STATE of North Carolina
v.
W.C. EDWARDS
No. 400A83.
Supreme Court of North Carolina.
January 10, 1984.*612 Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. M. Ann Reed, Raleigh, for the State.
Asst. Appellate Defender Lorinzo L. Joyner, Raleigh, for defendant.
COPELAND, Justice.
The issue presented is whether defendant's reprosecution for felonious breaking or entering with intent to commit larceny is barred by his earlier acquittal of the charge of larceny.
Defendant does not contend that he is barred from prosecution because he is being placed in jeopardy for the same offense. Rather, defendant contends that his acquittal on the larceny charge in the first trial determined matters of fact in his favor so *613 as to collaterally estop the State from now proving him guilty of breaking or entering with the intent to commit larceny.
The doctrine of collateral estoppel was held to be a part of the constitutional guarantee against double jeopardy in Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970). Under the doctrine of collateral estoppel, an issue of ultimate fact, once determined by a valid and final judgment, cannot again be litigated between the same parties in any future lawsuit. Subsequent prosecution is barred only if the jury could not rationally have based its verdict on an issue other than the one the defendant seeks to foreclose. United States v. Smith, 470 F.2d 1299 (5th Cir.1973), cert, den., 411 U.S. 952, 93 S. Ct. 1929, 36 L. Ed. 2d 415. When a "fact is not necessarily determined in the former trial, the possibility that it may have been does not prevent re-examination of that issue." Adams v. United States, 287 F.2d 701, 705 (5th Cir. 1961). See United States v. Ballard, 586 F.2d 1060 (5th Cir.1978); Johnson v. Estelle, 506 F.2d 347 (5th Cir.1975), cert, den., 422 U.S. 1024, 95 S. Ct. 2619, 45 L. Ed. 2d 682; United States v. Griggs, 498 F. Supp. 277 (M.D.Fla.1980). Thus, in determining whether this aspect of double jeopardy acts to bar a subsequent prosecution, "unrealistic and artificial speculation about some far-fetched theory upon which the jury might have based its verdict of acquittal" is foreclosed; rather, a realistic inquiry is required into how a rational jury would consider the evidence presented in a particular case. United States v. Sousley, 453 F. Supp. 754, 762 (W.D.Mo.1978). In advancing a collateral estoppel double jeopardy defense, the defendant has the burden of persuasion. United States v. Hewitt, 663 F.2d 1381 (11th Cir.1981).
Finally, and of particular importance to our decision in this case, we must emphasize that the "same evidence" test is not the measure of collateral estoppel in effect here. The determinative factor is not the introduction of the same evidence (in this case, evidence of defendant's participation in the larceny), but rather whether it is absolutely necessary to defendant's conviction for breaking or entering with the intent to commit larceny that the second jury find against defendant on an issue upon which the first jury found in his favor. As noted in United States ex rel. Triano v. Superior Court of New Jersey, 393 F. Supp. 1061, 1070, n. 8 (D.N.J.1975), aff'd without opinion, 523 F.2d 1052 (3d Cir.1975), cert, den., 423 U.S. 1056, 96 S. Ct. 787, 46 L. Ed. 2d 645, "[t]he `same evidence' could, in an appropriate case, conceivably be introduced at the second trial for an entirely different purpose than that which it served at the earlier trial."
With these principles in mind, we turn now to the facts in the case sub judice. The issue at defendant's first trial was whether he did, in fact, commit the crime of larceny. The elements of that crime are: 1) the wrongful taking and carrying away; 2) of the personal property of another; 3) without his consent; 4) with the intent to deprive permanently the owner thereof. State v. McCrary, 263 N.C. 490, 139 S.E.2d 739 (1965). In acquitting the defendant, the jury found only that there was insufficient evidence of one or more of the elements of larceny. Intent to commit the crime of larceny is not an element of the crime of larceny.
The elements of the offense of breaking or entering are: 1) the breaking or entering of any storehouse, shop or other building where any merchandise, chattel, money, valuable security or other personal property shall be; 2) with the intent to commit a felony (larceny in the case sub judice). N.C.Gen.Stat. § 14-54. Thus, to prove a defendant guilty of felonious breaking or entering, it is not necessary to prove that he was also guilty of larceny. Rather it is only necessary to prove that the defendant intended to commit a felony, to wit, larceny. The issue of defendant's intent to commit larceny was not raised, considered or passed upon by the first jury when it acquitted defendant of the larceny charge.
*614 Certainly the State was not precluded, on reprosecution for felonious breaking or entering, from introducing evidence of defendant's alleged participation in the actual break-in of Field's Jewelry Store. That aspect of the offense was not at issue in and was not an element of the larceny charge. Furthermore, as discussed above, the State was not precluded from introducing evidence, albeit the "same evidence," tending to implicate defendant in the larceny of the store where the sole purpose of the evidence was to prove defendant's intent to commit the crime of larceny, an issue which was neither raised nor resolved by his acquittal of the larceny charge.
In 1907 our Supreme Court, in an opinion authored by Chief Justice Clark, addressed this issue. We believe the reasoning of the Court was then sound and remains so. The Court held that defendant's acquittal of the charge of larceny protected him from being tried again for the same offense, "but it was competent, in order to show the intent to steal, to prove that the defendant took the articles ... [I]t is not an estoppel on the State to show the same facts if, in connection with other facts, they are part of the proof of another and distinct offense." State v. Hooker, 145 N.C. 581, 582-83, 59 S.E. 866, 866 (1907). The Court then noted the following principle, "stated in all the authorities" that:
"[t]hough the same act may be necessary to be shown in the trial of each indictment, if each offense requires proof of an additional fact which the other does not, an acquittal or conviction for one offense is not a bar to a trial for the other." One cannot be put twice in jeopardy for the same offense. When some indispensable element in one charge is not required to be shown in the other, they are not the same offense. [Emphasis added.]
Id. at 584, 59 S.E. at 867.
In sentencing the defendant to the maximum term of ten years' imprisonment for this offense, the trial judge found as factors in aggravation that the offense was committed for hire or pecuniary gain. There is no evidence of record that the defendant was hired or paid to commit the offense. The trial judge improperly relied on this factor. State v. Abdullah, 309 N.C. 63, 306 S.E.2d 100 (1983).
As an additional finding in aggravation, the trial judge found that the offense involved the actual or attempted taking of property of great monetary value. This, too, was error. There is no evidence to support this aggravating factor. State v. Thompson, 309 N.C. 421, 307 S.E.2d 156 (1983).
We note that the trial judge, upon defense counsel's urging, found the following non-statutory mitigating factor: "That the defendant did not testify in this case and relate to the court any perjured testimony." Upon resentencing, the court shall not consider this fact in mitigation. N.C. Gen.Stat. § 15A-1340.4(a)(1) states that "[t]he judge may not consider as an aggravating factor the fact that the defendant exercised his right to a jury trial." Implicit in this requirement is that a defendant not be penalized for electing to plead not guilty. It would be incongruous, therefore, to permit a trial judge to consider as a mitigating factor that the defendant elected not to testify so as to avoid giving perjured testimony.
The decision of the Court of Appeals is reversed and the case remanded to that Court for further remand to Superior Court, Mecklenburg County, for reinstatement of the judgment of defendant's guilt of felonious breaking or entering. Defendant is entitled to a new sentencing hearing.
REVERSED AND REMANDED.