STATE OF NORTH CAROLINA
v. Cabarrus County
Nos. 99 CRS 20551-52
BILLY LEE EIDSON
Attorney General Roy Cooper, by Assistant Attorney General
David G. Heeter, for the State.
Amy S. Davis for defendant appellant.
TIMMONS-GOODSON, Judge.
On 5 October 2000, a jury found Billy Lee Eidson ("defendant")
guilty of robbery with a dangerous weapon based upon evidence
tending to show the following: On the morning of 6 December 1999,
defendant spoke with Clyde Ronald Blackwelder ("Blackwelder") on
the front porch of Blackwelder's residence in Kannapolis, North
Carolina. According to Blackwelder, defendant expressed interest
in renting a room at his boarding house. As he spoke with
defendant, Blackwelder noticed another person standing on his
porch. Peering around the front door, Blackwelder saw a man, later
identified as George Draper ("Draper"), who was wearing a ski mask.
Defendant and Draper then “slung the door out of [Blackwelder's]hand, busted in and started beating up on” him. Defendant held
Blackwelder while Draper repeatedly cut him with an eight-inch
butcher knife. Blackwelder called out to another occupant of the
residence, Jackie Sheets ("Sheets") for assistance. Defendant
seized Sheets by the neck and led her through the hallway to a
bedroom. He and Draper then “tore” the room apart, searching for
valuables. Defendant ordered Sheets to “[t]ell [Blackwelder] to
give [Draper] the money and I won't let [Draper] kill him.”
Blackwelder gave defendant a one-hundred dollar bill and gave
Draper the contents of his wallet. Draper also took a .357 magnum
revolver.
At trial, Draper testified that on 5 December 1999, he and
defendant discussed “taking Mr. Blackwelder down and get[ting] his
money." On the morning of 6 December 1999, Draper and defendant
went to Blackwelder's residence and concealed themselves in some
shrubbery until they determined that Blackwelder was alone in the
home. Draper carried a butcher knife which defendant had obtained
for him. Draper's account of the robbery was substantially similar
to Blackwelder's version. According to Draper, defendant told
Blackwelder “to give [Draper] the money and I won't let him kill
you.” Draper observed defendant take the one-hundred dollar bill
from Blackwelder and admitted taking $185.00 and the handgun from
Blackwelder's bedroom.
Kannapolis Police Officer Scott Boggs ("Officer Boggs")
responded to Sheets' call for emergency assistance in time to see
“a male subject with a dark ski mask” emerge from Blackwelder'sfront door. Officer Boggs noticed that the man was carrying a
“large caliber handgun.” Officer Boggs apprehended the man, whom
he recognized as Draper after removing his ski mask. Law
enforcement officers found a butcher knife and $218.00 in cash on
Draper's person. Shortly after midnight, officers also took
defendant into custody. He gave a statement denying participation
in the robbery.
Testifying in his own defense, defendant claimed that he
visited Blackwelder's residence in order to rent a room at the
boarding house and was unaware of Draper's intent to rob
Blackwelder. Defendant denied taking $100.00 from the residence.
Although he admitted that Draper had spent the night at his
residence on 5 December 1999, defendant denied discussing a robbery
with Draper or obtaining a knife for him. According to defendant,
he and Draper walked together to Blackwelder's residence, whereupon
Draper continued walking toward the boarding house. Defendant did
not see Draper again until he appeared on the porch in a ski mask
and forced his way into the residence. Defendant claimed that he
attempted to protect Sheets by leading her into the bedroom, away
from Draper. Defendant asked Sheets to give Blackwelder's money to
Draper “so that they'll go on and I can get out of here and get
back home where I'm supposed to be.” As Draper and Blackwelder
came into the bedroom, Blackwelder attempted to give defendant some
gold necklaces, which defendant refused to accept. Defendant
further testified that he pushed Blackwelder aside in order to
leave the house when he saw Draper brandish the handgun. Upon receiving the jury's guilty verdict, the trial court
sentenced defendant to an active term of imprisonment for 94 to 122
months. Defendant now appeals his conviction and resulting
sentence to this Court.
_____________________________________________________
Defendant presents three issues for review, arguing that the
trial court erred in (1) admitting hearsay testimony; (2) failing
to give a curative instruction; and (3) denying defendant's motion
to dismiss. For the reasons stated herein, we find no error by the
trial court.
In his first assignment of error, defendant contends the trial
court erred in admitting hearsay testimony offered by the State.
The statement at issue arose in the following exchange:
[PROSECUTOR]: What did they, what did
[defendant] say about money?
[BLACKWELDER]: He said to Ms. Sheets, [”G]et,
tell Ron to give [Draper] the money and I
won't let [Draper] kill him.[”]
[DEFENSE COUNSEL]: Your Honor, I'll object to
this. It sounds like this is stuff that he
knows second-hand from what Ms. Sheets has
told him.
[BLACKWELDER]: No, I saw it.
. . . .
[PROSECUTOR]: Your Honor, I'm not offering
this for truth or falsity. Mr. Blackwelder's
testified he was present and did hear this
said.
[THE COURT]: Overruled.
Defendant asserts that the trial court's ruling improperly allowed
the State to introduce Sheets' out-of-court statement to the jury. He avers that Blackwelder could not have heard the statement he
ascribed to defendant and therefore must have obtained this
information from Sheets. We disagree.
The trial court properly overruled defendant's hearsay
objection. Defendant's claim that the witness based his testimony
on Sheets' out-of-court account of events is purely speculative,
expressly contradicted by Blackwelder's sworn testimony that he
observed the exchange in question. See N.C. Gen. Stat. § 8C-1,
Rule 602 (1999). Similarly, defendant's assertion that Blackwelder
could not have heard his conversation with Sheets due to their
respective positions in the residence is unsupported by the
transcript. Because the witness claimed personal knowledge of
defendant's statement to Sheets, any conflicting evidence went to
the credibility of the testimony, not its admissibility. See State
v. Stitt, __ N.C. App. __, __, 553 S.E.2d 703, 707 (2001). We note
further that defendant waived his objection by subsequently
allowing Draper to describe the same event without objection. See
State v. Wingard, 317 N.C. 590, 599, 346 S.E.2d 638, 644 (1986).
Although defendant does not specifically raise the issue, we
further conclude that defendant's own out-of-court statement was
not hearsay as defined by Rule 801 of our Rules of Evidence,
because it was not offered for the truth of the matter asserted,
i.e., that defendant would not let Draper kill Blackwelder if
Blackwelder surrendered his money. Rather, this statement was
admissible as part of the res gestae of the robbery. See State v.
Sidden, 315 N.C. 539, 552, 340 S.E.2d 340, 348 (1986). Thus,because these statements were not hearsay, the trial court properly
overruled defendant's objection, and we therefore overrule
defendant's first assignment of error.
By his second assignment of error, defendant argues that the
trial court committed plain error by failing to give a curative
instruction after the introduction of Blackwelder's hearsay
testimony. Having concluded that the testimony discussed above was
admissible, we overrule the assignment of error as to this
evidence. Defendant cites additional testimony offered by
Blackwelder, which was stricken by the trial court, as follows:
[BLACKWELDER]: . . . . Ms. Sheets says,
[“]Ron's got money --[”]
THE COURT: Is she here? Is she a witness?
[PROSECUTOR]: She's not present.
. . . .
THE COURT: All right, you can't testify to
what she did or said.
[PROSECUTOR]: Skip what she said.
[DEFENSE COUNSEL]: Motion to strike.
. . . .
THE COURT: Well, strike, yes.
[BLACKWELDER]: Okay.
THE COURT: Sustained as to what she may have
said.
As shown above, the trial court immediately recognized the hearsay
problem and intervened ex mero motu before any significant
testimony was offered. Moreover, the court allowed defendant'ssubsequent motion to strike, making clear that the witness could
not testify about Sheets' out-of-court statements. While we
believe the trial court's actions were sufficient and that no
additional curative instruction was required, we further note the
absence of any possible prejudice arising from the statement,
“Ron's got money[.]” See State v. York, 347 N.C. 79, 93-94, 489
S.E.2d 380, 388-89 (1997). This assignment of error is without
merit.
In his remaining assignment of error, defendant avers the
trial court erred in denying his motion to dismiss the charge for
want of sufficient evidence. We review the denial of a defendant's
motion to dismiss by examining the evidence in the light most
favorable to the State. See State v. Fowler, 353 N.C. 599, 621,
548 S.E.2d 684, 700 (2001). Rather than contend with this well-
established standard of review, however, defendant fashions his
argument based entirely on his own trial testimony, completely
ignoring the prosecution's proffer. Taking into account the
testimony of Blackwelder, Draper, and Officer Boggs, the State
adduced substantial evidence that defendant, far from being an
unwitting observer, discussed the robbery with Draper beforehand,
procured the butcher knife for Draper, forced his way into
Blackwelder's house, joined with Draper in physically assaulting
Blackwelder and in ransacking his bedroom and study, and stole
$100.00 from Blackwelder's home. These facts are more than
sufficient to demonstrate that defendant acted in concert with
Draper to commit robbery with a dangerous weapon, and the trialcourt properly denied defendant's motion to dismiss. We therefore
overrule defendant's final assignment of error.
In conclusion, we hold defendant received a fair trial, free
from prejudicial error.
No error.
Chief Judge EAGLES and Judge McCULLOUGH concur.
Report per Rule 30(e).
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