State v. Harden

257 S.E.2d 635 (1979) 42 N.C. App. 677

STATE of North Carolina
v.
Basil Edward HARDEN, Jr..

No. 796SC366.

Court of Appeals of North Carolina.

September 4, 1979.

Atty. Gen., Rufus L. Edmisten by Associate Atty. Gen., Patricia B. Hodulik, Raleigh, for the State.

Carter W. Jones and Donnie R. Taylor, Ahoskie, for defendant-appellant.

VAUGHN, Judge.

Defendant attempts to assign error in the denial of his motion to dismiss at the close of the State's evidence. Following the denial of the motion, he put on evidence in his own behalf. No motion was made at the conclusion of all the evidence. He, therefore, waived his prior motion and cannot now bring it forward as appealable error. G.S. 15-173; State v. Fikes, 270 N.C. 780, 155 S.E.2d 277 (1967); State v. Rhyne, 39 N.C.App. 319, 250 S.E.2d 102 (1979). Defendant has not asserted, as he could have without exception at trial, that all the evidence was insufficient as a matter of law. G.S. 15A-1446(d)(5); G.S. 15A-1227(d). We have, nevertheless, reviewed the evidence and conclude that it was sufficient to take both the felony breaking and entering and felony larceny to the jury. When considered in the light most favorable to the State, the evidence discloses that defendant had possession and control of his truck the night of the crime. His truck, fully loaded and driven by a white man, was observed on the Grace premises the night of the crime. The morning after the theft, the chemicals were found on the defendant's father's farm near defendant's deer stand. They were hidden in a pine thicket. Tire tracks matching the tires on defendant's truck were found on the Grace lot. Defendant admitted that the tire tracks around the chemicals stashed in the pine thicket were his. Paint chips and staples matching those of the containers of the stolen chemicals were found in the truck. When defendant encountered law officers on the state road near the chemicals and knowing of the break-in, he did not tell the officers of their location. This evidence was sufficient to withstand a motion to dismiss.

Defendant assigns error to the instruction of the jury on the doctrine of possession of recently stolen goods. The doctrine merely permits an inference or presumption of fact after the State proves "beyond a reasonable doubt that (1) the property described in the indictment was stolen; (2) the property shown to have been possessed by the accused was the stolen property, and (3) the possession was recently after the larceny." State v. Fair, 291 N.C. 171, 174, 229 S.E.2d 189, 190 (1976). Defendant argues the evidence of his possession of the stolen chemicals was not strong enough to warrant the charge. The judge must instruct on the evidence as it arises in the case being tried. It is for the jury to decide what weight and what inferences it will draw from that evidence.

While defendant did not own the land upon which the chemicals were found and others had access to the land, other evidence presented in the case required the instruction. Defendant's truck was used in the theft. The chemicals were found on land owned by defendant's father whom he assisted in farming. It was near defendant's home, and he had a deer stand nearby. One set of tracks from defendant's truck circled the stolen chemicals. Less than a day lapsed from the theft to the discovery. The exact quantities and brands were found. The jury could find beyond a reasonable doubt from this evidence that defendant was in possession of the stolen property.

"The sense of the term of possession in this connection is not necessarily limited to custody about the person. It may be of things elsewhere deposited, but under the control of a party. It may be in a storeroom or barn, where the party has the key. In short, it may be in any place where it is manifest it must have been put by the act of the party or with his undoubted concurrence." State v. Johnson, 60 N.C. (Win.) 235, 237 (1864).

We hold the evidence was sufficient to support the charges on the doctrine of possession of recently stolen goods. That evidence was also sufficient to overcome defendant's motion for dismissal. State v. Hales, 32 N.C.App. 729, 233 S.E.2d 601, cert. den., 292 N.C. 732, 235 S.E.2d 782 (1977); State v. Lilly, 25 N.C.App. 453, 213 S.E.2d 418 (1975); State v. Hinton, 20 N.C.App. 210, 200 S.E.2d 836 (1973).

Prior to the close of all the evidence, the prosecutor wrote the following words on a blackboard: "tires, staples, dime, tracks, five to seven farms, seven hundred acres, one quarter of a mile, deep pine thicket, told no one, Milton, paint, mud and motive." These were notes related to the prosecutor's closing argument. They were apparently written the last morning of the trial. Defendant's redirect examination was carried over to this last morning and two other witnesses were called. The trial judge addressed the jury. He determined that six of the jurors had seen the writing on the blackboard. He then instructed the jury not to consider the writing in their deliberations in any way or to draw any inferences from it one way or the other. Defendant moved for a mistrial which the trial judge denied. The motion for mistrial was addressed to the sound discretion of the trial judge. State v. Trivette, 25 N.C.App. 266, 212 S.E.2d 705 (1975). The record of this case indicates no abuse of discretion by the trial judge. The words were nothing more than references to matters already in evidence. We think the trial judge was correct in his decision that the words were "relatively meaningless." Defendant has not met his burden of showing that the possible error adversely affected him. State v. Harris, 23 N.C.App. 77, 208 S.E.2d 266 (1974). We find no prejudice to defendant. See State v. Pridgen, 20 N.C.App. 116, 200 S.E.2d 815 (1973).

Defendant assigns error in the admission of certain exhibits. He alleges unfair surprise in the admission of two photographs of the area where the chemicals were found, a sketch of the staples found in defendant's truck and notes made by an investigating officer on the day in question. Apparently, there was some sort of informal pretrial discussion between the prosecutor and defendant's attorney at which some or all these exhibits were not mentioned or provided to the defense by the State. The assignment of error has no merit in either procedure or substance. Procedurally, defendant made no written request for discovery in compliance with G.S. 15A-902. The statutory scheme which overruled the unavailability at common law of discovery in criminal cases was not followed by defendant. He cannot use its provision now to assert error. Substantively, there was no unfair prejudice or surprise in these exhibits which served to illustrate or corroborate the testimony of witnesses.

As part of the same assignment of error, defendant alleges error in the calling of a surprise witness. This argument has even less merit than defendant's attack on the exhibits. The witness who came forward in the middle of the trial was apparently no more of a surprise to defendant than he was to the State. The prosecutor did not act in bad faith. Defendant was given advance warning and a chance to interview the witness before he was called. In any event, neither the common law nor the criminal discovery statute, G.S. 15A-903, entitles a defendant to a list of State's witnesses. State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977); see also Official Commentary to G.S. 15A-903 and G.S. 15A-910.

On cross-examination of defendant's father, the prosecutor asked:

"And you and your son through Mr. Jones for half of this trial have tried to tell the ladies and gentlemen of this jury that Charlie White back there who slaved for you and worked for you so long, could have taken these chemicals?" (Emphasis added.)

Defendant contends this question referring to a black man before a mixed jury was inflammatory and prejudicial to his case. We do not agree. An objection to the question was immediately sustained by the trial judge. The jury was instructed not to consider the question and the witness was instructed not to answer. There was no other instance of this sort in the whole trial. It is inconceivable that it affected the outcome of the case especially in light of the trial judge's prompt and proper handling of the matter. State v. Martin, 294 N.C. 253, 240 S.E.2d 415 (1978); State v. Self, 280 N.C. 665, 187 S.E.2d 93 (1972).

No error.

HEDRICK and ARNOLD, JJ., concur.