State v. Lowe

299 S.E.2d 466 (1983)

STATE of North Carolina v. Jerry LOWE, alias Terry Wayne Lowe.

No. 8216SC404.

Court of Appeals of North Carolina.

February 1, 1983.

*468 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. David Roy Blackwell, Raleigh, for the State.

Rogers & Bodenheimer by Hubert N. Rogers, III, Lumberton, for defendant-appellant.

WEBB, Judge.

In his first assignment of error the defendant contends the court expressed an opinion on the evidence by questions put to Mrs. Barbour, the witness. During the trial the following colloquy occurred:

"COURT: Do you have an opinion satisfactory to yourself as to the value of the T.V.? WITNESS: I'm satisfied. COURT: Yes, Ma'am. What is your opinion of its value? WITNESS: It's value? COURT: Yes, Ma'am. WITNESS: Yes, sir. $800. COURT: Does that include the rabbit ears? WITNESS: Yes, sir. * * * * * * COURT: Did you give any one [sic] permission to enter your house on that day? WITNESS: No, sir. * * * * * * COURT: You give anyone permission to break your door or enter your house? COURT: Give anyone permission to take your T.V. set or rabbit ears from your room? WITNESS: No, sir."

Mrs. Barbour's testimony in response to the judge's questions was the only evidence as to the value of the television set.

The defendant argues that by this colloquy the judge commented on the evidence in violation of G.S. 15A-1222. A judge may not by his questions to a witness intimate an opinion as to whether any fact essential to the State's case has been proved. See State v. Hudson, 295 N.C. 427, 245 S.E.2d 686 (1978). A judge may ask questions, however, that elicit testimony which proves an element of the State's case so long as he does not comment on the strength of the evidence or the credibility of the witness. State v. Stanfield, 19 N.C.App. 622, 199 S.E.2d 741 (1973). We believe the questions by Judge Britt were neutral, which, depending upon the answer, would benefit either the State or the defendant.

Although he did not make it a part of the assignment of error, the defendant argues under this assignment of error that at other times the court, by its questions, commented on the evidence. As we read these questions the court did not intimate any opinion as to whether a fact had been proved. They served to clarify the testimony of the witnesses. See State v. Fuller, 48 N.C.App. 418, 268 S.E.2d 879, cert. denied, 301 N.C. 403, 273 S.E.2d 448 (1980). The defendant's first assignment of error is overruled.

*469 In his second assignment of error the defendant argues that his motion to dismiss the charge of larceny should have been allowed. He contends there was not sufficient evidence to submit to the jury the lack of consent on the part of Mrs. Barbour to his taking the set or that he intended to deprive Mrs. Barbour permanently of the television set. He argues that the testimony that Mrs. Barbour did not consent to his taking was improperly admitted and without this testimony there was not sufficient evidence that she did not consent. Assuming this was the only evidence of Mrs. Barbour's lack of consent, we have held it was not error to admit it. If it had been erroneously admitted, the motion to dismiss should not have been allowed. On a motion to dismiss all evidence favorable to the State must be considered whether it is or is not properly admitted. See State v. Shaw, 293 N.C. 616, 239 S.E.2d 439 (1977).

As to the defendant's argument that there was not sufficient evidence that he intended to deprive Mrs. Barbour of the television set permanently, the evidence most favorable to the State is that the defendant was in a group of two or more men who went into Mrs. Barbour's house and removed the television set to the woods behind her house. The defendant fled from the scene when Mrs. Barbour's friends came to her house. We believe the jury could conclude from this evidence the defendant was acting in concert with some persons who took Mrs. Barbour's television set and left it in the woods behind her house. They could conclude from this that the men intended to deprive Mrs. Barbour of the set permanently. In re Ashby, 37 N.C.App. 436, 246 S.E.2d 31 (1978).

The defendant's second assignment of error is overruled.

In his third assignment of error the defendant, relying on State v. Perry, 305 N.C. 225, 287 S.E.2d 810 (1982); State v. Cornell, 51 N.C.App. 108, 275 S.E.2d 857 (1981); and State v. Keeter, 35 N.C.App. 574, 241 S.E.2d 708 (1978), argues that it was error for the court to accept the verdict of guilty of felonious larceny when the court did not instruct the jury to fix the value of the property and the jury did not find the value of the stolen property exceeded $400.00. The cases cited by the defendant hold that if a defendant has been found not guilty of felonious breaking or entering, the court should not accept a verdict of guilty of felonious larceny unless the court has charged the jury that they must find the stolen property was worth more than $400.00 in order to find the defendant guilty of felonious larceny. In this case, the court's charge to the jury has not been made a part of the record. We presume the charge was correct. Elsevier v. Machine Shop, 9 N.C.App. 539, 176 S.E.2d 875 (1970).

We believe that the defendant has misconstrued the requirements of Perry, Cornell, and Keeter so far as requiring the jury to find the value of the property is concerned. G.S. 14-72(a) provides in part:

"... In all cases of doubt, the jury shall, in the verdict, fix the value of the property stolen."

In this case, the only evidence of value was Mrs. Barbour's testimony that in her opinion the television set was worth $800.00. The indictment charged that the value of the property was more than $400.00. It was not necessary for the jury to make a special finding in its verdict that the property was worth more than $400.00. State v. Jeffries, 41 N.C.App. 95, 254 S.E.2d 550 (1979).

The defendant's third assignment of error is overruled.

No error.

HEDRICK and BECTON, JJ., concur.