State v. Green

• Decision Date: 06 March 1984
• Docket Number: No. 577A83,577A83
• Citation: 312 S.E.2d 434,310 N.C. 466
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Robert Ray GREEN.

Page 434

312 S.E.2d 434

310 N.C. 466

STATE of North Carolina v. Robert Ray GREEN.

No. 577A83.

Supreme Court of North Carolina.

March 6, 1984.

Rufus L. Edmisten, Atty. Gen. by Fred R. Gamin, Asst. Atty. Gen., Raleigh, for the State.

Adam Stein, Appellate Defender by Lorinzo L. Joyner, Asst. Appellate Defender, Raleigh, for defendant-appellee.

BRANCH, Chief Justice.

The sole question presented by this appeal is whether the Court of Appeals erred in holding that the trial judge erroneously denied defendant's motion to dismiss both counts of misdemeanor larceny.

We think it necessary to restate the well-established rules governing the sufficiency of the evidence to carry a case to the jury.

When a defendant in a criminal case moves to dismiss or for judgment as of nonsuit, the trial judge must determine whether there is substantial evidence of each element of the offense charged and whether defendant was the perpetrator of the offense. If there is such evidence, a motion to dismiss must be denied. State v. Roseman, 279 N.C. 573, 184 S.E.2d 289 (1971). If, however, the evidence is sufficient only to raise a suspicion or conjecture as to the commission of the offense or as to the identity of the defendant as the perpetrator of the offense, a motion to dismiss or for judgment as of nonsuit must be allowed. State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967).

In State v. Johnson, 199 N.C. 429, 431, 154 S.E. 730, 731 (1930), Chief Justice Stacy stated the general rule as follows:

[I]f there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury.

The function of the trial judge is to determine as a matter of law whether the evidence permits a reasonable inference of defendant's guilt of the crime charged. State v. Thomas, 296 N.C. 236, 250 S.E.2d 204 (1978). The test is the same whether the evidence is direct, circumstantial or a combination of both. State v. Stephens, 244 N.C. 380, 93 S.E.2d 431 (1956). In ruling upon a motion to dismiss, the trial judge must consider all the evidence admitted, whether competent or incompetent, in the light most favorable to the State and he must give the State every reasonable inference to be drawn from that evidence. Contradictions and discrepancies in the evidence do not require dismissal and such matters are for resolution by the jury. The defendant's evidence, unless favorable to the State, is not to be considered in ruling on the motion. State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982).

Larceny is the wrongful taking and carrying away of the personal property of another without his consent and with the intent to permanently deprive the owner thereof. State v. Booker, 250 N.C. 272, 108 S.E.2d 426 (1959).

General Statute 14-72(a) provides that where the value of the property taken is not more than $400.00, it is a misdemeanor punishable under G.S. 14-3(a). Subsection (b) of the statute, which provides for other circumstances where the larceny is a felony without regard to the value of the property taken, is not applicable to the facts of this case.

We summarize pertinent portions of the State's evidence as follows:

James M. McConnell testified that he worked for the Great Atlantic and Pacific Tea Company, Inc., (hereinafter referred to as A & P) as night manager at its store on Western Boulevard in Raleigh, North Carolina. On the night of 18 April 1982, at approximately 11:30 p.m., he observed defendant at the meat counter "fumbling" with the meat. As McConnell started to the front of the store to call the police, he observed defendant leave the premises. Defendant's shirttail was out and the back of it was "bulged". The witness did not see defendant go through the checkout counter. Neither he nor any other employee of A & P gave defendant permission to take anything from the store.

Mrs. Blanche Steinbeck testified that she was employed by Eckerd Drugs of North Carolina (hereinafter referred to as Eckerd's) at its Holly Park Store in Raleigh, North Carolina, as night cashier. She came to work at midnight on 18 April 1982. Shortly thereafter, she observed defendant standing in front of the store magazine rack reaching toward a shelf where overstocked merchandise such as radios were on display. When defendant saw her looking at him he went to the cosmetics counter. At that time she called the police. About fifteen minutes later defendant, accompanied by a female companion, left the store without going through the checkout counter. It appeared as if he had something in his pockets. Neither Mrs. Steinbeck nor any other person gave defendant permission to take anything from the store.

Patrolman J.G. Moore of the Raleigh Police Department testified that he was on duty during the early morning hours of April 19, 1982, and at about 12:34 a.m., as he was sitting about three hundred feet from...