State v. McCullers

335 S.E.2d 348 (1985)

STATE of North Carolina v. Jeffrey Tyrone McCULLERS.

No. 8511SC126.

Court of Appeals of North Carolina.

October 15, 1985.

*349 Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Roy A. Giles, Jr., Raleigh, for the State.

Narron, O'Hale, Whittington & Woodruff by John P. O'Hale, Smithfield, for defendant-appellant.

HEDRICK, Chief Judge.

Defendant first assigns error to the definition of "reasonable doubt" used in the court's charge to the jury. The instruction prepared by defendant was not used, and he now argues that the instruction given to the jury did not conform to his requested instruction and that it erroneously placed upon defendant the burden of establishing the existence of a reasonable doubt. A trial judge is not required to give an instruction exactly as requested, but is merely required to give a correct instruction of the applicable law. State v. Monk, 291 N.C. 37, 54, 229 S.E.2d 163, 174 (1976). The record in the present case reveals that the instruction given to the jury was substantially as requested by defendant, and was in all regards a proper, correct, and true instruction on the meaning of reasonable doubt. This assignment of error is without merit.

Defendant next assigns error to the court's failure to instruct the jury on the lesser included offense of misdemeanor larceny. Defendant contends that the evidence favorable to him established the elements of the offense of misdemeanor larceny, and that the court's failure to charge the jury on this offense was, therefore, prejudicial error. Defendant's claims that the evidence shows 1) "that the larceny took place ... out of the presence of the victim" and 2) "that the larceny itself was not occasioned by the violent acts of the defendant" are wholly unsupported by the evidence. All of the evidence tends to show that the taking of the money was "occasioned by the violent acts of the defendant," namely striking the victim over the head with a soft drink bottle. The evidence also tends to show that when the money was taken from the cash register the victim was crawling toward another section of the store counter. There is absolutely no evidence in the record to support the giving of an instruction on misdemeanor larceny. This assignment of error is without merit.

Defendant next argues that "the trial court erred in failing to summarize evidence favorable to the defendant during the court's charge to the jury." In his brief defendant relies heavily upon State v. Sanders, 298 N.C. 512, 259 S.E.2d 258 (1979), cert. denied, 454 U.S. 973, 102 S. Ct. 523, 70 L. Ed. 2d 392 (1981), to support his contention that evidence favorable to a defendant must be summarized if the court *350 summarized the State's evidence. Defendant fails to note, however, that our Supreme Court has held that "while a trial judge must summarize evidence favorable to defendant which is brought out on cross-examination, there is no requirement that this be done when the evidence goes not to the establishment of a substantive defense but rather is of an impeaching quality and effect." State v. McDowell, 301 N.C. 279, 292, 271 S.E.2d 286, 295 (1980).

In the present case all of the evidence which defendant contends should have been summarized tends to impeach the State's witnesses. As such it was not error for the trial court to refuse to summarize it during the charge to the jury. This assignment of error is without merit.

Defendant's final assignment of error alleges two violations of the Fair Sentencing Act, G.S. 15A-1340.4. Defendant first contends that his two convictions for uttering forged paper could not be used to aggravate the sentences given in the present case. Because these convictions were obtained in December 1983, more than one month after the incident at Mr. Jernigan's store, defendant claims that they are not "prior convictions" under G.S. 15A-1340.4. This argument is totally baseless. The statute contains no language to support defendant's argument that the legislature intended to define "prior conviction" as a conviction obtained before a later offense was committed. We believe that a fair reading of the statute defines "prior conviction" as one that is obtained before the defendant is sentenced for another offense. Since the record clearly shows that defendant had two prior convictions for uttering forged papers, those convictions were properly used to support the aggravating factor found by the trial judge.

Defendant also contends that it was error for the trial court to consider the same factors in aggravation of both sentences. No appellate court in this State has ever held that the same factor may not be used to aggravate more than one conviction, and we decline defendant's invitation to adopt such a principle. This assignment of error is without merit.

No error.

BECTON and PARKER, JJ., concur.