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North Carolina v. Simmons

Filed: June 1, 1982.

STATE OF NORTH CAROLINA
v.
RICKY J. SIMMONS



Appeal by defendant from Clark, Judge. Judgment entered 7 May 1981 in Superior Court, Cumberland County. Heard in the Court of Appeals 6 April 1982.

Hill, Judge. Judges Hedrick and Becton concur.

Hill

On 12 August 1980, Hooper Hall, the manager of the "patterson Storage Warehouse, which is an agent for Mayflower," discovered that some freezers which were stored in his warehouse were missing. He found broken glass in one of the windows at the back of the warehouse and its screen knocked down. There were footprints around the broken sindow and on some boxes stacked at the window that were similar to the bottoms of defendant's shoes. Hall testified that there were eight freezers missing, all "manufactured by White and maybe had a name brand of Imperial . . ." He said that about a week later one of the freezers was recovered. "[I]t had the general appearance, the same name brand, the same design, that it was white like the rest of ours and it had the name brand 'Imperial' on it and the serial number on the freezer matched the serial number on the list that we inventoried our freezers by."

Arthur Mitchell, Jr., and George H. Lewis, police undercover officers, testified that they met with defendant and another person on 14 August 1980 to arrange to purchase "some freezers that [defendant] had for sale." They discussed the terms of the sale and proceeded to 2230 Delta Drive in Fayetteville, where the freezer was located. Before they arrived at Delta Drive, Mitchell testified that defendant "stated that the freezer had come from a break in that he had participated in on, . . . at the Mayflower Warehouse and that they were for sale." They were unable to pick up the freezer at that time, however. Later that evening, the officers obtained a search warrant for the residence and outbuildings at 2230 Delta Drive and seized a 21 cubic foot freezer, serial number "#W210TSSC-030-138."

Defendant argues that the trial judge erred in denying his motions to dismiss because the evidence was insufficient to show that the seized property was the stolen merchandise and because the proof on that issue fatally varied from the indictment.

When a defendant moves for dismissal in a criminal action, the trial judge must consider the evidence in the light most favorable to the State, take it as true, and give to the State the benefit of every reasonable inference to be drawn therefrom. If there is evidence, direct or circumstantial or both, from which a jury could find that the offense charged had been committed and that defendant committed it, the motion to dismiss should be denied. State v. Green, 295 N.C. 244. 244 S.E.2d 369 (1978); State v. McNeil, 280 N.C. 159, 185 S.E.2d 156 (1971).

Although defendant's conviction cannot be sustained upon a "naked extrajudicial confession."

it is equally well settled that if the State offers into evidence sufficient extrinsic corroborative circumstances as will, when taken in connection with an accused's confession, show that the crime was committed and that the accused was the perpetrator, the case should be submitted to the jury.

State v. Thompson, 287 N.C. 303, 324, 214 S.E.2d 742, 755 (1975), death sentence vacated, 428 U.S. 908, 96 S. Ct. 3215, 49 L. Ed. 2d 1213 (1976). Accord State v. Green, supra.

In the present case, aside from defendant's confession to Mitchell and Lewis, the State presented evidence that a window was

broken at the back of the warehouse and its screen was knocked down. Footprints found around the window and on boxes that were stacked at the window were identified by one of the investigating officers as "closely resembl[ing]" the pattern of defendant's shoes. Further, there is evidence that a freezer from the warehouse was recovered by officers pursuant to undercover contacts with defendant. When coupled with defendant's statement, these "extrinsic corroborative ...


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