State v. Perry, 59A81

• Citation: 287 S.E.2d 810,305 N.C. 225
• Decision Date: 03 March 1982
• Docket Number: No. 59A81,59A81
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Ulysees PERRY.

Page 810

287 S.E.2d 810

305 N.C. 225

STATE of North Carolina v. Ulysees PERRY.

No. 59A81.

Supreme Court of North Carolina.

March 3, 1982.

Rufus L. Edmisten, Atty. Gen. by Evelyn M. Coman, Associate Atty. Gen., and Charles M. Hensey, Asst. Atty. Gen., Raleigh, for plaintiff-appellant.

John W. Dees, Goldsboro, for defendant-appellee.

MEYER, Justice.

The State's appeal sets forth two issues: (I) whether the Court of Appeals erred in vacating the felonious larceny conviction and directing entry of a judgment based upon misdemeanor larceny, and (II) whether the Court of Appeals erred in vacating the possession conviction and ordering the charge dismissed because of double jeopardy considerations.

(I)

In support of its contention that the Court of Appeals erred in reducing the felonious larceny conviction to a misdemeanor, the State argues that G.S. § 14-72 will support the interpretation that a defendant can be found guilty of felonious larceny after a breaking or entering without the necessity of a finding either (1) that the defendant personally committed the breaking or entering or that he was an accessory or aider and abetter to the principal who committed the breaking or entering, or (2) that the property stolen had a value of more than $400.00. The thrust of the State's argument is that a defendant can be found guilty of felonious larceny regardless of the value of the goods involved, if his act of larceny occurs pursuant to or after a breaking or entering by anyone and, therefore, the conviction of the defendant here of felonious larceny pursuant to a breaking or entering is neither inconsistent with nor contradictory to his acquittal of breaking or entering charges. We cannot agree.

G.S. § 14-72, as it existed at the time of this offense, provided in pertinent part as follows: ¹

§ 14-72. Larceny of property; receiving stolen goods or possessing stolen goods not exceeding $400.00 in value.--(a) Except as provided in subsections (b) and (c) below, the larceny of property, the receiving of stolen goods knowing them to be stolen or the possessing of stolen goods knowing them to be stolen, of the value of not more than four hundred dollars ($400.00) is a misdemeanor punishable under G.S. 14-3(a). In all cases of doubt, the jury shall, in the verdict, fix the value of the property stolen.

(b) The crime of larceny is a felony, without regard to the value of the property in question, if the larceny is:

(1) From the person; or

(2) Committed pursuant to a violation of G.S. 14-51, 14-53, 14-54 or 14-57; or

....

This statute provides, inter alia, that the larceny of property of the value of not more than $400.00 is a misdemeanor unless the larceny fits into one of the categories enumerated in subsection (b).

The defendant was convicted of felonious larceny under section (b)(2) upon the theory that he stole the heaters pursuant to a breaking or entering in violation of G.S. § 14-54. However, the jury acquitted the defendant of the actual breaking or entering. The trial judge did not submit for jury determination the value of the property stolen.

All of the evidence showed that the three heaters had a value of $75.00 each or an aggregate value of less than $400.00. In vacating the felonious larceny conviction, the Court of Appeals relied on State v. Keeter, 35 N.C.App. 574, 241 S.E.2d 708 (1978), cases cited therein, and State v. Cornell, 51 N.C.App. 108, 275 S.E.2d 857 (1981). The cases cited set forth the rule that it is improper, absent the jury's finding that the property stolen exceeded the diacritical amount set forth in the statute, for the trial judge to accept a verdict of guilty of felonious larceny where the jury has failed to find the defendant guilty of the felonious breaking or entering pursuant to which the larceny occurred.

"Our courts have repeatedly held that where a defendant is tried for breaking or entering and felonious larceny and the jury returns a verdict of not guilty of felonious breaking or entering and guilty of felonious larceny, it is improper for the trial judge to accept the verdict of guilty of felonious larceny unless the jury has been instructed as to its duty to fix the value of the property stolen; the jury having to find that the value of the property taken exceeds $200.00 for the larceny to be felonious."

(Citation omitted.) G.S. 14-72 was amended, effective 1 January 1980, to increase from $200 to $400 the value which stolen property must exceed in order to constitute a felony. 1979 Sess. Laws, ch. 408.

State v. Perry, 52 N.C.App. 48, 52-53, 278 S.E.2d 273, 277.

Although the State urges us to overrule as unsound the prior cases establishing the rule set out above, we decline to do so. We believe that the statute cannot reasonably be interpreted to permit the defendant's conviction of felonious larceny merely because he committed the larceny pursuant to or after a breaking or entering by some stranger. The only case upholding a felonious larceny conviction following the defendant's acquittal of breaking or entering is State v. Curry, 288 N.C. 312, 218 S.E.2d 374 (1975). There, this Court held that on the special facts in that case, a not guilty verdict on the breaking or entering count was not necessarily a finding by the jury that the larceny was not committed by the defendant pursuant to a breaking or entering. The Court reasoned that, given the facts produced at trial, the instructions of the trial judge and the verdicts, the jury in Curry must have found that the defendant aided and abetted two other men in a larceny they committed pursuant to a breaking or entering by them, but did not aid or abet them in the breaking or entering. Thus, the two verdicts were logically reconciled. Here, the State did not contend, nor was any evidence presented which would permit the jury to find, that Perry had aided or abetted another's larceny pursuant to a breaking. We agree with the decision of the Court of Appeals that the case must be remanded to the superior court for vacation of the felonious larceny conviction and for the pronouncement of judgment as upon a verdict of guilty of misdemeanor larceny. ²

(II)

The State next contends that the Court of Appeals erred in vacating the defendant's possession conviction and in ordering that charge dismissed because of double jeopardy considerations. The Court of Appeals in effect held that the defendant's conviction of possession of stolen goods must be vacated because he could not be convicted of both larceny of the property and possession of the same stolen property which was the subject of the larceny. That court reasoned, first, that the Legislature did not intend for there to be two separate and distinct offenses, and second, that double jeopardy considerations preclude conviction of both offenses. We cannot concur in the first reason expressed and, because of our disposition on other grounds, we do not reach the second.

While we believe that the Court of Appeals was correct in its ultimate conclusion that the defendant could not be convicted of both possession of the stolen property and of the larceny of the same property, we do so for reasons different than those expressed in that court's opinion.

We reason first, that larceny and possession of the property stolen in the larceny are separate and distinct offenses and therefore double jeopardy considerations do not prohibit punishment of the same person for both offenses; and second, that although it could have done so, the Legislature, by creation of the statutory offense of possession of stolen property, did not intend to punish an individual for both offenses.

(1)

We find it unnecessary to engage in a lengthy discussion of double jeopardy considerations as did the panel below. The language employed in our North Carolina cases to define the test for double jeopardy is set out in State v. Cameron, 283 N.C. 191, 198, 195 S.E.2d 481, 486 (1973), as follows:

"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 ...."

Our language follows closely the test employed by the United States Supreme Court to determine whether certain activity constitutes two offenses or only one as set out in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932):

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. ³

As pointed out in a recent United States Supreme Court decision, "the question of what punishments are constitutionally permissible is not different from the question of what punishment the Legislative Branch intended to be imposed." Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). Thus, at issue here is whether the Legislature intended the offenses of larceny of property and possession of that property to be separate and distinct offenses. We believe that it did.

The majority of the panel of the Court of Appeals treated the possession incident to the larceny as a punishable offense and held that:

Evidence establishing commission of the...