Volume 307 — North Carolina Reports

1. Criminal Law 150 — misdemeanor and felony cases — unanimous Court of Appeals decision in misdemeanor case — dissent in felony case — no right to appeal misdemeanor case to Supreme Court Where misdemeanor and felony charges were consolidated for trial in the superior court, separate verdicts were returned and separate judgments were entered, the cases were joined together in an appeal to the Court of Appeals, the Court of Appeals rendered a unanimous decision in the misdemeanor case, and there was a dissent in the Court of Appeals in the felony case, defendant was not entitled to appeal the misdemeanor case to the Supreme Court as a matter of right under G.S. <cross_reference>7A-30</cross_reference> (2). 2. Criminal Law 4 — attempt to commit felony — misdemeanor Absent statutory provisions to the contrary, an attempt to commit a felony is a misdemeanor. The portion of the holding in State v. Parker, <cross_reference>224 N.C. 524</cross_reference> (1944) which, without qualification, makes an attempt to commit a felony punishable as a felony is erroneous and is no longer authoritative. 3. Criminal Law 4; Receiving Stolen Goods 1.2 — attempt to receive stolen goods — misdemeanor An attempt to receive stolen goods is not punishable as a felony pursuant to G.S. <cross_reference>14-3</cross_reference>(b) but is punishable only as a misdemeanor. 4. Receiving Stolen Goods 1.1 — recovered goods not stolen goods When stolen property is recovered, it loses its character or status as stolen property. Therefore, when the police recovered stolen silver flatware prior to its delivery to defendant, it lost its status or character as stolen property, and defendant could not be convicted of receiving stolen goods in connection with the silver flatware. However, a ring which one of the thieves offered to surrender to the police but which the police never actually recovered did not lose its character or status as stolen property.<page_number>Page 2</page_number> 5. Criminal Law 4; Receiving Stolen Goods 1.2 — recovered stolen property — conviction of attempt to receive stolen property When a defendant has the specific intent to commit a crime and under the circumstances as he reasonably saw them did the acts necessary to consummate the substantive offense, but, because of facts unknown to him essential elements of the substantive offense were lacking, he may be convicted of an attempt to commit the crime. Therefore, defendant could be convicted of an attempt to receive stolen property although the property in question had been recovered by the police and had lost its status as stolen property before it was delivered to defendant. 6. Receiving Stolen Goods 6 — attempt to receive stolen goods — instructions on criminal intent The trial court's instructions adequately stated the law pertinent to an attempt to receive stolen property, including the requirement that the jury find criminal intent in order to convict, and correctly applied the facts to that law. 7. Receiving Stolen Goods 1.2 — elements of attempted receipt of stolen property The elements which must be proven to support a conviction for attempted receipt of stolen property are: (1) guilty knowledge or a reasonable belief that the property was stolen at the time received; and (2) the commission of some overt act with the intent to commit the major offense. 8. Receiving Stolen Goods 5.1 — attempted receipt of stolen goods — sufficiency of evidence In a prosecution for attempted receiving of a stolen ring and stolen silverware, the State's evidence was sufficient to permit the jury reasonably to infer that defendant had guilty knowledge or a reasonable belief that the ring and silverware which he purchased were stolen property and that he received the property with a dishonest purpose where it tended to show that the thief told defendant that he had lost the ring he offered for sale along with other property when he was "getting away" and that he later retrieved the ring; the thief assured defendant that there would be no identifying marks on the ring and told defendant that he had used a false name in their dealings; the thief flatly told defendant that the silverware was "hot" and that it was not initialed; at the time of the silverware transaction, defendant expressed his fears concerning the police; after purchasing the ring, defendant sold it having knowledge or reason to believe it was stolen; and after defendant purchased the silverware, he answered negatively when he was specifically asked by a police officer if he had purchased any silver that day. 9. Criminal Law 169.7; Receiving Stolen Goods 4 — exclusion of evidence — subsequent admission of similar evidence Even if the trial court in a prosecution for attempted receipt of stolen property improperly excluded testimony by defendant (1) that customers came into his metal purchasing business and jokingly told him that they had stolen property to sell to him, which was offered to negative guilty knowledge, and (2) that he received telephone calls threatening his and his family's life, which was offered to corroborate his testimony that he feared the seller of the stolen property posed<page_number>Page 3</page_number> a threat to him and his family, any possible prejudice to defendant was cured by the court's subsequent admission of substantially the same testimony. 10. Criminal Law 112.4 — circumstantial evidence relating to intent — instruction on circumstantial evidence not required Where there is direct evidence of other elements of the crime, it is not necessary to give an instruction on circumstantial evidence when it relates to intent even if the only evidence of criminal intent is circumstantial. 11. Criminal Law 85.1, 117 — acts of good conduct — inadmissibility to negate motive, intent, knowledge or criminal plan The trial court did not err in refusing to give the jury an instruction which would have permitted the jury to consider specific acts as relevant to negate motive, intent, knowledge and criminal plan, since permitting defendants to introduce specific acts of "good conduct" under the guise of negating motive, intent, knowledge or criminal plan would amount to an erosion of the established rule that good character may not be shown by specific acts. 12. Criminal Law 121 — instructions on entrapment — failure to use the word "predisposed" In a prosecution for attempted receipt of stolen property, the trial court's instruction on entrapment that it must appear that an agent of law enforcement officers "used persuasion or trickery to cause the defendant (to attempt) to receive stolen goods, which he was not otherwise willing to do" adequately conveyed the import of the defense of entrapment without the use of the word "predisposed" since there was no significant difference between the word "willing" used by the trial court and the word "predisposed." 13. Criminal Law 7 — evidence of entrapment — no shifting of burden of proof Defendant has the burden to prove the defense of entrapment to the satisfaction of the jury, and once defendant has presented evidence of entrapment, the burden does not then shift to the prosecution to prove predisposition beyond a reasonable doubt. 14. Criminal Law 7 — defense of entrapment — when available The defense of entrapment is available when there are acts of persuasion, trickery or fraud carried out by law enforcement officers or their agents to induce a defendant to commit a crime and when the origin of the criminal intent lies with the law enforcement agencies. 15. Criminal Law 7 — sale of stolen property to defendant by police agent — no entrapment as matter of law In this prosecution for attempted receipt of stolen property, the evidence did not disclose that the actions of police officers and their agent amounted to entrapment as a matter of law but permitted an inference by the jury that defendant was ready and willing to enter the illegal transactions when merely afforded the opportunity to do so where it tended to show: officers had reasonable grounds to believe that defendant was receiving stolen property on the basis of statements made by an arrested thief; the police made an agreement with the<page_number>Page 4</page_number> thief to recommend a lesser sentence in exchange for his agreement to wear a microphone and transmitter into defendant's place of business and to offer to sell a stolen ring and stolen silverware to defendant; defendant purchased the ring after the thief told him that he had been involved in stealing property and that he had lost the ring while attempting to "get away" but was able to go back and find it; the thief told defendant that he did not want to sign his real name on the form which was provided to him when defendant bought the ring; after receiving this damaging information, defendant proceeded to purchase and resell the ring; later, when the thief returned with the silverware, he told defendant that the silverware was stolen and defendant proceeded to buy it; defendant then called on the police "hotline" and asked what had been reported as stolen; he was furnished a list of items and was told that there was a report of stolen silverware; an officer asked defendant if he had bought any silver flatware that day, and defendant replied in the negative; and defendant testified that he bought the stolen items because he was afraid for his own safety.

1. Criminal Law 66.9, 66.16 — photographic identification procedures not impermissibly suggestive — independent origin of in-court identification In a prosecution for felonious assault, kidnapping and first degree sexual offense, two photographic lineups shown to the victim the day after the crimes occurred were not impermissibly suggestive because the victim had described his assailant as wearing a white T-shirt and defendant was the only person in the lineups wearing a<page_number>Page 43</page_number> white T-shirt where the photographs were presented to the victim in separate bundles without any suggestive comment by police officers present at the time; the first lineup contained eight color photographs and the second contained ten black-and-white photographs; different photographs of defendant were used in each lineup; several of the other photographs in each lineup showed black males wearing other kinds of white shirts; and the victim immediately selected defendant's photograph at each lineup without any prompting. Furthermore, even if the photographic procedures were impermissibly suggestive, the evidence supported the trial court's determination that the victim's in-court identification of defendant was of independent origin and was therefore admissible where it showed that, before the assault, the victim had paid particular attention to his assailant through the window of an arcade because he thought the assailant might be awaiting an opportunity to steal his bicycle; the area was well-lit and the moon was full; when defendant stopped the victim in the street, there was sufficient light for the victim to identify the assailant as the man he had seen at the arcade; upon escape from the alley in which he had been assaulted, the victim immediately gave to the police a detailed account of a man fitting defendant's description; at trial, the victim pointed out the defendant without any hesitation as his assailant; and the victim testified that his in-court identification of defendant was based upon his observation of him at the crime scene rather than on the photographs he viewed. 2. Kidnapping 1.2 — removal to commit first degree sexual offense — sufficiency of evidence The State's evidence in a first degree kidnapping case was sufficient to support a finding by the jury that defendant forced the victim into an alley for the purpose of committing a first degree sexual offense as alleged in the indictment rather than merely to interrogate him as to the whereabouts of a third person where it tended to show: defendant forced the victim into an alley by use of an ice pick, interrogated the victim briefly as to the whereabouts of a third person, struck him with his hands and then ordered him to remove all of his clothes; when the victim was nude, defendant made him get down on his hands and knees; while in this position, the victim heard the sound of a package tearing and then felt defendant's penis touch him; defendant committed anal intercourse on the victim twice and forced the victim to commit an oral sexual act on him; and investigators later found lubrication jelly, a condom, and a foil condom pack in the alley near the victim's trousers. 3. Assault and Battery 14.5 — assault with deadly weapon with intent to kill inflicting serious injury — sufficiency of evidence The State's evidence was sufficient to support defendant's conviction of assault with a deadly weapon with intent to kill inflicting serious bodily injury where it tended to show that defendant stabbed the victim over 20 times in the neck and chest with an ice pick and then announced that he was going to kill the victim with a switchblade knife, and that the victim managed to escape only when defendant was reaching for the knife and found that his wallet was missing.<page_number>Page 44</page_number> 4. Criminal Law 89.2 — exclusion of corroborating testimony on collateral matter In a prosecution for felonious assault, kidnapping and first degree sexual offense, the trial court did not err in the exclusion of testimony of a defense witness offered to corroborate testimony by defendant's father on cross-examination that a third person, rather than defendant, had yelled to him that "someone just got stabbed to death over there," since the trial court had the discretion to control how far the parties could go in corroborating a witness on collateral matters at the trial. Furthermore, defendant was not prejudiced by the exclusion of such testimony. 5. Criminal Law 102.3 — jury argument — waiver of objection A defendant in a non-capital case waived objection to the prosecutor's jury argument by failing to object thereto at the trial.

Constitutional Law 32; Criminal Law 101.4 — right to impartial jury — contact with State's witness The Court of Appeals erred in finding no error in the trial judge's denial of defendant's motion to set aside the verdict of manslaughter which was based upon alleged misconduct of a sheriff in driving three jurors to a restaurant for an evening meal during a break in the jury deliberations since (1) the sheriff testified as a witness for the State in its case-in-chief, (2) the trial judge had cautioned the jurors not to associate themselves with anyone involved in the case, (3) extraordinary precautions had been taken to prevent the sheriff from having any contact with the jury, and (4) since, by gratuitously transporting the three jurors to the restaurant, the sheriff granted them a special "favor."

Narcotics 4.6, 5 — conviction of possession of more than one ounce of marijuana — necessity for instruction on amount possessed — verdict treated as guilty of simple possession Defendant could not properly be convicted of possession of more than one ounce of marijuana in violation of G.S. <cross_reference>90-95</cross_reference>(d)(4) when the trial court failed to submit to the jury the essential element of the amount of marijuana possessed, notwithstanding the evidence tended to show that if defendant possessed any marijuana, he possessed 59.9 grams, which is more than one ounce. However, in finding defendant guilty of possession of more than one ounce of marijuana, the jury necessarily found facts establishing the offense of simple possession of marijuana in violation of G.S. <cross_reference>90-95</cross_reference>(a)(3), and the case will be remanded for resentencing as upon a verdict of guilty of simple possession of marijuana.

1. Criminal Law 138 — aggravating factors in sentencing — element of "the offense" As used in the statute providing that "[e]vidence necessary to prove an element of the offense may not be used to prove any factor in aggravation," G.S. 15A-1340.4(a)(1), the phrase "the offense" refers to the criminal charge of which the defendant is convicted or to which he pleads guilty or no contest rather than to the crime charged in the indictment. 2. Criminal Law 138 — guilty plea to second degree murder — premeditation and deliberation as aggravating factor in sentencing Where a defendant charged with first degree murder pled guilty to second degree murder, a determination by a preponderance of the evidence in the sentencing phase that defendant premeditated and deliberated the killing could be considered as an aggravating factor in determining an appropriate sentence for the defendant since (1) the finding of premeditation and deliberation was not based upon evidence necessary to prove an element of the offense of second degree murder as prohibited by G.S. 15A-1340.4(a)(1); (2) such factor was reasonably related to the purposes of sentencing within the meaning of G.S. 15A-1340.4(a); and (3) the fact that defendant's guilty plea had been accepted pursuant to a plea bargain did not preclude the sentencing court from considering facts underlying the original charge which was transactionally related to the charge to which defendant pled guilty.<page_number>Page 371</page_number> 3. Criminal Law 138 — finding that aggravating factors outweighed mitigating factors — sentence within discretion of court Upon a finding by the preponderance of the evidence that aggravating factors outweigh mitigating factors, the question of whether to increase the sentence above the presumptive term, and if so, to what extent, remains within the trial judge's discretion. 4. Criminal Law 138 — aggravating and mitigating factors — weighing by court The number of aggravating and mitigating factors found by the sentencing court is only one consideration in determining which factors outweigh others, and the court may properly emphasize one factor more than another in a particular case. The balance struck by the trial court will not be disturbed if there is support in the record for his determination G.S. <cross_reference>15A-1444</cross_reference>(a1).

1. Narcotics 4.3 — constructive possession — sufficiency of evidence In a prosecution for felonious possession of a controlled substance with intent to sell or deliver in violation of G.S. <cross_reference>90-95</cross_reference>(a)(1) the State offered ample, substantial evidence to raise a reasonable inference that defendant was in constructive possession of the dwelling searched and an outbuilding behind the dwelling where the State's uncontroverted evidence showed that (1) defendant was seen in the yard at the residence on at least four occasions within two weeks of the time the heroin was seized. (2) two public works commission bills addressed to defendant were found in the dwelling, (3) a trash service bill addressed to defendant was in the house, (4) a bottle of pills bearing defendant's name was found at the residence, (5) the mailbox in front of the house bore the name Mr. and Mrs. Williams, and (6) a path led directly from the house to the dilapidated four-room building behind the residence in which the heroin was found. 2. Narcotics 4 — possession with intent to sell or deliver — sufficiency of evidence The State's evidence was sufficient to permit, but not require, the jury to reasonably infer that defendant possessed 2.7 grams of heroin with intent to sell or deliver where the evidence tended to show that heroin was sold from a residence that defendant allegedly possessed; that when the police searched the residence, drug paraphernalia, some containing a heroin residue, were found in the residence; that in the shed or outbuilding behind the house, police located a large plastic bag containing two smaller bags; that one of these bags contained about 10-15 tinfoil squares, and material frequently used to package heroin for sale; and that an identifiable thumb print was found on one of the tinfoil squares, and this thumb print was later identified as being that of defendant.

Wills 28.4 — holographic will — construction of provision concerning education of grandchildren — view toward "circumstances attendant" to writing of will Where a testatrix stated in item VII of her holographic will that "I request that my executor see that Sarah Anne Thomas is given sufficient funds to complete her education. . . . The same situation in the case of Dorris Elizabeth Thomas Taylor is recognized by (the executor) and may be also provided for (the other grandchildren)," the trial court correctly found that Sarah Anne Thomas and Dorris Elizabeth Thomas Taylor could be reimbursed for educational expenses incurred beyond high school but that none of the other grandchildren were entitled to the payment of any educational expenses. The significant circumstances attendant to the writing of item VII of the will were that the youngest sister of Sarah Anne and Dorris Elizabeth had been seriously ill and the father of<page_number>Page 486</page_number> these girls had incurred large medical expenses as a result. Such circumstances clearly indicated a desire to assist in the education of her grandchildren if at the time of her death the need to do so existed because the parents of both grandchildren were unable to shoulder the expense. Therefore, the Court of Appeals erred in holding that the testatrix intended to establish a trust fund for her grandchildren for their education in an unnamed amount and for an unnamed period of time.

1. Criminal Law 143.1 — notice of probation revocation hearing — right to modify conditions of probation Where defendant was given notice of a probation revocation hearing and was present at the hearing with counsel, G.S. <cross_reference>15A-1344</cross_reference>(d) permitted the court at the hearing to modify the conditions of defendant's probation without notice to defendant of the court's intent to modify the conditions. 2. Criminal Law 143.1 — notice of probation revocation hearing — statement by court in prior hearing Defendant received sufficient notice of a 28 September 1981 hearing to revoke her probation for failure to be gainfully employed where the trial judge stated in open court at defendant's 10 September 1981 probation revocation hearing that the case would automatically be returned to the court at the next session without further orders of the court if defendant had not found full-time gainful employment within two weeks. G.S. <cross_reference>15A-1345</cross_reference>(e). 3. Criminal Law 143.4 — right to counsel at probation revocation hearing The trial court erred in revoking defendant's probation where defendant's counsel was not present at her probation revocation hearing and defendant did not waive her right to have counsel present during the hearing. G.S. <cross_reference>15A-1345</cross_reference>(e). 4. Criminal Law 143.5 — probation revocation hearing — right to present relevant information Defendant's rights under G.S. <cross_reference>15A-1345</cross_reference>(e) were violated where defendant was not effectively allowed to speak on her own behalf at her probation revocation hearing and was not permitted to present information relevant to the charge that she had violated a condition of probation.

1. Rape and Allied Offenses 3 — indictment for first degree rape — failure to allege "with force and arms" An indictment for first degree rape was not fatally defective for failure to contain the averment "with force and arms," since G.S. <cross_reference>15-155</cross_reference> specifically states that no "indictment for felony or misdemeanor . . . shall be stayed or reversed . . . for omission . . . of the words `with force and arms' . . . ." 2. Criminal Law 76, 93 — admissibility of confession — order of proof — no prejudice The defendant was not prejudiced in a voir dire hearing to determine the admissibility of his confession by the error of the trial court in placing the burden of production on him since the trial judge considered all evidence, placed the burden of persuasion on the State, and made his ruling accordingly. 3. Criminal Law 162 — no objection to questions asked on voir dire — no right to complain — no prejudice Where defendant failed to object to a line of questioning asked defendant during the voir dire hearing on defendant's motion to suppress his confession, he could not complain on appeal about the interchange. Furthermore, the questions could not have prejudiced defendant because they were asked on voir dire, and it is presumed that the trial judge disregarded any incompetent evidence that was admitted. 4. Criminal Law 122.1 — request for additional instructions — no undue emphasis on testimony Where, after the jury had been fully instructed and sent to deliberate, they requested that they be allowed to hear the defendant's confession and the prosecuting witness's testimony about the rape again, and where the trial court asked both the district attorney and the defense counsel if they had any objection to his giving the highlights of the prosecuting witness's testimony and in repeating the defendant's confession and defendant did not object, defendant waived his right to have an objection to the charge considered on appeal. Nor did the trial judge impermissibly express an opinion by only summarizing the prosecuting witness's testimony while reading defendant's statement verbatim. G.S. <cross_reference>15A-1222</cross_reference>. 5. Criminal Law 169.6 — exclusion of testimony — failure to put answer in record The Court could not determine whether an alleged error was prejudicial where defendant failed to include in the record what his answer would have been to a question had he been allowed to answer.<page_number>Page 553</page_number> 6. Rape and Allied Offenses 4.2 — first degree rape — evidence of bruises on prosecuting witness's neck properly admitted In a prosecution for first degree rape, the trial court did not err in allowing a detective to state on rebuttal that he noticed bruises on the prosecuting witness's neck several days after the alleged rape had occurred.

1. Homicide 21.7 — murder in the second degree — sufficiency of evidence Where the defendant admitted that he pointed a gun at the deceased and fired the weapon with the intent to shoot him in the left arm, there was substantial evidence of each element of murder in the second degree and that the defendant was the perpetrator. 2. Homicide 21.5 — murder in the first degree — sufficiency of the evidence The evidence of murder in the first degree was sufficient to go to the jury where it showed that deceased had argued with the defendant but no blows were exchanged during the initial argument; that the argument ended and the deceased moved to the bar; that everything quieted down for a few seconds; that approximately five minutes elapsed between the time he and the deceased began to argue and the time the shooting occurred; that he had "thought about many things" from the time the argument began until he shot the deceased; that the defendant had put a loaded, cocked pistol in his pocket that morning; that he had been shot before and that he did not want to be shot again; that no one had hit the defendant when he approached the deceased at the bar; that he used two hands to release the safety of his gun; that he shot the deceased three times, once in the back; and that the deceased was unarmed and had not threatened the defendant. 3. Criminal Law 162 — objection to evidence — later admitted without objection — waiver of earlier objection Where defendant objected to the admission of certain evidence, but the same or like evidence was later admitted without objection, defendant waived the objection to the earlier evidence.