2. Evidence--relevance--guilt of third party
The trial court did not err in a prosecution for providing drugs to an inmate by excluding
cross-examination questions by defendant which defendant contends would have shown that the
marijuana could have come from someone else. Defendant's proffered cross-examination only
sought to raise the inference that some third party might have smuggled the marijuana and did
not point to any specific person.
3. Drugs--supplying drugs to inmate--sufficiency of evidence
The trial court did not err by refusing to dismiss for insufficient evidence a charge of
providing drugs to an inmate where defendant visited her boyfriend, an inmate at the Alexander
County jail; they spoke in a cubicle, separated by a glass window; following their conversation,
defendant was seen rising from a squatting position and her boyfriend was seen picking
something up near the jail door; there was a separation between the door and the floor; the
boyfriend told defendant to hurry and to leave when a jailer and a deputy questioned him; and a
marijuana cigarette was found in defendant's hand.
Attorney General Michael F. Easley, by Assistant Attorney
General James C. Holloway, for the State.
L. Dale Graham for defendant-appellant.
LEWIS, Judge.
Defendant was tried at the 4 August 1998 session of Alexander
County Superior Court for providing drugs to an inmate at a local
confinement facility on 4 May 1997, in violation of N.C. Gen. Stat.
§ 14-258.1(a). The jury returned a verdict of guilty on 4 August
1998, and defendant now appeals.
At trial, the State's evidence tended to show that defendant
visited her boyfriend, Bobby Hightower ("Hightower"), at the
Alexander County jail on Sunday afternoon, 4 May 1997, where
Hightower was then an inmate. They proceeded to speak in a cubicle
for ten minutes, separated only by a glass window. Following their
conversation, defendant was observed rising up from a squatting
position and Hightower was then seen bending over and picking
something up near the main jail door. At that time, there was
approximately an inch or an inch-and-a-half separation between the
jail door and the floor. When the jailer on duty and a deputy
sheriff immediately questioned Hightower as to what was in his
hand, he told defendant to "hurry" or "leave." The jailer and
deputy sheriff discovered in Hightower's hand a marijuana
cigarette, around which was wrapped twelve dollars. [1]In her first assignment of error, defendant argues that
the jailer's and deputy sheriff's testimony that Hightower said
"hurry" or "leave" to defendant as she was departing constitutes
inadmissible hearsay. We disagree. In their respective briefs,
the parties focus on whether such statements fall within the
excited utterance exception to hearsay. See N.C.R. Evid. 803(2).
We need not address those arguments as these statements are not
even hearsay in the first place.
"'Hearsay' is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted." N.C.R. Evid.
801(c). The Official Commentary to Rule 801, however, points out
that "[i]f the significance of an offered statement lies solely in
the fact that it was made, no issue is raised as to the truth of
anything asserted, and the statement is not hearsay." N.C.R. Evid.
801, Official Commentary. Directives, such as those here, are not
hearsay because they are simply offered to prove that the directive
was made, not to prove the truth of any matter asserted therein.
Cf. United States v. Gibson, 675 F.2d 825, 834 (6th Cir.) ("Indeed,
a suggestion or an order is not subject to verification at all
because such utterances do not assert facts."), cert. denied, 459
U.S. 972, 74 L. Ed. 2d 285 (1982).
On this point, State v. Hood, 294 N.C. 30, 239 S.E.2d 802
(1978), is instructive. In Hood, the following testimony was
objected to as hearsay:
Well, the way it was I suppose to [sic] he
said I supposed to set upon the bank . . . .
[Objection; overruled]
I suppose to set upon the bank and shoot
through the windshield, back windshield.
Id. at 40, 239 S.E.2d at 808. In addressing the defendant's
contention that this testimony amounted to hearsay, our Supreme
Court stated:
The witness's response that he 'was suppose to
set upon the bank [etc.] . . .' indicates that
defendant directed the witness to do certain
things. Such a response is not hearsay in
that it is offered only to show that the
statement was made, and not to show the truth
of matters asserted in the statement. The
probative force of such testimony, i.e., that
the statement was made, depends on the
credibility of the witness himself, and not on
the credibility of some person other than the
witness producing such testimony.
Id. at 40-41, 239 S.E.2d at 808. Here, as in Hood, the
significance of the statement "hurry" or "leave" was in the fact
that the statement was made, not in the truth of any matters
asserted therein. Accordingly, defendant's first assignment of
error is overruled.
[2]Next, defendant contests the trial court's exclusion of
certain questioning purportedly relevant to defendant's case.
"[E]ven though a trial court's rulings on relevancy technically are
not discretionary and therefore are not reviewed under the abuse of
discretion standard applicable to Rule 403, such rulings are given
great deference on appeal." State v. Wallace, 104 N.C. App. 498,
502, 410 S.E.2d 226, 228 (1991), disc. review denied, 331 N.C. 290,
416 S.E.2d 398, cert. denied, 506 U.S. 915, 121 L. Ed. 2d 241
(1992). With this standard of review in mind, we turn todefendant's proffered line of questioning.
Specifically, defendant sought to cross-examine the deputy
sheriff as to four things: (1) inmates serving DWI sentences being
in the jail that weekend; (2) other occasions in which prisoners
brought in contraband themselves; (3) the general procedure for
visitors bringing in clothing or personal items to inmates; and (4)
"trustees" (i.e. trusted inmates) being allowed in the lobby area
of the jail. Defendant argues that such cross-examination would
have shown the marijuana here could have come from someone other
than defendant. We conclude that such cross-examination was
properly excluded by the trial court as being irrelevant.
"Evidence that another committed the crime for which the
defendant is charged generally is relevant and admissible as long
as it does more than create an inference or conjecture in this
regard. It must point directly to the guilt of the other party."
State v. Cotton, 318 N.C. 663, 667, 351 S.E.2d 277, 279 (1987)
(emphasis added). Here, defendant's proffered cross-examination
only sought to raise the inference that some third party might have
smuggled in the marijuana -- it did not point to any specific
person. Thus, defendant's argument is rejected. See also State v.
Brewer, 325 N.C. 550, 562, 386 S.E.2d 569, 575 (1989) (holding
defendant's proffered evidence to be irrelevant because "it
fail[ed] to point to a specific other person as the perpetrator of
the crime with which defendant is charged"), cert. denied, 495 U.S.
951, 109 L. Ed. 2d 541 (1990).
[3]Finally, defendant contests the trial court's failure todismiss the charges against her for insufficient evidence. "In
ruling upon defendant['s] motion to dismiss on the grounds of
insufficient evidence, the trial court is required to interpret the
evidence in the light most favorable to the State, drawing all
reasonable inferences in the State's favor." State v. Cox, 303
N.C. 75, 87, 277 S.E.2d 376, 384 (1981). There must be substantial
evidence of defendant's guilt as to each element of the crime
charged. Id. Here, defendant was charged with providing drugs to
an inmate at a local confinement facility. To withstand a motion
to dismiss for that offense, the State had to prove three elements:
(1) Hightower was an inmate at a local confinement facility; (2)
while Hightower was an inmate, defendant gave him a controlled
substance; and (3) defendant acted knowingly and intentionally.
See N.C. Gen. Stat. 14-258.1(a) (1993); N.C.P.I., Crim. 233.80.
The State's evidence, as summarized earlier, satisfied each of
these three elements. Thus, defendant's final argument is without
merit.
No error.
Judges JOHN and McGEE concur.
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