{ "id": 8358772, "name": "STATE OF NORTH CAROLINA v. VANESSA ANGELENE DAYE", "name_abbreviation": "State v. Daye", "decision_date": "1986-12-02", "docket_number": "No. 8615SC487", "first_page": "444", "last_page": "448", "citations": [ { "type": "official", "cite": "83 N.C. App. 444" } ], "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": "229 S.E. 2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "716" } ], "opinion_index": 0 }, { "cite": "31 N.C. App. 513", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550514 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "513-14" }, { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/nc-app/31/0513-01" ] }, { "cite": "265 S.E. 2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1980, "pin_cites": [ { "page": "168" }, { "page": "169" }, { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "77" }, { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "280 S.E. 2d 175", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "178" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 713", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170730 ], "year": 1981, "pin_cites": [ { "page": "718" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0713-01" ] }, { "cite": "122 S.E. 2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "773" }, { "page": "773" } ], "opinion_index": 0 }, { "cite": "256 N.C. 27", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570691 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "33" }, { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0027-01" ] } ], "analysis": { "cardinality": 433, "char_count": 7629, "ocr_confidence": 0.769, "pagerank": { "raw": 4.7593208184981945e-08, "percentile": 0.2991423438200451 }, "sha256": "2c23022bdf835a1f1bdf10c78486f9e3d8d9c98056dbd39f4aeac79195ba2fef", "simhash": "1:174b60414b4bedd8", "word_count": 1229 }, "last_updated": "2023-07-14T16:07:52.921422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge HEDRICK and Judge ARNOLD concur." ], "parties": [ "STATE OF NORTH CAROLINA v. VANESSA ANGELENE DAYE" ], "opinions": [ { "text": "ORR, Judge.\nThere are three issues in this case: (1) Whether the trial court committed reversible error by overruling defendant\u2019s objections and motions to strike testimony that defendant \u201cconcealed\u201d items in the store; (2) Whether the evidence presented at trial was sufficient to deny defendant\u2019s motion to dismiss; and (3) Whether the trial court committed reversible error by giving additional instructions on defendant\u2019s decision not to testify. We find no error, and therefore, affirm the decision of the court below.\nDefendant was charged and tried under N.C. Gen. Stat. 14-72.1(a) (1986) which states:\nWhosoever, without authority, willfully conceals the goods or merchandise of any store, not theretofore purchased by such person, while still upon the premise of the store, shall be guilty of a misdemeanor ....\nIn other words, this statute makes willful concealment of merchandise an essential element of the offense created. See State v. Hales, 256 N.C. 27, 33, 122 S.E. 2d 768, 773 (1976).\nAt trial, the State presented three witnesses who testified that the defendant placed merchandise belonging to Maxway in or on her purse. The State\u2019s second witness, Barbara Wentler, was allowed, over objection, to characterize defendant\u2019s activities in the store as \u201cconcealing\u201d merchandise. Defendant argues that Wentler\u2019s reference to \u201cconcealing\u201d constituted an impermissible opinion on the ultimate issue to be decided by the jury.\nIn a similar case, State v. Chambers, 52 N.C. App. 713, 718, 280 S.E. 2d 175, 178 (1981), defendant objected to a witness\u2019 description of his work duties \u201c \u2018at the time when the breaking and entering started.\u2019 \u201d As in the case at bar, the defendant in Chambers contended that the witness\u2019 statement constituted an impermissible opinion on the ultimate issue of the case. This Court held in Chambers that the \u201cwitness\u2019 use of the term \u2018breaking and entering\u2019 was clearly a convenient shorthand term to describe what he was doing at the time defendant was found . . . and was not meant to constitute an opinion on a question of law.\u201d Id.\nLikewise, Ms. Wentler was using the term \u201cconcealed\u201d merely to describe, in a shorthand form, the actions she observed defendant make. On cross-examination Ms. Wentler admitted that by using the term \u201cconcealing,\u201d she meant that she observed defendant putting items in her pocketbook. Thus, we find the Chambers case persuasive in the case sub judice and hold that no error was committed. See N.C. Gen. Stat. Sec. 8C-1, Rule 701, Official Commentary (Supp. 1985) (\u201cNothing in [Rule 701] would bar evidence that is commonly referred to as a shorthand statement of fact.\u201d). See also State v. Smith, 300 N.C. 71, 77, 265 S.E. 2d 164, 168 (1980).\nThere are four elements to the offense created by G.S. 14-72.1. To be guilty, it must be proven that: (1) a person without authority, (2) willfully concealed store merchandise, (3) not purchased by that person, (4) while still upon the premises. State v. Hales, 256 N.C. at 33, 122 S.E. 2d at 773; State v. Watts, 31 N.C. App. 513, 513-14, 229 S.E. 2d 715, 716 (1976). Defendant contends that there was insufficient evidence to show concealment, and therefore, the trial court improperly denied defendant\u2019s motion to dismiss. We disagree.\nIn ruling on a sufficiency of the evidence question, the evidence is to be considered in the light most favorable to the State. State v. Smith, 300 N.C. at 78, 265 S.E. 2d at 169. This means that the State is entitled to every reasonable inference to be drawn from the evidence. Any contradictions or discrepancies are to be resolved in favor of the State and do not warrant dismissal. Id. To withstand the motion to dismiss, substantial evidence of all material elements of the offense must be present. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. at 78-79, 265 S.E. 2d at 169.\nDefendant argues that neither of the Maxway clerks testified that defendant\u2019s purse was closed or that the shirts were hidden from view at all times. Further, the arresting officer testified that defendant\u2019s purse was not closed and that the shirts \u201cwere just sat down on top\u201d of it. Thus, according to defendant, the element of concealment was not established.\nWhile the arresting officer did testify that the shirts were \u201csat down on top,\u201d he also testified that the defendant, in his presence, pulled three shirts out of a large purse. He further testified that the shirts were rolled up inside the purse. Ms. Wentler specifically testified that the defendant, when confronted by the officer, opened her handbag and took out three shirts. Both Ms. Jones and Ms. Wentler had testified that they observed the defendant take the shirts from their hangers, roll them up, and place them in her pocketbook which was positioned on the floor. Therefore, the arresting officer\u2019s testimony, that the shirts \u201cwere just sat down on top,\u201d is at most a contradiction or discrepancy to be resolved ultimately by the jury. The trial court\u2019s denial of defendant\u2019s motion to dismiss was, therefore, correct. See State v. Watts, 31 N.C. App. at 515, 299 S.E. 2d at 717 (upholding trial court\u2019s denial of motion to dismiss where there was contradictory evidence on the issue of concealment).\nThe final issue in the case at bar is whether the trial court properly brought the jury back in to give complete instructions on defendant\u2019s decision not to testify. The defendant essentially concedes in her brief that the language of the trial judge\u2019s corrected charge was accurate but maintains that the manner and context in which it was given was objectionable. After a thorough review of the record, we find that defendant failed to meet her burden of showing prejudicial error as required by N.C. Gen. Stat. Sec. 15A-1443(a) (1983).\nFor the reasons set forth above, defendant\u2019s conviction is affirmed.\nNo error.\nChief Judge HEDRICK and Judge ARNOLD concur.", "type": "majority", "author": "ORR, Judge." } ], "attorneys": [ "Attorney General Thornburg, by Assistant Attorney General Augusta B. Turner, for the State.", "Jacobs & Livesay, by William L. Livesay, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. VANESSA ANGELENE DAYE\nNo. 8615SC487\n(Filed 2 December 1986)\n1. Criminal Law \u00a7 71\u2014 concealing merchandise \u2014 shorthand statement admissible\nThe trial court did not err in a prosecution for willfully concealing merchandise by allowing a witness to characterize defendant\u2019s activities in the store as \u201cconcealing\u201d merchandise where the term \u201cconcealed\u201d was used merely as a shorthand description of defendant\u2019s actions. N.C.G.S. \u00a7 8C-1, Rule 701.\n2. Shoplifting \u00a7 1\u2014 willful concealment \u2014 evidence sufficient\nThe trial court correctly denied defendant\u2019s motion to dismiss a charge of willfully concealing merchandise where, although there was contradictory evidence, there was testimony that defendant had taken three shirts from their hangers; rolled them up; placed them in her pocketbook, which was on the floor; and pulled them from the handbag when confronted.\n3. Criminal Law \u00a7 116\u2014 failure of defendant to testify \u2014 corrected instruction \u2014 no prejudice\nDefendant in a wilful concealment case failed to show prejudicial error in the trial judge\u2019s corrected instruction on her decision not to testify. N.C.G.S. \u00a7 15A-1443(a) (1983).\nAppeal by defendant from McLelland, Judge. Judgment entered 20 February 1986 in Superior Court, Alamance County. Heard in the Court of Appeals 13 October 1986.\nDefendant Vanessa Angelene Daye was convicted of one count of willfully concealing merchandise belonging to Maxway and received a six months active sentence. From this conviction, defendant appeals.\nAttorney General Thornburg, by Assistant Attorney General Augusta B. Turner, for the State.\nJacobs & Livesay, by William L. Livesay, for defendant appellant." }, "file_name": "0444-01", "first_page_order": 472, "last_page_order": 476 }