State v. Froneberger, 8527SC1148
| Citation | 81 N.C.App. 398, 344 S.E.2d 344 |
| Case Date | June 17, 1986 |
| Court | Court of Appeal of North Carolina (US) |
Page 344
v.
John Daniel FRONEBERGER.
Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. John R. Corne, Raleigh, for State.
Acting Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender Geoffrey C. Mangum, Raleigh, for defendant-appellant.
Page 346
WHICHARD, Judge.
Evidence for the State tended to show that during 1984 defendant lived with his mother, Virginia Froneberger Hartman. On 14, 15, 17 and 20 December 1984 defendant pawned numerous items of silver that belonged to Mrs. Hartman. Each lot of silver pawned had a value in excess of four hundred dollars. Mrs. Hartman was out of town and was not aware that her silver was missing until 21 December 1984 when Detective Bergin of the Lincolnton Police Department phoned her at her daughter's house and advised that silverware apparently belonging to her had been pawned under defendant's name.
On 15 January 1985 Bergin arrested defendant at his home. After Bergin informed defendant of the charges against him, defendant inquired, "Well, don't you want to know where the silver is?" Bergin responded, "No." Later defendant told Bergin, "I know this can be used against me, but I'm going to say it, anyway. I took the silver, and I sold it because I needed the money to file suits with."
At trial Mrs. Hartman identified certain items of silver as belonging to her. Before the State could move for admission of the items, the following dialogue, to which defendant objects, occurred:
THE COURT: That's sufficient Mrs. Hartman. Thank you. The court would, the court would not exact any more sufficient testimony concerning these contents than has been developed. [81 N.C.App. 400] Are you offering S-1 and the contents at this time, Mrs. Byers?
Assistant Attorney General Byers: They're identified, yes sir. I would like to offer them at this time.
Defendant contends that in this comment the court violated N.C.Gen.Stat. 15A-1222 by expressing the opinion that Mrs. Hartman's identification of the items of silver was accurate. We find no error.
"[A]ny intimation or expression of opinion by the trial judge ... which prejudices the jury against the accused is ground for a new trial." State v. Faircloth, 297 N.C. 388, 392, 255 S.E.2d 366, 369 (1979). The defendant carries the burden of showing prejudice. Id. "[T]he test of prejudice resulting from a judge's remarks is whether a juror might reasonably infer that the judge expressed partiality or intimated an opinion as to a witness' credibility or as to any fact to be determined by the jury." State v. Staley, 292 N.C. 160, 165, 232 S.E.2d 680, 684 (1977).
Rather than expressing an opinion regarding the veracity of Mrs. Hartman's testimony, the court here was simply indicating that her identification of the items was at that point legally sufficient to support their admission into evidence. We do not believe a juror might reasonably infer that the court was expressing partiality or intimating an opinion as to the witness' credibility or as to any other fact to be determined by the jury. Staley, supra.
At most the comment constituted harmless error. N.C.Gen.Stat. 15A-1443(a). Cf. Staley, 292 N.C. at 169, 232 S.E.2d at 686 (while "[n]ot intending to abrogate the harmless error doctrine," court nevertheless refused to find expression of opinion non-prejudicial despite substantial evidence pointing to defendant's guilt). Assuming, arguendo, that a reasonable juror might infer from the comment that the court was expressing its opinion that Mrs. Hartman's identification of the silver was accurate, there was no evidence from which the jury could have concluded otherwise. Mrs. Hartman's testimony as to her ownership of the silver was clear, competent and credible. Many pieces bore her initials or the initials of deceased members of her family. At no point was her credibility on this or any other matter put at issue. Accordingly, we reject defendant's contention that the court's comment [81 N.C.App. 401] constituted an expression of opinion which so prejudiced the jury against him as to require a new trial.
Defendant contends the court erred in failing to dismiss three of the four charges of felonious larceny because the State offered no evidence tending to establish that he stole the silver on four separate occasions. We are constrained to agree.
Page 347
A single larceny offense is committed when, as part of one continuous act or transaction, a perpetrator steals several items at the same time and place. 50 Am.Jur.2d Larceny Sec. 3 at p. 154. See State v. Martin, 82 N.C. 672 (1880); State v. Simons, 70 N.C. 336 (1874); Annot., 136 A.L.R. 948. In such instances the constitutional guarantee against double jeopardy prohibits multiple convictions. See State v. Beaty, 306 N.C. 491, 293 S.E.2d 760 (1982); State v. Martin, 47 N.C.App. 223, 267 S.E.2d 35, disc. rev. denied, 301 N.C. 238, 283 S.E.2d 134 (1980); State v. Fambrough, 28 N.C.App. 214, 220 S.E.2d 370 (1975). Thus, absent evidence that the silver was stolen on more than one occasion, defendant could only be convicted of one count of larceny.
In ruling on a motion to dismiss the court must view the evidence in the light most favorable to the...
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State v. Jaynes, 194A92
...items at the same time and place.' " State v. Adams, 331 N.C. 317, 333, 416 S.E.2d 380, 389 (1992) (quoting State v. Froneberger, 81 N.C.App. 398, 401, 344 S.E.2d 344, 347 (1986)). The opinion of the majority in White explained that although larceny is a lesser-included offense of robbery w......
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State v. Anderson, 2 CA-CR 2015-0144-PR
...such loss or damage would directly relate to or "aris[e] out of" the larceny for which defendant was convicted.State v. Froneberger, 344 S.E.2d 344, 348 (N.C. Ct. App. 1986) (alteration in Froneberger); see also Merrill, 136 Ariz. at 302-03, 665 P.2d at 1024-25 (likening broad inclusion of ......
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State v. Adams, 25A91
...as part of one continuous act or transaction, a perpetrator steals several items at the same time and place." State v. Froneberger, 81 N.C.App. 398, 401, 344 S.E.2d 344, 347 (1986); see also State v. Martin, 82 N.C. 672, 674 (1880). In the case at bar, the Adams brothers stole the satellite......
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State Carolina v. Billinger, COA10–1412.
...imprisonment for debt.’ ” State v. Valladares, 182 N.C.App. 525, 526, 642 S.E.2d 489, 491 (2007) (quoting State v. Froneberger, 81 N.C.App. 398, 404, 344 S.E.2d 344, 348 (1986)); [714 S.E.2d 208] N.C. Gen.Stat. § 15A–1343(d) (2009). In its brief, the State concedes that “the restitution ord......
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State v. Jaynes, 194A92
...items at the same time and place.' " State v. Adams, 331 N.C. 317, 333, 416 S.E.2d 380, 389 (1992) (quoting State v. Froneberger, 81 N.C.App. 398, 401, 344 S.E.2d 344, 347 (1986)). The opinion of the majority in White explained that although larceny is a lesser-included offense of robbery w......
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State v. Anderson, 2 CA-CR 2015-0144-PR
...such loss or damage would directly relate to or "aris[e] out of" the larceny for which defendant was convicted.State v. Froneberger, 344 S.E.2d 344, 348 (N.C. Ct. App. 1986) (alteration in Froneberger); see also Merrill, 136 Ariz. at 302-03, 665 P.2d at 1024-25 (likening broad inclusion of ......
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State Carolina v. Billinger, COA10–1412.
...imprisonment for debt.’ ” State v. Valladares, 182 N.C.App. 525, 526, 642 S.E.2d 489, 491 (2007) (quoting State v. Froneberger, 81 N.C.App. 398, 404, 344 S.E.2d 344, 348 (1986)); [714 S.E.2d 208] N.C. Gen.Stat. § 15A–1343(d) (2009). In its brief, the State concedes that “the restitution ord......
-
State v. Adams, 25A91
...as part of one continuous act or transaction, a perpetrator steals several items at the same time and place." State v. Froneberger, 81 N.C.App. 398, 401, 344 S.E.2d 344, 347 (1986); see also State v. Martin, 82 N.C. 672, 674 (1880). In the case at bar, the Adams brothers stole the satellite......