STATE OF NORTH CAROLINA v. ULYSEES PERRY
No. 59A81
IN THE SUPREME COURT OF NORTH CAROLINA
Filed 3 March 1982
225 N.C. | 305 S.E. 2d 273
The defendant’s final contention is that the trial court erred in allowing into evidence a statement made by him to law enforcement officers. The defendant contends that his statement was prejudicial to him primarily because he indicated that he had had a haircut since the attack on Miss Martin. There was some evidence tending to indicate that, when Miss Martin first described her attacker to the police, she described him as having hair longer than the defendant’s. The defendаnt asserts that the admission of his statement that he had had a haircut was prejudicial to his case. He further asserts that he was in such an obvious state of mental imbalance at the time that he could not knowingly waive his rights or make a voluntary statement.
The trial court conducted a voir dire hearing on this issue and heard evidence from the State. The defendant offered no evidence. At the conclusion of the hearing the trial court made findings of fact and concluded that the defendant freely, understandingly, and voluntarily made the statement in question. There was ample evidence to support the trial court’s findings, and those findings in turn support the trial court’s conclusions. The trial court did not err by allowing an officer to testify as to the statement by the defendant.
In the defendant’s trial, we find
No error.
1. Larceny § 9— acquittal of breaking or entering—absence of finding as to value of stolen property—felonious larceny conviction improper
2. Criminal law § 26.5; Larceny § 1— punishment for larceny and possession of stolen property—no double jeopardy
The offenses of larceny and possession of the property which was the subject of the larceny are two separate and distinct offenses, and double jeopardy considerations therefore do not prohibit punishment of the same person for both offenses.
3. Larceny § 1; Receiving Stolen Goods § 1— larceny, receiving, and possession of stolen goods—conviction of only one offense
While the crimes of larceny, receiving, and possession of stolen property are separate and distinct offenses, the Legislature did not intend to punish a defendant for receiving or possessing the same goods that he stole. Therefore, though a defendant may be indicted and tried on charges of larсeny, receiving, and possession of the same property, he may be convicted of only one of those offenses.
Justice MITCHELL took no part in the consideration or decision of this case.
Justice CARLTON concurring in result only.
THE State of North Carolina appeals as of right pursuant to
The defendant was charged in a bill of indictment, proper in form, with felonious breaking or entering with intent to commit larceny, felonious larceny after breaking and entering, felonious receipt of stolen property knowing it to be stolen, and felonious рossession of stolen property knowing it to be stolen. His case came on for trial at the 30 June 1980 Session of Superior Court, Wayne County. The evidence showed that on Sunday afternoon, 11 May 1980, the Reverend Willard Carlton locked and secured the Moye Memorial Free Will Baptist Church building in Goldsboro after that day’s services. Sometime between that afternoon and Monday, 19 May 1980, there was a breaking and entering at the church and three gas heaters were taken. On 19 May 1980 Reverend Carlton discovered the doors of the church open with their latches broken and the heaters missing. He immediately notified the sheriff’s department. On or about the 26th day of May, Reverend Carlton observed two of the heaters in Williams’ Used Furniture and notified the sheriff of their location. The
For proof of the larceny charge the State relied solely on the doctrine of recent possession. The judge submitted to the jury three counts: felonious breaking or entering, felonious larceny pursuant to a breaking or entering, and felonious possession of stolen property. The charge of felonious receiving was not submitted. The jury returned verdicts of not guilty on the breaking or entering charge, guilty of felonious larceny and guilty of felonious possession. The defendant moved to set aside the jury’s verdict on the grounds that it was not supported by the evidence and that it was inconsistent. The judge denied the motion on both grounds and sentenced the defendant to three to six years imprisonment on the larceny conviction and two years imprisonment on the possession conviction. The defendant appealed to the Court of Appeals. That сourt, for the trial judge’s failure to submit for jury determination the value of the property stolen, vacated the felonious larceny conviction, and remanded the case to the trial court for entry of judgment as upon a verdict of guilty of misdemeanor larceny. It also, because of double jeopardy considerations, vacated the possession conviction, and remanded the case to the trial court for dismissal. One judge dissented as to vacating the possession conviction citing the decision by a different panel of thе Court of Appeals in the case of State v. Andrews, 52 N.C. App. 26, 277 S.E. 2d 857 (1981), as setting forth the applicable law on the question of former jeopardy.
Rufus L. Edmisten, Attorney General, by Evelyn M. Coman and Charles M. Hensey, Assistant Attorneys General, for plaintiff-appellant.
John W. Dees, attorney for defendant-appellee.
The State’s appeal sets forth two issues: (I) whether the Court of Appeals erred in vacating the felonious larceny conviction and directing entry of a judgment based upon misdemeanor larceny, and (II) whether the Court of Appeals erred in vacating the possession conviction and ordering the charge dismissed because of double jeopardy considerations.
(I)
[1] In support of its contention that the Court of Appeals erred in reducing the felonious larceny conviction to a misdemeanor, the State argues that
§ 14-72. Larceny of property; receiving stolen goods or possessing stolen goods not exceeding $400.00 in value. - (a) Except as provided in subsections (b) and (c) below, the larceny of property, the receiving of stolen goods knowing them to be stolen or the possessing of stolen goods knowing them to be stolen, of the value of not more than four hundred dollars ($400.00) is a misdemeanor punishable under
G.S. 14-3(a) . In all cases of doubt, the jury shall, in the verdict, fix the value of the property stolen.
(b) Thе crime of larceny is a felony, without regard to the value of the property in question, if the larceny is:
(1) From the person; or
(2) Committed pursuant to a violation of
G.S. 14-51 ,14-53 ,14-54 or14-57 ; or. . . .
This statute provides, inter alia, that the larceny of property of the value of not more than $400.00 is a misdemeanor unless the larceny fits into one or the categories enumerated in subsection (b).
The defendant was convicted of felonious larceny under section (b)(2) upon the theory that he stole the heaters pursuant to a breaking or entering in violation of
All of the evidence showed that the three heaters had a value of $75.00 each or an aggregate value of less than $400.00. In vacating the felonious larceny conviction, the Court of Appeals relied on State v. Keeter, 35 N.C. App. 574, 241 S.E. 2d 708 (1978), cases cited therein, and State v. Cornell, 51 N.C. App. 108, 275 S.E. 2d 857 (1981). The cases cited set forth the rule that it is improper, absent the jury’s finding that the property stolen exceeded the diacritical amount set forth in the statute, for the trial judge to accept a verdict of guilty of felonious larceny where the jury has failed to find the defendant guilty of thе felonious breaking or entering pursuant to which the larceny occurred.
’Our courts have repeatedly held that where a defendant is tried for breaking or entering and felonious larceny and the jury returns a verdict of not guilty of felonious breaking or entering and guilty of felonious larceny, it is improper for the trial judge to accept the verdict of guilty of felonious larceny unless the jury has been instructed as to its duty to fix the value of the property stolen; the jury having to find that the value of the property taken exceeds $200.00 for the larceny to bе felonious.’
(Citation omitted.)
G.S. 14-72 was amended, effective 1 January 1980, to increase from $200 to $400 the value which stolen property must exceed in order to constitute a felony. 1979 Sess. Laws, ch. 408.State v. Perry, 52 N.C. App. 48, 52-53, 278 S.E. 2d 273, 277.
Although the State urges us to overrule as unsound the prior cases establishing the rule set out above, we decline to do so. We believe that the statute cannot reasonably be interpreted to permit the defendant’s conviction of felonious larceny merely because he committed the larceny pursuant to or after a breaking or entering by some stranger. The only case upholding a felonious larceny conviction following the defendant’s acquittal of breaking or entering is State v. Curry, 288 N.C. 312, 218 S.E. 2d 374 (1975). There, this Court held that on the special facts in that case, a not guilty verdict on the breaking or entering count was not necessarily a finding by the jury that the larceny was not committed by the defendant pursuant to a breaking or entering. The Court reasoned that, given the facts produced at trial, the instructions of the trial judge and the verdicts, the jury in Curry must have found that the defendant aided and abetted two other men in a larceny they committеd pursuant to a breaking or entering by them, but did not aid or abet them in the breaking or entering. Thus, the two verdicts were logically reconciled. Here, the State did not contend, nor was any evidence presented which would permit the jury to find, that Perry had aided or abetted another’s larceny pursuant to a breaking. We agree with the decision of the Court of Appeals that the case must be remanded to the superior court for vacation of the felonious larceny conviction and for the pronouncement of judgment as upon a vеrdict of guilty of misdemeanor larceny.2
(II)
The State next contends that the Court of Appeals erred in vacating the defendant’s possession conviction and in ordering
While we believe that the Court of Appeals was correct in its ultimate conclusion that the defendant could not be convicted of both possession of the stolen рroperty and of the larceny of the same property, we do so for reasons different than those expressed in that court’s opinion.
We reason first, that larceny and possession of the property stolen in the larceny are separate and distinct offenses and therefore double jeopardy considerations do not prohibit punishment of the same person for both offenses; and second, that although it could have done so, the Legislature, by creation of the statutory offense of possession of stolen property, did not intend to punish an individual for both offenses.
(1)
[2] We find it unnecessary to engage in a lengthy discussion of double jeopardy considerations as did the panel below. The language employed in our North Carolina cases to define the test for double jeopardy is set out in State v. Cameron, 283 N.C. 191, 198, 195 S.E. 2d 481, 486 (1973), as follows:
‘The test of former jeopardy is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. Hence, the plea of former jeopardy, to be good, must be grounded on the ‘same offense’ both in law and in fact, and it is not sufficient that the two offenses grew out of the same transaction. If evidence in support of the facts alleged in the second indictment would be sufficient to sustain a conviction under the first indictment, jeopardy attaches, otherwise not. However,
if proof of an additional fact is required in the one prosecution, which is not required in the other, even though some of the same acts must be proved in the trial of each, the offenses are not the same, and the plea of former jeopardy cannot be sustained. . . .’
Our language follows closely the test employed by the United States Supreme Court to determine whether certain activity constitutes two offenses or only one as set out in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932):
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.3
As pointed out in a recent United States Supreme Court decision, “the question of what punishments are constitutionally permissible is not different from the question of what punishment the Legislative Branch intended to be imposed.” Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed. 2d 275 (1981). Thus, at issue here is whether the Legislature intended the offenses of larceny of property and possession of that property to be separate and distinct offenses. We believe that it did.
The majority of the panel of the Court of Appeals treated the possession incident to the larceny as a punishable offense and held that:
Evidence establishing commission of the offense of larceny necessarily also establishes commission of the offense of possession of the stolen property which was the subject of the larceny. It is impossible to take and carry away the goods of another without in the process possessing those goods with knowledge that they are stolen. There are no facts to be proven in establishing possession of stolen goods which are not also proven in establishing the larceny of those goods. The prosecutor who has mаde out a case of larceny ipso facto
has also made out a case of possession of the stolen goods which were the subject of the larceny. ‘[I]t is clearly not the case that “each [statute] requires proof of a fact which the other does not.“’
We cannot agree.
Contrary to the majority of the panel below, we conclude that the offenses of larceny and possession of the property which was the subject of the larceny are two separate and distinct offenses. The essential elements of possession of stolen рroperty are:4
- possession of personal property;
- which has been stolen;
- the possessor knowing or having reasonable grounds to believe the property to have been stolen; and
- the possessor acting with a dishonest purpose.
See
The essential elements of larceny are that the defendant:
- took the property of another;
- carried it away;
- without the owner’s consent; and
- with the intent to deprive the owner of his property permanently.
See State v. Booker, 250 N.C. 272, 108 S.E. 2d 426 (1959);
Proof only that one is in possession of personal property of a certain value which has been stolen, knowing the same has been stolen, and with a dishonest purpose, will not satisfy all of the
(2)
[3] The fact that larceny and possession of property stolen in that larceny are two separate and distinct offenses, for which a defendant may be punished does not mean however that he is so punishable under our statutes.
Unlike larceny, which is a common law offense, possession of stolen property is a statutory crime created by the Legislature and is of recent vintage. 1977 N.C. Sess. Laws, c. 978. By enactment of the provisions constituting possession of stolen property a crime, we do not ascribe to the Legislature the intent to punish a defendant for possession of the same property which he himself stole in the larceny.
Prior to the enactment of our statutes creating the statutory offense of possession of stolen property, the mere possession of such property was not a crime. Then, as now, upon evidence only that an individual was found to be in possession of stolen property, if the State could not prove possession so recent after the larceny as to raise the presumption that that individual stole it, he could not be convicted of larceny.7 If the State could not prove that someone else stole it, he likewise could not be convicted of receiving stolen property аs our Court decisions had established that recent possession did not permit a presumption of receiving.8 In that situation, many individuals found in possession of stolen property, including known dealers in such goods, were going unprosecuted. We believe it was with this background in mind that the Legislature enacted our possession statutes.
In State v. Kelly, 39 N.C. App. 246, 249 S.E. 2d 832 (1978), the Court of Appeals held that possession, unlike receiving, does not require proof that someone else stole the property. We agree with the rationale set forth in Kelly by Judge Harry Martin that the possession statutes wеre passed to provide protection for society in those incidences where the State does not have sufficient evidence to prove who committed the larceny, or the
The apparent intent was to provide for the State a position to which to recede when it cannot establish the elements of breaking and entering or larceny but can effect proof of possession of the stolen goods.
The same might be said of possession as has often been said of receiving—it is a “sort of secondary crime based upon a prior commission of the primary crime of larceny.” State v. Muse, 280 N.C. 31, 185 S.E. 2d 214 (1971), cert. denied, 406 U.S. 974, 92 S.Ct. 2409, 32 L.Ed. 2d 674, rehearing denied, 409 U.S. 898, 93 S.Ct. 99, 34 L.Ed. 2d 157 (1972), citing State v. Neill, 244 N.C. 252, 93 S.E. 2d 155 (1956).
In the interest of judicial economy, we have chosen to consider the obvious question of whether a defendant may be convicted and punished for both receiving and possession of the same stolen property. We conclude that he may not.
In State v. Davis, 302 N.C. 370, 275 S.E. 2d 491, this Court held that receiving and possession are distinct and separate crimes. While the two are separate crimes, for which the Legislature could have provided punishment for the same individual, we do not believe such was intended by the enactment of the possession statutes. Our reasoning is the same as we have expressed as to larceny and possession. The possession statutes were enacted to plug а loophole in the law as it then existed when one was found in possession of stolen goods and the State was unable to prove either the larceny or receiving.
The prosecutor may of course go to trial against a single defendant on charges of larceny, receiving, and possession of the same property. However, having determined that the crimes of larceny, receiving, and possession of stolen property are separate and distinct offenses, but having concluded that the Legislature did not intend to punish аn individual for receiving or possession of the same goods that he stole, we hold that, though a defendant
In summary, we affirm the action of the Court of Appeals in remanding the larceny case for resentencing as upon a verdict of guilty of misdemeanor larceny and we affirm, for different reasons, the action of the Court of Appeals in vacating the conviction for possession of stolen property and remanding the possession case for dismissal of the charges.
As to the larceny charge—affirmed.
As to the possession charge—modified and affirmed.
Justice MITCHELL took no part in the consideration or decision of this case.
Justice CARLTON concurring in result only.
I disapprove of section II(1) of the majority opinion and consider it dictum. It is well-established in this jurisdiction that appellate courts will not pass on a constitutional question, even when properly presented, if there is some other ground on which the case may be disposed. E.g., State v. Blackwell, 246 N.C. 642, 99 S.E. 2d 867 (1957); State v. Jones, 242 N.C. 563, 89 S.E. 2d 129 (1955). Here, the majority has disposed of the appeal on the grounds of legislative intent. Any discussion about double jeopardy is wholly unnecessary to the disposition of this case and may come back to haunt this Court in the future.
Otherwise, I do concur in the result reached by the majority.
Notes
Our holding here does not impair the exclusive or nonexclusive reliance upon the doctrine of recent possession to prove larceny.