State v. Thompkins , 83 N.C. App. 42 ( 1986 )

348 S.E.2d 605 (1986)

STATE of North Carolina
v.
Tracy THOMPKINS.

No. 8612SC221.

Court of Appeals of North Carolina.

October 7, 1986.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Daniel F. McLawhorn, Raleigh, for the State.

Staples Hughes, Asst. Public Defender, Fayetteville, for defendant, appellant.

HEDRICK, Chief Judge.

Defendant assigns as error the trial court's denial of his motion to dismiss the charges for insufficiency of the evidence. Defendant contends that the evidence of felonious intent was insufficient to support the conviction for felonious breaking or entering. He also argues that the evidence is insufficient to show that the items taken had a value of greater than $400 and thus to support the conviction of felonious larceny. We disagree with defendant's contentions.

The offense of felonious breaking or entering is defined in G.S. 14-54(a) which provides, "Any person who breaks or enters any building with intent to commit any felony or larceny therein shall be punished as a Class H felon." The intent to commit larceny may be inferred from the fact that defendant committed larceny. State v. Wilson, 315 N.C. 157, 337 S.E.2d 470 (1985). G.S. 14-72 defines the offense of felonious larceny as "[l]arceny of goods of the value of more than four hundred dollars."

The evidence in the present case tends to show that Celia Scarborough locked the door to her home when she left on the morning of 21 August 1984. She testified that no one else had a key or permission to enter her house. Her neighbors, Carl and Lisa Maier, and Carl's sister Karon Maier, testified that about 9:00 that evening they saw a car drive slowly down the street and park near the Scarborough home. A man got out of the car and walked around the house. The Maiers saw the man walk from the side of the house to the rear of the house two times, each time carrying a large object in his hands. One of the objects was large and square and the other object was long and rectangular. The man then walked to his car. Karon Maier identified defendant as the man she had seen at the Scarborough house that night. The sheriff's deputy who investigated the incident testified that the door to the house had apparently been kicked in and the door casing was split open. Celia Scarborough testified that she came home after a neighbor called her at work to tell her what had happened, and she discovered that her color television and part of her stereo system, a tape deck and an amplifier, were missing. She testified that these items were worth about $900.

This evidence is sufficient for the jury to find that a breaking or entering occurred and that defendant was the perpetrator. The evidence tending to show that defendant was seen walking around the house with large objects in his hands and that a television and parts of a stereo were missing supports a finding that defendant committed larceny, and thus supports an inference that he committed the breaking or entering with the intent to commit larceny. Celia Scarborough's testimony about the value of the goods missing from her home is sufficient for the jury to find that they had a value of more than $400. State v. Cotten, 2 N.C.App. 305, 163 S.E.2d 100 (1968). We hold, therefore, that the trial court properly denied defendant's motion to dismiss.

Defendant also contends that the trial court erred by denying the jury's request to review testimony of defendant's alibi witness on the ground that a transcript was not available. We agree.

G.S. 15A-1233 provides, in pertinent part, as follows:

(a) If the jury after retiring for deliberation requests a review of certain testimony or other evidence, the jurors must be conducted to the courtroom. The judge in his discretion, after notice to the prosecutor and defendant, may direct that requested parts of the testimony be read to the jury and may permit the jury to reexamine in open court the requested materials admitted into evidence.

In State v. Ashe, 314 N.C. 28, 33, 331 S.E.2d 652, 656 (1985), the trial court responded to the jury foreman's request to review portions of the testimony as follows: "There is no transcript at this point. You and the other jurors will have to take your recollection of the evidence as you recall it and as you can agree upon that recollection in your deliberations." The Supreme Court in Ashe held that the trial judge erred in his response to the jury's request. The Court reasoned that the trial judge had not exercised his discretion as required by G.S. 15A-1233(a), because his response indicated that he felt that he could not grant the request. The Court also held that the failure of the trial court to exercise its discretion constituted reversible error because whether the jury fully understood the alibi witness' testimony "was material to the determination of defendant's guilt or innocence." Id. at 38, 331 S.E.2d at 658. (Citation omitted.)

In the present case, after the jury had retired for deliberations, they returned to the courtroom, and the foreman requested to rehear the testimony of Karon Maier and the sheriff's deputy. The trial judge responded as follows:

All right, sir. Let me advise you that —undoubtedly, this request is based upon your observation of the Court Reporter taking down everything that has been said. A transcript has not been prepared. The Court Reporter is making the recordation for appellate review purposes, and it would take a considerable period of time to type that up. Her notes are in a coded form of shorthand, so it is not possible to arrange that.

In addition to that, the law will not permit me to bring witnesses back to the stand at this stage and have them repeat as closely as they can what has been stated before. So unfortunately, your only recourse is to recall, as best you can, the testimony as it was presented in open court.

I'm sorry that there is no way I can accommodate that request.

This response, like the response of the trial judge in Ashe, indicates that the trial judge did not exercise his discretion in denying the jury's request to rehear testimony, but denied the request because he felt that he could not grant it. The trial court's failure to exercise its discretion constitutes reversible error. The jury requested a review of the testimony of Karon Maier, the only witness to identify defendant as the perpetrator. Whether the jury fully understood her testimony was material to the determination of defendant's guilt or innocence. Therefore, defendant is entitled to a new trial. Id.; State v. Lang, 301 N.C. 508, 272 S.E.2d 123 (1980).

Because of our disposition of this case, it is unnecessary for us to address defendant's remaining assignments of error.

New trial.

ARNOLD and ORR, JJ., concur.