State v. Hall

291 S.E.2d 873 (1982)

STATE of North Carolina v. Steve Edward HALL.

No. 8126SC1072.

Court of Appeals of North Carolina.

June 1, 1982.

*875 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Wilson Hayman, Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Marc D. Towler, Raleigh, for defendant-appellant.

ARNOLD, Judge.

Defendant first argues that the trial judge erred in refusing to submit to the jury his requested instruction that he would not be guilty of larceny if he believed the property had been abandoned. Defendant is correct that property which has been abandoned by the owner cannot be the subject of larceny. See, State v. Hathaway, 150 N.C. 798, 63 S.E. 892 (1909). The owner of personal property may relinquish his ownership by abandoning the property and thereafter title passes to the first person who next takes possession. The party relying on the defense of abandonment must affirmatively show by clear, unequivocal and decisive evidence the intent of the owner to permanently terminate his ownership of the disputed property. State v. West, 293 N.C. 18, 235 S.E.2d 150 (1977).

We do not believe the evidence presented in this record would support an instruction on abandoned property. A mere eight days after defendant saw the building in question damaged by fire, he was found carrying away personal property from that building which had been boarded up and posted. The mere fact that defendant observed other people in the building after the fire, along with contradictory evidence of the physical condition of the personal property, is not enough to create a basis for the legitimate belief that the property had been abandoned. Where specific instructions requested are not supported by the evidence, the trial judge does not error in failing to give such instructions verbatim or in substance. State v. Parrish, 2 N.C.App. 587, 163 S.E.2d 523 (1968), rev'd on other grounds, 275 N.C. 69, 165 S.E.2d 230 (1969).

Defendant next contends the trial judge erred in refusing to permit him to further question James Kaperonis after cross-examination by voir dire with respect to the insurance that he had on the building and its contents in an effort to determine whether he was fully compensated for the contents, and to determine whether the contents of the building had any remaining value after the fire. Although other grounds for error in the court's ruling are brought forward in appellant's brief, since these were not advanced during the trial to be ruled upon by the trial judge, we do not reach these arguments for decision on appeal. State v. Wilson, 237 N.C. 746, 75 S.E.2d 924 (1953).

We find no reversible error in the court's ruling on the ground which was offered at trial. Defendant is correct that the better practice is for the trial judge to allow counsel to make an offer of proof when requested. State v. Stanfield, 292 N.C. 357, 233 S.E.2d 574 (1977). However, *876 where the evidence is immaterial or substantially appears elsewhere in the record, there is no prejudicial error. State v. Chapman, 294 N.C. 407, 241 S.E.2d 667 (1978). The "market value" of a stolen item is the criterion used to determine the worth of personal property which was the subject of a larceny. State v. Dees, 14 N.C.App. 110, 187 S.E.2d 433 (1972). Here, Mr. Kaperonis testified that the stainless steel trays found in defendant's possession had a value of $30 to $60 each. Also defendant himself introduced into evidence his former statement to the police that he had taken the pots and pans in order to sell them for scrap metal at an aluminum plant. The extent of fire insurance obtained prior to the fire was immaterial to the issue of whether the property had any value. Furthermore, this issue was substantially answered elsewhere in the evidence. We find no error in the trial judge's ruling.

Defendant argues that the court erred in denying his motion to dismiss where the evidence of ownership was at variance from the allegation of ownership in the charging warrant. We do not agree. In pertinent part, the warrant read as follows:

And on or about the 27th day of OCTOBER, 1980, in the county named above, the defendant named above after having unlawfully, willfully, and feloniously broken into and entered a building occupied by THE CABARET, PRIVATELY OWNED BY JAMES P. KAPERONIS used as PLACE OF BUSINESS located at 3519 WILKINSON BLVD., CHARLOTTE, N.C. with the intent to commit the felony of larceny, did unlawfully, willfully, and feloniously steal, take and carry away STAINLESS STEEL POTS AND PANS (KITCHEN UTENSILS) the personal property of THE CABARET having a value of $200.00 dollars in violation of G.S. 14-72.

We find no fatal variance. At trial, James Kaperonis testified that he was the owner of the building called the Cabaret Club and the property inside of that building. Since the warrant states in the same sentence that the stolen goods were "the personal property of THE CABARET" and that the Cabaret was "PRIVATELY OWNED BY JAMES P. KAPERONIS [and] used as a PLACE OF BUSINESS located at 3519 WILKINSON BLVD., CHARLOTTE, N.C.," we cannot see how defendant was misled as to the ownership of the property in question or in any way hampered in his defense. State v. Greene, 289 N.C. 578, 223 S.E.2d 365 (1976).

Similarly, we also find no merit in defendant's argument that the warrant was defective because it did not allege ownership in a natural person or a legal entity capable of owning property. The warrant refers to the owner of the stolen property as "the Cabaret" which was described as "privately owned by James P. Kaperonis," obviously alleging a proprietorship capable of owning property. We find no error.

No error.

CLARK and WEBB, JJ., concur.