State v. Andrews

• Decision Date: 19 May 1981
• Docket Number: No. 8010SC1107,8010SC1107
• Citation: 52 N.C.App. 26,277 S.E.2d 857
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Merrill Lane ANDREWS.

Page 857

277 S.E.2d 857

52 N.C.App. 26

STATE of North Carolina v. Merrill Lane ANDREWS.

No. 8010SC1107.

Court of Appeals of North Carolina.

May 19, 1981.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Thomas F. Moffitt, Raleigh, for the State.

Dean & Dean by Joseph W. Dean and Christine Witcover Dean, Raleigh, for defendant-appellant.

HARRY C. MARTIN, Judge.

Defendant urges prejudicial error was committed in four respects in his trial. We discuss them separately.

First, defendant contends the court erred in denying his motion to suppress as evidence the bag and its contents. He insists there was no probable cause for his arrest or for the seizure of the evidence and that the court found facts unsupported by the evidence and considered incompetent evidence. We hold there is ample evidence in the record to support the court's finding that the officers had probable cause to arrest defendant and Rudd for the commission of a felony. Without repeating the evidence, it shows the officers had a tip from a reliable informant that defendant and Rudd were on their way to commit a burglary. They followed and observed defendant and Rudd in the area where burglaries had occurred, watched defendant's car unattended on the street, and saw Rudd approach the car carrying the bag and enter the car. They followed the car to the stoplight, stopped it, and apprehended defendant and Rudd. Where an informant is reliable, probable cause may be based upon information given to police by such informant. State v. Roberts, 276 N.C. 98, 171 S.E.2d 440 (1970); State v. Wooten, 34 N.C.App. 85, 237 S.E.2d 301 (1977). The evidence would warrant a reasonably prudent person in believing that the felony of burglary had been committed by defendant and Rudd. State v. Mathis, 295 N.C. 623, 247 S.E.2d 919 (1978); State v. Shore, 285 N.C. 328, 204 S.E.2d 682 (1974); N.C.Gen.Stat. 15A-401(b)(2)a. The arrest being lawful, a reasonable search incident thereto is lawful. State v. Jackson, 280 N.C. 122, 185 S.E.2d 202 (1971).

Probable cause to search a vehicle means a reasonable ground or belief supported by circumstances sufficient to lead a person of prudence and caution to believe that defendant's car contained contraband or evidence of the commission of a crime. State v. Phifer, 297 N.C. 216, 254 S.E.2d 586 (1979). It is not required to have proof beyond a reasonable doubt or even prima facie evidence of guilt; it is enough if the evidence would actuate a reasonable man acting in good faith. Id. The evidence here supports a conclusion that the officers had a reasonable basis for searching defendant's vehicle.

Additionally, the stolen property was first seen in the car within the meaning of the plain view doctrine. The officers had the right to be where they were in arresting defendant and Rudd. The discovery of the silver was inadvertent, as it was not seen until one officer reached into the car to prevent it from rolling and again when the other officer took Rudd out of the car in arresting him. Being recognized as silver, the property was immediately apparent as evidence of criminal activity under these circumstances, and it was in open, plain view. State v. Wynn, 45 N.C.App. 267, 262 S.E.2d 689 (1980); State v. Prevette, 43 N.C.App. 450, 259 S.E.2d 595 (1979), disc. rev. denied, 299 N.C. 124, cert. denied, 447 U.S. 906, 100 S.Ct. 2988, 64 L.Ed.2d 855 (1980). Although the officers knew the bag was in the car, they did not know that it contained evidence of a crime until they saw some of its contents by chance, or fortuitously. Id.

The flashlights produced pursuant to an inventory search made in accordance with standard police procedures were competent as evidence and not prejudicial to defendant. See State v. Phifer, supra; State v. Vernon, 45 N.C.App. 486, 263 S.E.2d 340 (1980).

We also find the findings of fact by the court in the order denying the motion to suppress are supported by substantial competent evidence. Defendant complains that the trial judge was biased because he asked questions of the witnesses on the voir dire hearing. We do not find the judge assuming the role of prosecutor here. The questions were of a clarifying nature. State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968), cert. denied, 393 U.S. 1087, 89 S.Ct. 876, 21 L.Ed.2d 780 (1969). The evidence of defendant's modus operandi was admissible. State v. McClain, 282 N.C. 357, 193 S.E.2d 108 (1972). The assignment of error to the denial of defendant's motion to suppress is overruled.

The denial of his motion to dismiss constitutes defendant's next assignment of error. This assignment lacks merit. On such motion, the evidence must be considered in the light most favorable to the state, and all discrepancies or contradictions are resolved in favor of the state. The state is entitled to all reasonable inferences arising from the evidence. State v. Witherspoon, 293 N.C. 321, 237 S.E.2d 822 (1977). There must be substantial evidence of every element of the offense charged. See State v. Agnew, 294 N.C. 382, 241 S.E.2d 684, cert. denied, 439 U.S. 830, 99 S.Ct. 107, 58 L.Ed.2d 124 (1978). On the burglary charge, the state was required to produce evidence that defendant, either alone or acting together in concert with Rudd, broke or entered a dwelling house in the nighttime without the owner's consent and did so with the intent to commit the felony of larceny therein. State v. Jolly, 297 N.C. 121, 254 S.E.2d 1 (1979); N.C.Gen.Stat. 14-51. The evidence shows that defendant and Rudd, acting in concert, broke into the dwelling house of John Braman, entered with the intent to steal, and did steal items of silver belonging to Braman. No consent was given to defendant, and the events occurred in the nighttime, about 8:00 p. m., on 19 March 1980. Defendant and Rudd were soon arrested a short distance from the place of the burglary with the purloined property.

Likewise, there is ample evidence to submit the state's case to the jury on the charges of felonious larceny, possession of burglary tools, and possession of stolen property. The assignment of error is overruled.

Next, defendant asserts it was error to punish him on the separate charges of felonious larceny and felonious possession of stolen property where both offenses arose out of the same fact situation. This raises the question of double jeopardy (multiple punishment for the same offense) under the federal and state constitutions. Defendant's contention is that it is necessary to possess the property being stolen in order to commit larceny and that larceny of property and the subsequent possession of it constitute a single criminal offense and permit only a single punishment.

The law concerning double jeopardy and the principles to be applied in determining whether this constitutional safeguard has been violated are succinctly set forth in State v. Cameron, 283 N.C. 191, 195 S.E.2d 481 (1973), and require no extensive repetition here. There, the Court held that the basic rule in North Carolina is:

"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...."

Id. at 198, 195 S.E.2d at 486.

Analogous arguments to defendant's have been made in cases of distribution or sale of controlled substances and possession of the same substances. The argument is that possession is a lesser included offense of sale or distribution because one must have possession, actual or constructive, in order to sell or distribute the substance. The Supreme Court rejected the argument in State v. Cameron, supra, holding that possession was a continuing offense, occurring not only at the time of sale but prior thereto, and thereafter, until defendant divests himself of the substance. See also State v. Lewis, 32 N.C.App. 298, 231 S.E.2d 693 (1977). In so doing, the Court stated:

"Two things will help us in our thinking: we are not dealing with common law crimes but with statutory offenses; and not with a single act with two criminal labels but with component transactions violative of distinct statutory provisions denouncing them as crimes. Neither in fact nor law are they the same. State v. Midgett, 214 N.C. 107, 198 S.E. 613. They are not related as different degrees or major and minor parts of the same crime and the doctrine of merger does not apply. The incidental fact that possession goes with the transportation is not significant in law as defeating the legislative right to ban both or either. When the distinction between the offenses is considered in the light of their purpose, vastly different social implications are involved and the impact of the crime of greater magnitude on the attempted suppression of the liquor traffic is sufficient to preserve the legislative distinction and intent in denouncing each as a separate punishable offense."

283 N.C. at 199-200, 195 S.E.2d at 486-87.

The unlawful sale of a narcotic drug is a specific act and a given sale occurs only at one specific time. Unlawful possession, however, is a continuing violation of the law. It begins as soon as an individual first unlawfully obtains possession of the drug, whatever the purpose of that possession might be, and does not end until he divests himself of it. In this case defendant was violating the law in that he was possessing...