{ "id": 8523876, "name": "STATE OF NORTH CAROLINA v. JAMES TERRY LITCHFORD", "name_abbreviation": "State v. Litchford", "decision_date": "1986-01-21", "docket_number": "No. 8525SC577", "first_page": "722", "last_page": "729", "citations": [ { "type": "official", "cite": "78 N.C. App. 722" } ], "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": "223 S.E. 2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "370" } ], "opinion_index": 0 }, { "cite": "289 N.C. 578", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571244 ], "year": 1976, "pin_cites": [ { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0578-01" ] }, { "cite": "223 S.E. 2d 534", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "535" } ], "opinion_index": 0 }, { "cite": "29 N.C. App. 117", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554380 ], "year": 1976, "pin_cites": [ { "page": "119" } ], "opinion_index": 0, "case_paths": [ "/nc-app/29/0117-01" ] }, { "cite": "237 S.E. 2d 834", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 263", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563804 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0263-01" ] }, { "cite": "283 S.E. 2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "777-78" } ], "opinion_index": 0 }, { "cite": "304 N.C. 249", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567447 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "274-75" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0249-01" ] }, { "cite": "321 S.E. 2d 856", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 237", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753111 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0237-01" ] }, { "cite": "11 S.E. 2d 146", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "opinion_index": 0 }, { "cite": "218 N.C. 369", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619478 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/nc/218/0369-01" ] }, { "cite": "676 F. 2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "1002", "parenthetical": "footnotes omitted" } ], "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "300 S.E. 2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "378" }, { "page": "379" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "660" }, { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] } ], "analysis": { "cardinality": 631, "char_count": 14732, "ocr_confidence": 0.801, "pagerank": { "raw": 2.8174036019305905e-07, "percentile": 0.8380845755872254 }, "sha256": "8cb1b13e219a971502c4e6fb8b5081309c9698e851b0560b4b09a99d9c773e7b", "simhash": "1:b7e714aae50994a0", "word_count": 2454 }, "last_updated": "2023-07-14T22:39:04.225821+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WHICHARD and EAGLES concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES TERRY LITCHFORD" ], "opinions": [ { "text": "COZORT, Judge.\nThe State\u2019s evidence tended to show the following:\nOn the evening of 2 February 1984, Officer Carl Burleson of the Morganton Police Department caught Edward Marshall inside the Burke Pharmacy, Inc. Earlier, Officer Burleson had spotted a van in the area. Found on the floor of the pharmacy was a duffel bag containing several types of drugs and a change box. Those drugs had been removed from the pharmacy\u2019s prescription department. Also found in the pharmacy was a walkie-talkie radio.\nMarshall testified that he and the defendant, James Terry Litchford, had a discussion in Louisville, Kentucky, about breaking into a drug store and developed a plan to do so. The plan called for Marshall to get a doctor to write a prescription for him and for Marshall to take it to a drugstore. While the druggist filled the prescription, Marshall would watch to see where the drugs were stored. Later that night, he and the defendant would return to the drugstore. Defendant would pull the cylinder out of the front door, and Marshall would enter the building and take the drugs. Then, Marshall would call the defendant on a walkie-talkie and defendant would pick up Marshall. Bobby McGuffin was enlisted to get the walkie-talkies and a radio scanner. McGuffin also owned the van to be used.\nThe three men left Kentucky and arrived in Morganton, spending the night in a motel room registered to Marshall. The following morning, Marshall obtained a prescription and had it filled at Burke Pharmacy, Inc. That night, defendant pulled the cylinder out of the door of Burke Pharmacy, Inc., and then drove off with McGuffin while Marshall entered the building to obtain the drugs. While inside the pharmacy Marshall heard a message over the walkie-talkie to \u201cget out.\u201d Immediately thereafter, Officer Burleson caught Marshall.\nMr. Dan Rhodes testified that he is the owner of Burke Pharmacy, Inc. and was the owner on 2 February 1984. Mr. Rhodes further testified that the narcotics found in the duffel bag on the floor of the pharmacy were \u201cmy narcotics.\u201d Each bottle of pills had Rhodes\u2019 wholesaler\u2019s identification number and a sticker with the word \u201cBurke\u201d on it. Rhodes further testified that he neither gave anyone permission to go into Burke Pharmacy after he closed it on 2 February 1984, nor did he give anyone permission to take the narcotics from Burke Pharmacy.\nThe defendant put on an alibi defense. Diane Pittman, the sister of defendant\u2019s girl friend, testified that on the night of 2 February 1984, defendant was at her apartment in Louisville, Kentucky. Brenda Erwin, a schoolteacher from Louisville, testified that she remembered seeing the defendant at Diane Pittman\u2019s apartment on the night of 2 February 1984 as well as the next day.\nThe jury returned verdicts of guilty of felonious breaking or entering and guilty of felonious larceny. Defendant received consecutive sentences of five years each for the felonious breaking or entering and the felonious larceny convictions.\nDefendant\u2019s first assignment of error brought forth in his brief is that the \u201ctrial court committed plain error in its mandate to the jury on the charge of felonious breaking or entering; on the grounds that an essential element of the crime \u2014 that there be an intent to commit a felony therein \u2014 was omitted.\u201d Considering the jury charge as a whole, we find the trial court\u2019s omission of an essential element of felonious breaking or entering in its final mandate does not constitute plain error.\nThe essential elements of felonious breaking or entering are (1) the breaking or entering (2) of any building (3) with the intent to commit any felony or larceny therein. G.S. 14-54(a). Here the indictment charged that the defendant broke and entered Burke Pharmacy, Inc., with the intent to commit larceny.\nIn its final mandate to the jury on the breaking or entering charge the trial court instructed as follows:\nSo I charge you that if you find from the evidence beyond a reasonable doubt that on or about February 2nd, 1984, the defendant Terry Litchford acting by himself or acting together with Edward Marshall and Bobby McGuffin removed the lock from the building occupied by Burke Pharmacy, Inc. for the purpose of permitting entry, or that Edward Marshall entered the building acting together with the defendant Terry Litchford and Bobby McGuffin, it would be your duty to return a verdict of guilty of breaking or entering as to the defendant Terry Litchford. If you do not so find or if you have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty with respect to the breaking or entering charge.\nThis instruction omitted the third essential element of felonious breaking or entering: that the breaking or entering be done with the intent to commit a felony or, as in this case, larceny therein. The defendant, however, did not object to the court\u2019s instruction and is precluded by North Carolina Rules of Appellate Procedure, Rule 10(b)(2) from challenging the instruction on appeal unless it constitutes plain error. State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983). The test for plain error is as follows:\n[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a \u201cfundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,\u201d or \u201cwhere [the error] is grave error which amounts to a denial of a fundamental right of the accused,\u201d or the error has \u201c \u2018resulted in a miscarriage of justice or in the denial to appellant of a fair trial\u2019 \u201d or where the error is such as to \u201cseriously affect the fairness, integrity or public reputation of judicial proceedings\u201d or where it can be fairly said \u201cthe instructional mistake had a probable impact on the jury\u2019s finding that the defendant was guilty.\u201d\nUnited States v. McCaskill, 676 F. 2d 995, 1002 (4th Cir. 1982) (footnotes omitted) (emphasis in original) ....\nId. 307 N.C. at 660, 300 S.E. 2d at 378. Having examined the entire record as directed by State v. Odom, supra, including construing the jury charge contextually as a whole, State v. Brackett, 218 N.C. 369, 11 S.E. 2d 146 (1940), we find no plain error.\nWhile defendant argues that the trial court in its final mandate incorrectly omitted the third essential element of felonious breaking or entering, defendant concedes that \u201c[e]arlier in its instructions, the court properly noted that the specific intent to commit the felony of larceny was an element of the crime.\u201d In fact, this instruction was given immediately prior to the final mandate. In light of the fact that the trial court had just previously instructed the jury on all the elements of felonious breaking or entering, we find that its omission of the third element in its final mandate does not constitute plain error. In this case we cannot say that the instructional mistake had a probable impact on the jury\u2019s finding that the defendant was guilty.\nThe second and third assignments of error brought forth in defendant\u2019s brief are based on the trial court\u2019s instructions to the jury on the offense of felonious larceny.\nDuring its instructions on felonious larceny the trial court instructed the jury, in part, that to find the defendant guilty it had to find:\nthe defendant . . . took and carried away a quantity of narcotic drugs belonging to Dan Rhodes without the consent of Dan Rhodes, . . . intending at that time to deprive Dan Rhodes of the use of the property permanently .... [Emphasis added.]\nThe indictment, however, charged that the stolen property was the personal property of Burke Pharmacy, Inc. Defendant argues that because the trial judge erroneously charged the jury that it had to find that Dan Rhodes owned the stolen property, he is entitled to have his felonious larceny conviction reversed or, in the alternative, is entitled to a new trial.\nAgain, we note that defendant never objected to the trial court\u2019s instructions on the felonious larceny charge and therefore is barred from assigning error based upon the instructions unless they constitute plain error.\nDefendant argues that the trial court\u2019s charging the jury that it had to find Dan Rhodes was the owner of the stolen property amounts to presenting a theory of the crime which was neither supported by the evidence nor charged in the indictment. See State v. Brown, 312 N.C. 237, 321 S.E. 2d 856 (1984); State v. Taylor, 304 N.C. 249, 283 S.E. 2d 761 (1981); and State v. Dammons, 293 N.C. 263, 237 S.E. 2d 834 (1977). We disagree.\nIt is the rule in this State \u201cthat the trial court should not give instructions which present to the jury possible theories of conviction which are either not supported by the evidence or not charged in the bill of indictment,\u201d and \u201cthat where the indictment for a crime alleges a theory of the crime, the State is held to proof of that theory and the jury is only allowed to convict on that theory.\u201d State v. Taylor, 304 N.C. 249, 274-75, 283 S.E. 2d 761, 777-78 (1981).\nHere, defendant was charged with felonious larceny of personal property belonging to Burke Pharmacy, Inc. The evidence shows that Burke Pharmacy, Inc. owned the stolen narcotics, that the drugs were so labeled, and that Dan Rhodes owned and operated Burke Pharmacy, Inc. Through Dan Rhodes\u2019 testimony, the State established that \u201cthe legal name of Burke Pharmacy\u201d is Burke Pharmacy, Incorporated.\u201d In his testimony Rhodes quite naturally referred to Burke Pharmacy, Inc., as his drugstore or pharmacy and the stolen narcotics as \u201cmy\u201d drugs. Even defense counsel fell into this pattern of equating Burke Pharmacy, Inc. and Burke Pharmacy\u2019s drugs as Rhodes\u2019 drugstore and drugs. Twice during his cross-examination of Rhodes, defense counsel referred to Burke Pharmacy, Inc., as \u201cyour [Rhodes\u2019] store\u201d and \u201cyour pharmacy.\u201d Also, in asking Rhodes about the inventory of stolen drugs other than Dolphine, defense counsel inquired: \u201cYou got none of the others.\u201d Technically, it would have been better for the trial court to have charged the jury that it had to find Burke Pharmacy, Inc., was the owner of the stolen narcotics rather than Dan Rhodes. Such a misstatement by the trial court, however, does not amount to submitting to the jury a possible theory of conviction which is neither supported by the evidence nor the indictment. This is especially true where defense counsel, in his questions, and witness Rhodes, in his answers, equated Burke Pharmacy, Inc., with Rhodes.\nFurthermore, it is true that \u201callegations of ownership described in the bill of indictment [for felonious larceny] are essential.\u201d State v. Crawford, 29 N.C. App. 117, 119, 223 S.E. 2d 534, 535 (1976). \u201cIf the person alleged in the indictment to have a property interest in the stolen property is not the owner or special owner of it, there is a fatal variance entitling defendant to a non-suit.\u201d State v. Greene, 289 N.C. 578, 585, 223 S.E. 2d 365, 370 (1976). Here there was no fatal variance for, as defendant concedes, both the indictment and the evidence show Burke Pharmacy, Inc., was the owner of the stolen property. The stolen drugs \u201cbelonged\u201d to Dan Rhodes in his role as owner and operator of Burke Pharmacy, Inc. There was no plain error in the trial court\u2019s instructions on felonious larceny because it cannot be said that the instructional mistake \u201chad a probable impact on the jury\u2019s finding of guilt.\u201d State v. Odom, 307 N.C. 655, 661, 300 S.E. 2d 375, 379 (1983).\nWe next review defendant\u2019s assignment of error that the trial court erred in failing to find, as a nonstatutory mitigating factor at sentencing, that the victim suffered only insubstantial loss. This assignment of error is without merit. The victim\u2019s loss was insubstantial because the police stopped defendant\u2019s accomplice in the middle of the larceny. The Fair Sentencing Act did not intend that a defendant be rewarded with a sentence less than the presumptive simply because the police kept him from being successful in his crime.\nLastly, we have reviewed defendant\u2019s remaining assignment of error and find no merit in it.\nNo error.\nJudges WHICHARD and EAGLES concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg by Special Deputy Attorney General James C. Gulick for the State.", "Appellate Defender Adam Stein by Assistant Appellate Defender Louis D. Bilionis for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES TERRY LITCHFORD\nNo. 8525SC577\n(Filed 21 January 1986)\n1. Burglary and Unlawful Breakings \u00a7 6\u2014 felonious breaking or entering \u2014 intent to commit larceny omitted from final mandate \u2014 no error\nThe trial court did not commit plain error in a prosecution for felonious breaking or entering by omitting the element of intent to commit larceny from its final mandate because the court had just previously instructed the jury on all the elements of felonious breaking or entering. N.C.G.S. 14-54(a), Rule of App. Procedure 10(b)(2).\n2. Larceny 8 8.2\u2014 larceny of narcotics from pharmacy \u2014 jury instructions \u2014 reference to individual rather than corporate ownership \u2014 no error\nThe trial court in a prosecution for felonious larceny did not submit to the jury a possible theory of conviction which was not supported by the evidence or the indictment, and there was no plain error in the court\u2019s instruction, where the indictment charged that the stolen property was the personal property of Burke Pharmacy, Inc.; the evidence showed that Burke Pharmacy, Inc. owned the stolen narcotics and that the drugs were so labeled; that Dan Rhodes owned and operated Burke Pharmacy, Inc.; that Rhodes in his testimony referred to Burke Pharmacy, Inc. as his drugstore and the stolen products as \u201cmy\u201d drugs; defense counsel fell into the pattern of referring to Burke Pharmacy, Inc. and Burke Pharmacy\u2019s drugs as Rhodes\u2019 drugstore and Rhodes\u2019 drugs; and the court charged the jury concerning narcotics belonging to Dan Rhodes. The stolen property belonged to Dan Rhodes in his role as the owner and operator of Burke Pharmacy, Inc. and it cannot be said that the instructional mistake had a probable impact on the jury\u2019s finding of guilt.\n3. Criminal Law \u00a7 138.42\u2014 insubstantial loss by victim \u2014 larceny stopped in progress \u2014 no mitigating factor\nThe trial court did not err in a felonious breaking or entering and felonious larceny prosecution by failing to find as a non-statutory mitigating factor that the victim suffered only insubstantial loss where the police stopped defendant\u2019s accomplice in the middle of the larceny.\nAppeal by defendant from Owens, Judge. Judgments entered 22 February 1985 in Superior Court, BURKE County. Heard in the Court of Appeals on 24 October 1985.\nAttorney General Lacy H. Thornburg by Special Deputy Attorney General James C. Gulick for the State.\nAppellate Defender Adam Stein by Assistant Appellate Defender Louis D. Bilionis for defendant appellant." }, "file_name": "0722-01", "first_page_order": 754, "last_page_order": 761 }