State v. Reeves , 62 N.C. App. 219 ( 1983 )

302 S.E.2d 658 (1983)

STATE of North Carolina
v.
Anthony Lee REEVES.

No. 8215SC1049.

Court of Appeals of North Carolina.

May 17, 1983.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Kaye R. Webb, Raleigh, for the State.

John P. Paisley, Jr., Graham, for defendant-appellant.

ARNOLD, Judge.

The defendant first argues that his motions to dismiss should have been granted. In passing on a motion to dismiss, it is the court's duty to ascertain if there is substantial evidence of each essential element of the offense charged. State v. Hutchins, 303 N.C. 321, 344, 279 S.E.2d 788, 803 (1981). "Substantial evidence" is defined as that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion. State v. Fletcher, 301 N.C. 709, 712, 272 S.E.2d 859, 860-61 (1981).

The evidence must be interpreted in the light most favorable to the State, drawing all reasonable inferences in the State's favor. State v. Porter, 303 N.C. 680, 685, 281 S.E.2d 377, 381 (1981). Applying these standards to the facts before us, we hold that the motions to dismiss were properly denied.

To convict a defendant of larceny, it must be shown that he (1) took the property of another; (2) carried it away; (3) without the owner's consent, and (4) with the intent to deprive the owner of the property permanently. State v. Perry, 305 N.C. 225, 235, 287 S.E.2d 810, 816 (1982); State v. McCrary, 263 N.C. 490, 492, 139 S.E.2d 739, 740 (1965). G.S. 14-72(a) provides that larceny of goods with a value of not more than $400 is a misdemeanor. There is no dispute here that the jacket taken was worth less than $400.

The defendant contends that it has not been shown that the jacket was taken without the owner's consent. We disagree.

The evidence showed that the defendant was asked to stop before he left the store by Leath and King. They wanted to talk to him because King noticed a bulge in his pants. Both of them followed the defendant outside and both asked him to come back. King told the defendant's female companion that no charges would be pressed against her if she would cooperate.

This evidence, when considered under the tests for a motion to dismiss, is sufficient to establish the fact that the taking was without consent.

The second exception raised by the defendant is that the trial judge should not have been allowed to amend the arrest warrant during the trial.

In this misdemeanor case, the warrant for arrest serves as the State's pleading. G.S. 15A-922(a). An allegation of ownership in the person from whom the property was taken is essential. See State v. Greene, 289 N.C. 578, 584, 223 S.E.2d 365, 369 (1976). The warrant "may be amended at any time prior to or after final judgment when the amendment does not change the nature of the offense charged." G.S. 15A-922(f). We also note G.S. 15-24.1, which allows for amendment of a warrant in superior court "when there shall appear to be any variance between the allegations in the warrant and the evidence in setting forth the ownership of property if, in the opinion of the court, such amendment will not prejudice the defendant."

Amending the arrest warrant at trial to change the owner of the property taken does not change the nature of the offense charged. After the amendment, defendant was tried for the same offense that is alleged in the warrant.

In addition, the trial judge heard arguments from counsel on the propriety of amending the warrant. We can only assume that he then allowed the amendment in the belief that it would not prejudice the defendant.

The defendant also contends that it was error to let King's testimony on ownership be based on hearsay. King first testified in front of the jury that Southland Shirt Outlet was owned by Block Industries. On voir dire, she stated that the vice-president of the company or Fred Block could tell who owned the company. The trial judge then granted the State a recess.

After the break, King was allowed to testify over the defendant's objection that the store is a division of National Services Industries, Inc. The defendant contends that King's testimony was based on information generated during the recess and is inadmissible hearsay.

Hearsay is defined in North Carolina as an assertion of a person, other than the witness in his present testimony, which is offered to prove the truth of the matter asserted. See 1 Brandis, N.C.Evidence § 138 (2nd rev. ed. 1982).

An examination of the transcript when King was testifying reveals that her statements about who owned the store might not be hearsay. She did not say that another person said that the store was owned by National Services. Her testimony after the recess was no more hearsay than were her statements before it about ownership. Both were based on what someone had told her.

Even if her testimony about ownership was hearsay, we find that it was not prejudicial. The defendant has not carried his burden on this point. See State v. White, 298 N.C. 430, 439, 259 S.E.2d 281, 287 (1979); State v. Sparks, 297 N.C. 314, 333, 255 S.E.2d 373, 385 (1979).

As for the difference in King's answers before and after the recess about the ownership of the store, that conflict is for the jury to resolve. See State v. Mabry, 269 N.C. 293, 296, 152 S.E.2d 112, 114 (1967); State v. Crawford, 29 N.C.App. 117, 119, 223 S.E.2d 534, 535 (1976).

Finally, the defendant argues that the trial judge did not act impartially when he raised the ownership problem in the arrest warrant. He correctly cites G.S. 15A-1222 for the proposition that the trial judge may not express an opinion in the presence of the jury on any question of fact to be decided by the jury. But that provision was not violated here.

The transcript shows that the jury never heard the trial judge's questions about the warrant.

COURT: What is the name of your store?

A. Southland Shirt Outlet.

DEFENDANT'S EXCEPTION NO. 1.

COURT: Who is it owned by?

A. Block Industries.

DEFENDANT'S EXCEPTION NO. 2

COURT: Let me see counsel at the bench one moment.

The jury was then sent to the jury room and a voir dire of King was held. They were not brought back into the courtroom until the voir dire of King and the legal arguments over amendment of the warrant were completed.

A trial judge can properly question a witness to clarify and promote understanding of the testimony. Such questions are prejudicial error only if he expressed an opinion by their tenor, frequency, or persistence. State v. Rinck, 303 N.C. 551, 562, 280 S.E.2d 912, 921 (1981). That did not occur here.

No error.

BECTON and PHILLIPS, JJ., concur.