State v. Reese

230 S.E.2d 213 (1976)

31 N.C. App. 575

STATE of North Carolina v. Randy Michael REESE.

No. 7628SC529.

Court of Appeals of North Carolina.

December 1, 1976.

*214 Atty. Gen. Rufus L. Edmisten by Associate Atty. Claudette Hardaway, Raleigh, for the State.

Public Defender Peter L. Roda, Asheville, for defendant-appellant.

BRITT, Judge.

By his first assignment of error defendant contends that the trial court erred in its charge to the jury by expressing an opinion in violation of G.S. 1-180. This assignment is without merit.

The record discloses that when the trial judge was instructing the jury on the sixth element of felonious larceny, he instructed as follows: "And, sixth, that the property was worth more than $200, and all the *215 evidence which we have, that's been submitted, indicates that the property was worth some $550, but you must find beyond a reasonable doubt that it was worth more than $200 as an element of this offense."

Defendant argues that in telling the jury that "all the evidence which we have, that's been submitted, indicates that the property was worth some $550" that His Honor expressed an opinion on the evidence. We reject this argument.

Almost immediately after the challenged statement was given, the trial judge gave the following instruction:

"Now, Members of the Jury, the Court has no opinion about the facts in this case or the guilt or innocence of the Defendant. If, in my manner of speaking or by some inflection of my voice or some ruling in this matter, I have conveyed such an impression to you, please dismiss it from your mind because it is a responsibility of yours and yours alone to determine what the facts are in this case and to determine the guilt or innocence of the Defendant."

It is well settled that the charge of the court to the jury will be construed contextually, and segregated portions will not be held prejudicial error where the charge as a whole is free from objection. 4 Strong, N.C. Index 3d, Criminal Law § 168. When the challenged instruction is considered in context, and considered together with the remainder of the charge, we conclude that it was not prejudicial error.

By his second assignment of error defendant contends the trial court erred in failing to submit to the jury possible verdicts of misdemeanor larceny and unauthorized use of an automobile. This assignment is without merit.

As to a possible verdict of misdemeanor larceny, it is well-established that where there is no evidence from which it can be inferred that the value of the stolen property was less than $200, defendant is not entitled to an instruction with respect to larceny of property of a value less than $200. State v. Smith, 6 N.C.App. 580, 170 S.E.2d 523 (1969); State v. Dickerson, 20 N.C.App. 169, 201 S.E.2d 69 (1973). Since all the evidence in the present case indicated that the value of the stolen property exceeded $200, the trial court did not err by failing to instruct as to the lesser included offense of misdemeanor larceny.

Defendant argues that a possible verdict under G.S. 14-72.2, unauthorized use of a conveyance, should have been submitted to the jury. We disagree. The trial court is not required to submit to the jury the question of a defendant's guilt of a lesser degree of the crime charged in the indictment when the State's evidence is positive as to each and every element of the crime charged and there is no conflicting evidence relating to any element of the crime charged. State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972). In this case, defendant was charged with the felonious larceny of an automobile; the evidence presented by the State, aided by the doctrine of recent possession of stolen property, was positive as to each and every element of felonious larceny, and there was no conflicting evidence relating to any element.

Additionally, the necessity for instructing the jury as to a crime of lesser degree than charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. State v. Lampkins, 286 N.C. 497, 212 S.E.2d 106 (1975); State v. Carnes, 279 N.C. 549, 184 S.E.2d 235 (1971). In the present case, there was no evidence that would warrant or support a finding that defendant was guilty of the lesser included offense of unauthorized use of an automobile.

We conclude that defendant received a fair trial free from prejudicial error.

No error.

VAUGHN and MARTIN, JJ., concur.