State v. Austin

330 S.E.2d 661 (1985)

STATE of North Carolina v. Deborah AUSTIN.

No. 845SC970.

Court of Appeals of North Carolina.

June 18, 1985.

*663 Atty. Gen. Rufus L. Edmisten by Charles H. Hobgood, Asst. Atty. Gen., Raleigh for the State.

Appellate Defender Adam Stein by Geoffrey C. Mangum, Asst. Appellate Defender, Raleigh, for defendant-appellant.

PARKER, Judge.

Although defendant was charged in a magistrate's order with misdemeanor larceny, the court instructed the jury in this case on concealment of merchandise. The jury found defendant "[g]uilty as charged," and the court entered judgment of conviction for misdemeanor larceny. This was clearly error as the court instructed the jury on the wrong offense. "Since a correct charge is a fundamental right of every accused ...," State v. Orr, 260 N.C. 177, 181, 132 S.E.2d 334, 337 (1963), the error was so prejudicial that defendant is entitled to a new trial on the charge of misdemeanor larceny.

Defendant contends the court erred by proceeding to trial in her absence. The jury was selected in the defendant's presence, and the trial judge told defendant that her trial would proceed at 9:30 a.m. the next morning. At 9:37 a.m. the judge ordered the trial to proceed in her absence. Defendant did enter the courtroom later that morning, but offered no explanation for her absence. After a trial has commenced, the burden is on the defendant to explain his absence, State v. Stockton, 13 N.C.App. 287, 185 S.E.2d 459 (1971), and an unexplained absence is considered a voluntary waiver of the right to be present at trial. State v. Mulwee, 27 N.C.App. 366, 219 S.E.2d 304 (1975); State v. Stockton, supra. This assignment of error is overruled.

Next, defendant contends she was denied her right to effective assistance of counsel when her court-appointed attorney moved to withdraw in her absence, and because he was otherwise ineffective. Under the standards enunciated by the United States Supreme Court in Strickland v. Washington, ___ U.S. ___, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), a defendant must show that counsel's performance was deficient, and that there is a reasonable probability that, but for counsel's inadequate representation, the result would have been different. Defendant herein has completely failed to carry her burden that a different outcome might have resulted, and, therefore, we need not address whether counsel's performance was deficient. ___ U.S. at ___, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699. The assignment of error is overruled.

In her next assignment of error, defendant contends that the requirements of G.S. 14-72(a) were not met in two regards. First, that the State failed to establish that the value of the stolen property was "more than four hundred dollars," and second, that the jury should have been required to fix the value of the property stolen in their verdict form. We disagree.

Ms. Scearce offered a detailed account of the "approximate" number of different items she observed being stolen and *664 the retail value of each item, and she testified that the approximate total value of the goods taken was $596.00. In State v. Williams, 65 N.C.App. 373, 375, 309 S.E.2d 266, 267 (1983), pet.dis.rev. denied, 310 N.C. 480, 312 S.E.2d 890 (1984), this Court concluded: "We hold ... that where a merchant has determined a retail price of merchandise which he is willing to accept as the worth of the item offered for sale, such a price constitutes evidence of fair market value sufficient to survive a motion to dismiss." Therefore, Scearce's testimony, based on her observations as an employee of the store, was competent to establish the value of the goods stolen.

Defendant argues that because Scearce's testimony concerning the value of the items in 83CRS17818 appears to be mathematically incorrect (the correct total was $123.51, and not $161.00 as she testified), that her testimony is unreliable. This argument is without merit. This inconsistency goes to the witness' credibility but does not make her testimony unreliable. It was for the jury to resolve any lingering questions about the value of the stolen goods.

A jury should fix the value of the stolen property only in cases of doubt concerning value. State v. Jefferies, 41 N.C.App. 95, 254 S.E.2d 550, cert. denied, 297 N.C. 614, 257 S.E.2d 438 (1979). In the instant case, the jury was given a choice of not guilty, guilty of felonious larceny, or guilty of non-felonious larceny. If they were not satisfied beyond a reasonable doubt that the value of the stolen property exceeded $400.00, they could have found defendant guilty of non-felonious larceny. Finding defendant guilty of felonious larceny indicates their belief that the value of the property exceeded $400.00. This assignment of error is overruled.

Next, defendant contends the court erred in finding as a factor in aggravation that defendant had prior convictions punishable by more than sixty days confinement. This assignment of error was not set out in the record on appeal; it may not be considered on appeal. App.R. 10 (c).

In her final assignment of error, defendant asserts the court erred in imposing sentence of six years on the consolidated convictions of misdemeanor larceny and felony larceny in one judgment. We agree. Because there was error in the trial of the misdemeanor larceny charge and it is impossible to tell what portion of the judgment imposed is attributable to that charge, this case must be remanded for a resentencing hearing and entry of appropriate judgment on the felony conviction as well as for a new trial on the misdemeanor charge.

New Trial in 83CRS17818; Remanded for resentencing in 83CRS17819.

WEBB and BECTON, JJ., concur.