State v. Williams

309 S.E.2d 266 (1983)

STATE of North Carolina v. Manuel WILLIAMS.

No. 8310SC267.

Court of Appeals of North Carolina.

December 6, 1983.

*267 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Thomas J. Ziko, Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender James H. Gold, Raleigh, for defendant.

WELLS, Judge.

In his first assignment of error, defendant argues that the indictment charging defendant with felonious possession of stolen goods fails to state that the goods were stolen and is thus fatally defective. This same argument was considered and rejected by this court in State v. Malloy, 60 N.C.App. 218, 298 S.E.2d 735, rev'd on other grounds, 309 N.C. 176, 305 S.E.2d 718 (1983). Defendant's assignment of error is overruled.

Defendant next argues that the trial judge erred in instructing the jury that the state's evidence tended to show that the suitcase and coats had a total value of $814.98. To support a charge of felonious possession of stolen property, the state must prove the items taken had a value of more than $400.00. G.S. § 14-72. The only evidence of the value of the goods taken in the case before us was the testimony of a Sears employee that the total selling price of the coats was $814.98. The witness testified that he was unsure how much Sears actually paid for the coats, and estimated that there had been about a thirty-five percent markup on the coats.

Defendant argues that "value" for purposes of G.S. § 14-72 means "fair market value" and not "selling price" as testified to by the Sears employee. Defendant cites State v. Rick, 54 N.C.App. 104, 282 S.E.2d 497 (1981) and State v. Haney, 28 N.C.App. 222, 220 S.E.2d 371 (1975) in support of his argument. Rick and Haney are distinguishable from the case before us. In both of those cases, the victim of the larceny was a private consumer, who estimated the value of the item taken in terms of the amount of money for which he or she would have been willing to sell the item. The court in both of those cases held that "selling price" was not competent evidence of "value" for purposes of G.S. § 14-72. We hold, however, 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. See State v. Perry, 305 N.C. 225, 287 S.E.2d 810 (1982), State v. Boone, 39 N.C.App. 218, 249 S.E.2d 817 (1978), modified on other grounds, 297 N.C. 652, 256 S.E.2d 683 (1979), where price tags on retail consumer merchandise were admitted as evidence of the value of a stolen item.

In defendant's third assignment of error, he contends that the trial judge erred in failing to instruct the jury that defendant could not be convicted both of larceny of the coats and of possession of the same coats. While a defendant may be indicted and tried both for larceny and possession of the same stolen goods, he may not be convicted of both offenses, State v. Perry, supra. Even without a request from a defendant, a trial judge should instruct the jury that it may convict the defendant of either but not both charges. While it is clear that the trial judge in this case erred in refusing to so instruct the jury, in the case before us, the jury cured the trial judge's error by convicting defendant of *268 only the possession charge. Defendant's assignment of error is overruled.

Finally, defendant argues that the trial judge erred in considering defendant's prior convictions as a factor in aggravation during the sentencing phase of the trial. Defendant argues that where the state relies on prior convictions as a factor in aggravation for sentencing purposes, the burden is on the state to show either (1) defendant was not indigent at the time of the convictions or (2) if indigent, defendant was represented by counsel. This argument has been rejected by our supreme court in State v. Thompson, 309 N.C. 421, 307 S.E.2d 156 (1983), where the court held that, the burden is on the defendant to show to the trial court that his prior conviction may not be considered for the reasons defendant relies on. This assignment is overruled.

No error.

VAUGHN, C.J., and JOHNSON, J., concur.