State v. Malloy

HEDRICK, Judge.

Defendant’s first Assignment of Error is set out in the record as follows: “The indictment fails to state that the personal property allegedly possessed by the defendant was stolen, an essential element of the offense ‘possession of stolen goods’ as required by G.S. 15A-924(a)(5).” We note the sufficiency of the bill of indictment was not challenged in the trial court. Defendant purports to base his first Assignment of Error on an exception noted in the record to the bill of indictment. Such an exception does not challenge the sufficiency of the bill. However, we treat the Assignment of Error, and defendant’s argument in his brief in support thereof, as a motion for appropriate relief on the grounds that the bill of indictment is fatally defective because it fails to allege that the property allegedly possessed by the defendant was “stolen property,” an essential element of the offense described in G.S. § 14-71.1. The statute provides in pertinent part:

If any person shall possess any chattel, property, money, valuable security or other thing whatsoever, the stealing or taking whereof amounts to larceny or a felony, either at common law or by virtue of any statute made or hereafter to be made, such person knowing or having reasonable grounds to believe the same to have been feloniously stolen or taken, he shall be guilty of a criminal offense. . . .

In this case the bill of indictment follows the language of the statute. The language in the bill . . asserts facts supporting every element of a criminal offense and the defendant’s commission thereof with sufficient precision clearly to apprise the defendant ... of the conduct which is the subject of the accusation.” G.S. § 15A-924(a)(5).

If the bill is fatally defective, the statute is also invalid. We are not prepared to declare G.S. § 14-71.1 fatally defective. The Motion for Appropriate Relief is denied.

Next defendant assigns error to the denial of his motions for judgment as of nonsuit, and to set aside the verdict. In his brief, defendant argues that the evidence was not sufficient on the element of “possession.” We disagree.

The State’s evidence tends to show that Todd’s Gun Shop was burglarized on the 23rd or 24th day of September, 1980. All of the guns were taken and no one had been authorized by the owner of the gun shop to enter his business after closing on 23 September 1980. On 25 September 1980 an undercover law enforcement agent purchased weapons identified in the indictment from the defendant. The agent paid the defendant $125.00 after inspecting the weapons in the presence of an unidentified individual, but in close physical proximity to the defendant. Further, prior to handing payment to the defendant, the agent received confirmation from the defendant that the purchase price of the weapons was $125.00. This is apparent from the following excerpt of the agent’s testimony:

I went up to Eddie [the defendant] and said ‘A hundred and twenty-five dollars right?’ and he said, ‘yeah.’ I took the hundred and twenty-five dollars out of my pocket and gave it to him.

In view of the above, we hold that there is substantial evidence in this record as to each element of the offense charged in the bill of indictment. From the evidence in the record, the jury could find that the two guns described in the bill of indictment were stolen, that the defendant was in possession of the guns, and that the defendant knew or had reasonable grounds to believe that the guns were stolen. The Assignment of Error is not sustained.

Next, the defendant contends the trial court erred to his prejudice by not sustaining his objection to the following question addressed to the undercover officer who purchased the guns from the defendant:

Q. What was your reason for coming to Wilmington the 24th of September, 1980?

Mr. Fullwood: Objection.

The witness responded as follows:

A. For the purpose of making undercover purchases of firearms from Eddie Malloy.

“Motion to strike must be made immediately after the testimony objected to is given, in order to preserve an exception to the admission of the evidence, and where the answer is not responsive, a motion to strike is necessary.” 12 N.C. Index 3d, Trial § 15.4 (1978).

The defendant did not move to strike the evidence challenged by this exception. In our opinion, a motion to strike the answer was necessary to preserve an exception to the evidence under the circumstances of this case. Assuming arguendo that the evidence challenged by this Assignment of Error was irrelevant, we do not perceive how the defendant could have been prejudiced by its admission since the officer later testified that he in fact did purchase the two weapons described in the indictment from the defendant. The Assignment of Error is not sustained.

Finally, defendant contends the trial court erred in denying his Motion for Appropriate Relief made pursuant to G.S. § 15A-1414(b)(4). The trial court entered an order that the defendant pay restitution to the victim, Charles Todd, in the amount of $1500 “as a condition of attaining work release privilege or parole. . . .” The defendant argues there was no evidence introduced at trial or at the sentencing hearing which supported the order that he pay restitution in the amount of $1500. We disagree.

It is well settled that the trial court has discretionary authority to recommend restitution as a condition of obtaining parole. Further, any order or recommendation of the trial court for restitution must be supported by the evidence. G.S. § 15A-1343(d); State v. Killian, 37 N.C. App. 234, 245 S.E. 2d 812 (1978). In the present case, the evidence tended to show that a gun shop owned by Charles Todd was burglarized, resulting in major structural damage; that eight guns worth about three thousand dollars were stolen; that knives and other merchandise were stolen; and that the shop was ransacked. In view of these factors, the trial court’s order that the defendant pay restitution in the amount of $1500 as a condition of obtaining work release or parole is supported by ample evidence. The defendant had a fair trial free from prejudicial error.

No error.

Judge Webb concurs. Judge BECTON dissents.