": 0 }, { "cite": "291 N.C. 37", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557269 ], "year": 1976, "pin_cites": [ { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0037-01" ] } ], "analysis": { "cardinality": 428, "char_count": 8046, "ocr_confidence": 0.764, "pagerank": { "raw": 9.584899165802502e-08, "percentile": 0.5260520980180697 }, "sha256": "df411f383ef83b084347ea045241098aa15a705bb6ff6a9ecdcd653b90b83317", "simhash": "1:c3ea4406622e94e1", "word_count": 1322 }, "last_updated": "2023-07-14T21:22:01.691260+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BECTON and PARKER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JEFFREY TYRONE McCULLERS" ], "opinions": [ { "text": "HEDRICK, Chief Judge.\nDefendant first assigns error to the definition of \u201creasonable doubt\u201d used in the court\u2019s charge to the jury. The instruction prepared by defendant was not used, and he now argues that the instruction given to the jury did not conform to his requested instruction and that it erroneously placed upon defendant the burden of establishing the existence of a reasonable doubt. A trial judge is not required to give an instruction exactly as requested, but is merely required to give a correct instruction of the applicable law. State v. Monk, 291 N.C. 37, 54, 229 S.E. 2d 163, 174 (1976). The record in the present case reveals that the instruction given to the jury was substantially as requested by defendant, and was in all regards a proper, correct, and true instruction on the meaning of reasonable doubt. This assignment of error is without merit.\nDefendant next assigns error to the court\u2019s failure to instruct the jury on the lesser included offense of misdemeanor larceny. Defendant contends that the evidence favorable to him established the elements of the offense of misdemeanor larceny, and that the court\u2019s failure to charge the jury on this offense was, therefore, prejudicial error. Defendant\u2019s claims that the evidence shows 1) \u201cthat the larceny took place . . . out of the presence of the victim\u201d and 2) \u201cthat the larceny itself was not occasioned by the violent acts of the defendant\u201d are wholly unsupported by the evidence. All of the evidence tends to show that the taking of the money was \u201coccasioned by the violent acts of the defendant,\u201d namely striking the victim over the head with a soft drink bottle. The evidence also tends to show that when the money was taken from the cash register the victim was crawling toward another section of the store counter. There is absolutely no evidence in the record to support the giving of an instruction on misdemeanor larceny. This assignment of error is without merit.\nDefendant next argues that \u201cthe trial court erred in failing to summarize evidence favorable to the defendant during the court\u2019s charge to the jury.\u201d In his brief defendant relies heavily upon State v. Sanders, 298 N.C. 512, 259 S.E. 2d 258 (1979), cert. denied, 454 U.S. 973, 102 S.Ct. 523, 70 L.Ed. 2d 392 (1981), to support his contention that evidence favorable to a defendant must be summarized if the court summarized the State\u2019s evidence. Defendant fails to note, however, that our Supreme Court has held that \u201cwhile a trial judge must summarize evidence favorable to defendant which is brought out on cross-examination, there is no requirement that this be done when the evidence goes not to the establishment of a substantive defense but rather is of an impeaching quality and effect.\u201d State v. McDowell, 301 N.C. 279, 292, 271 S.E. 2d 286, 295 (1980).\nIn the present case all of the evidence which defendant contends should have been summarized tends to impeach the State\u2019s witnesses. As such it was not error for the trial court to refuse to summarize it during the charge to the jury. This assignment of error is without merit.\nDefendant\u2019s final assignment of error alleges two violations of the Fair Sentencing Act, G.S. 15A-1340.4. Defendant first contends that his two convictions for uttering forged paper could not be used to aggravate the sentences given in the present case. Because these convictions were obtained in December 1983, more than one month after the incident at Mr. Jernigan\u2019s store, defendant claims that they are not \u201cprior convictions\u201d under G.S. 15A-1340.4. This argument is totally baseless. The statute contains no language to support defendant\u2019s argument that the legislature intended to define \u201cprior conviction\u201d as a conviction obtained before a later offense was committed. We believe that a fair reading of the statute defines \u201cprior conviction\u201d as one that is obtained before the defendant is sentenced for another offense. Since the record clearly shows that defendant had two prior convictions for uttering forged papers, those convictions were properly used to support the aggravating factor found by the trial judge.\nDefendant also contends that it was error for the trial court to consider the same factors in aggravation of both sentences. No appellate court in this State has ever held that the same factor may not be used to aggravate more than one conviction, and we decline defendant\u2019s invitation to adopt such a principle. This assignment of error is without merit.\nNo error.\nJudges BECTON and PARKER concur.", "type": "majority", "author": "HEDRICK, Chief Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Roy A. Giles, Jr., for the State.", "Narron, O\u2019Hale, Whittington & Woodruff, by John P. O\u2019Hale, for defendant, appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JEFFREY TYRONE McCULLERS\nNo. 8511SC126\n(Filed 15 October 1985)\n1. Criminal Law \u00a7 112.1\u2014 refusal to give requested instruction on reasonable doubt\nThe trial court did not err in refusing to give defendant\u2019s requested instruction on reasonable doubt where the instruction given was substantially as requested by defendant and was in all regards a proper, correct and true instruction on the meaning of reasonable doubt.\n2. Robbery \u00a7 5.4\u2014 armed robbery case \u2014instruction on misdemeanor larceny not required\nThe evidence in an armed robbery prosecution did not require an instruction on misdemeanor larceny where all the evidence tended to show that the taking of money from a store was occasioned by the violent act of defendant in striking the owner over the head with a soft drink bottle and that when the money was taken from a cash register the owner was crawling toward another section of the store counter.\n3. Criminal Law \u00a7 113.1\u2014 impeaching evidence favorable to defendant \u2014 failure to summarize\nThe trial court did not err in failing to summarize evidence favorable to defendant which tended only to impeach the State\u2019s witnesses and did not go to the establishment of a substantive defense.\n4. Criminal Law \u00a7 138\u2014 aggravating factor \u2014 prior convictions \u2014 crimes committed after crime for which sentence imposed\nAs used in G.S. 15A-1340.4, \u201cprior conviction\u201d means one that is obtained before defendant is sentenced for another offense. Therefore, two prior convictions for uttering forged paper could be used to aggravate sentences imposed for robbery and assault even though the uttering offenses occurred after the robbery and assault.\n5. Criminal Law \u00a7 138\u2014 same factors aggravating two convictions\nThe same factors may properly be used to aggravate more than one conviction.\nAPPEAL by defendant from Martin (John CJ, Judge. Judgments entered 26 January 1984 in Superior Court, JOHNSTON County. Heard in the Court of Appeals 23 September 1985.\nDefendant was charged in proper bills of indictment with robbery with a dangerous weapon and assault with a deadly weapon with intent to kill inflicting serious injury. The State proceeded to trial on the charges of robbery with a dangerous weapon and assault with a deadly weapon inflicting serious injury. At trial the State offered evidence tending to show the following:\nOn 23 October 1983 a lone black male entered a store in Selma, North Carolina, owned by H. B. Jernigan and ordered a can of beer. As Mr. Jernigan went to get the beer, he was struck in the head with a soft drink bottle, causing serious injury. The assailant then took \u201cabout thirty dollars\u201d from the cash register and fled from the store. Mr. Jernigan testified that defendant was the man who attacked him. Another witness testified that defendant was the man she had seen run out of the store. Defendant was arrested within two hours of the incident. He allegedly admitted to a State Bureau of Investigation agent that he hit the victim with a soft drink bottle and had intended to rob the store, but that he had become frightened and left before taking any money. Defendant offered no evidence at the trial.\nDefendant was found guilty of common law robbery and assault with a deadly weapon inflicting serious injury and appealed from judgment imposing consecutive ten year sentences.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Roy A. Giles, Jr., for the State.\nNarron, O\u2019Hale, Whittington & Woodruff, by John P. O\u2019Hale, for defendant, appellant." }, "file_name": "0433-01", "first_page_order": 465, "last_page_order": 468 }