State v. Chase

453 S.E.2d 195, 117 N.C. App. 686, 1995 N.C. App. LEXIS 61
CourtCourt of Appeals of North Carolina
DecidedFebruary 7, 1995
DocketNo. 9428SC341
StatusPublished

This text of 453 S.E.2d 195 (State v. Chase) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Chase, 453 S.E.2d 195, 117 N.C. App. 686, 1995 N.C. App. LEXIS 61 (N.C. Ct. App. 1995).

Opinion

JOHNSON, Judge.

Defendant Barbara Ann Chase was tried and convicted of gambling in Buncombe County District Court; defendant appealed to Buncombe County Superior Court. At the start of the proceedings in superior court, defendant moved for a dismissal claiming that the warrants which charged defendant with gambling were “fatally defective” and “failed to put defendant on proper notice.” The State argued that the warrants were sufficient; in the alternative, if the court ruled that the pleadings were insufficient, the State would file statements of charges pursuant to North Carolina General Statutes § 15A-922(e) (1988). The court granted defendant’s motion and allowed the State to file misdemeanor statements of charges. Defendant then moved to dismiss the misdemeanor statements of charges, alleging under North Carolina General Statutes § 15A-923(1988) that either a bill of information or an indictment is required to proceed in cases which are initiated in superior court. The trial court dismissed defendant’s motion. Defendant made other motions which were denied by the trial court which will be discussed more fully in this opinion.

[688]*688At trial, the State presented evidence in the form of testimony from detective Robert Carraway of the Buncombe County Sheriffs Department. Mr. Carraway worked with the vice squad as an undercover agent; the vice squad is responsible for investigating gambling offenses, illegal liquor, and drugs. Mr. Carraway had ¿pproximately one and one-half years experience enforcing the gambling laws.

During January and February 1993, Mr. Carraway worked undercover at five different locations in Buncombe County for gambling offenses, one of which was the BP station on Highway 74 in Fairview. On these undercover operations, Mr. Carraway would enter the location in plain clothes and play the machines in question. While there, he would buy drinks and converse with the store operators and the other people playing the machines. On two specific dates, 5 February 1993 and 9 February 1993, Mr. Carraway observed defendant working as a clerk in the BP station in Fairview. Mr. Carraway identified defendant as the person who had been the clerk in the store on those evenings; he also identified defendant’s sister and stated that he could tell the difference between the two sisters.

Mr. Carraway described the machine he played as a television screen which comes up with computer images of cherries and other objects which roll in several columns on the screen. A bet is placed on the game by inserting $1, $5, $10, or $20 into the machine. After the money is placed in the machine, the screen begins to roll with different symbols flashing on the screen. The symbols will eventually stop rolling on their own if no action is taken. There is also a button to stop the symbols, but they do not stop immediately after you hit the button. One of the actual machines Mr. Carraway played at the BP station in Fairview was identified and entered into evidence. Mr. Carraway demonstrated how to use the machine, how to place bets on the machine by betting a certain number of points, and how to accumulate credits by winning bets on the machine.

Mr. Carraway testified that he played this type of game at the BP station in Fairview on 5 February 1993. On that date, he entered the store through the front door and saw defendant behind the counter. He recognized her and knew her name because he had talked to her on previous occasions in the store. Mr. Carraway went to the counter and got change for $20 and proceeded to play the machine in the back corner. After he finished playing, he approached defendant and asked her to cash in his points. Defendant cleared the machine, came back to the register and gave Mr. Carraway $10 for his points. Mr. Carraway [689]*689spent approximately $15 to win the $10. Mr. Carraway went back to the same store on 9 February 1993, again saw defendant behind the register, bought some grapefruit juice and proceeded to play on one of the machines. He accumulated 200 points on the machine; he cashed this point total in for $10 which defendant paid him out of the cash register.

On cross-examination, Mr. Carraway testified that the machine which was used in court had a North Carolina Revenue Stamp attached to it. He also testified that certain types of these machines are legal if used for amusement and that a player can exchange points for up to $10 in coupons or prizes but not money. Mr. Carraway never saw any coupons or prizes being issued for points on the machines at the BP station.

Rebecca Reel, an employee for the accounting firm which does the payroll for the convenience stores where defendant worked, testified for defendant. Ms. Reel brought payroll records of defendant to court, indicating that defendant’s first paycheck was written on 12 March 1993. On cross-examination, Ms. Reel testified that she had no first-hand knowledge of defendant’s actual working hours or whether it was defendant who was actually paid for working at a store.

Defendant testified that she was primarily employed as a certified nursing assistant at the Black Mountain Center, a mental retardation institute. She has worked third shift at that facility for the past two years from 11:00 p.m. until 7:30 p.m. Defendant further testified that she also worked for C & F Convenience Stores and began work part-time in March 1993 as a cashier. Defendant testified that there are machines to play in the store in which she worked and that she was instructed to pay up to $10 in merchandise from the store for winners. This was paid by giving out a coupon or credit voucher. Defendant testified that she was not working in the store on either 5 February 1993 or 9 February 1993, and that she was working the third shift at Black Mountain Center on both of those days. Defendant testified that the only time she had seen Mr. Carraway was when he arrested her on 31 March 1993. Defendant testified that she has a sister who manages the BP station.

On cross-examination, defendant testified that she did not fill in at the BP station when someone was sick during the months of January and February in 1993. Defendant further testified that she has worked at her convenience store job and the Black Mountain Center on the same day and that there was nothing that would prevent her [690]*690from working at both places on the same day. Defendant also testified that she would not have been working at Black Mountain Center during the time, approximately 8:00 or 9:00 p.m., when Mr. Carraway testified the gambling incidents took place at the BP station.

The jury found defendant guilty of two counts of gambling. The trial judge consolidated the cases for sentencing and imposed a sentence of six months incarceration which was suspended for a period of five years, and placed defendant on supervised probation for one year with a $100 fine. Defendant has appealed to our Court.

Defendant first argues on appeal that the trial court erred in failing to dismiss the misdemeanor statements of charges made by the State in superior court on the date of the trial in violation of North Carolina General Statutes § 15A-923. We disagree with defendant. We note that North Carolina General Statutes § 15A-923(a) clearly states that “[t]he pleading in felony cases and misdemeanor cases initiated in the superior court division must be a bill of indictment, unless there is a waiver of the bill of indictment as provided in G.S. § 15A-642. If there is a waiver, the pleading must be an information. . .. “ (Emphasis added.) The instant case was initiated in district court.

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Cite This Page — Counsel Stack

Bluebook (online)
453 S.E.2d 195, 117 N.C. App. 686, 1995 N.C. App. LEXIS 61, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-chase-ncctapp-1995.