STATE OF NORTH CAROLINA
v. Union County
No. 00 CRS 52990
RICK MEDLIN
Attorney General Roy Cooper, by Assistant Attorney General
Anne Goco Kirby, for the State.
Stowers & James, P.A., by Paul M. James, III, for defendant-
appellant.
MARTIN, Judge.
Defendant appeals from a judgment sentencing him to a minimum
term of thirteen months and a maximum term of sixteen months
entered upon a jury verdict finding him guilty of common law
robbery.
The State presented evidence tending to show that defendant,
Tyrone Sturdivant and Steve Leak approached Prime Leon Jones as he
stood on a street corner in Monroe, N.C. at approximately 1:45 a.m.
on 18 July 2000. Leak asked Jones whether he had any money. Leak
pointed a gun at Jones and told him to “give it up.” Leak fired
one shot with the gun. Jones gave Leak all the jewelry he was
wearing. Leak then forced Jones to disrobe. Leak removed Jones'
wallet from the back pocket of his pants. Sturdivant pulled downJones' pants and removed them. Leak threw the pants to defendant,
who held them upside down and shook them. When a police cruiser
arrived at the scene, defendant, Sturdivant and Leak turned and
ran.
Defendant did not present any evidence.
Defendant presents five arguments. For the following reasons,
we reject each of them.
First, defendant contends the court erred by admitting the
statements of Leak, who was not tried with defendant.
Specifically, he excepts to the admission of Leak's statements to
the victim: (1) asking the victim whether he had any money; and
(2) commanding the victim to “give it up.” He argues an inadequate
foundation was laid for admission of the testimony pursuant to G.S.
§ 8C-1, Rule 801(d)(E) under the hearsay exception for statements
of a co-conspirator.
Defendant's argument is premised on the assumption that the
statements are hearsay. By definition, hearsay is a statement,
other than one made by the declarant while testifying at trial,
offered to prove the truth of the matter asserted. N.C. Gen. Stat.
§ 8C-1, Rule 801(c) (2001). If the statement is offered for any
purpose other than to prove the truth of the matter asserted, then
the statement is not hearsay and it is admissible. State v.
Dickens, 346 N.C. 26, 484 S.E.2d 553 (1997). For example, a
statement made by one person to another is admissible to explain
the subsequent conduct of the person to whom the statement is made.
State v. Reid, 335 N.C. 647, 440 S.E.2d 776 (1994). Here, thestatements were admissible to explain Jones' conduct in response to
the statements.
Second, defendant contends the court erred by allowing the
prosecutor to ask leading questions on redirect examination of
Jones and to inquire into matters outside the scope of cross
examination. During cross examination of Jones, defendant sought
to establish inconsistencies between testimony given by Jones at
the present trial and testimony given by Jones at Leak's trial. On
redirect examination the prosecutor sought to clarify Jones'
testimony by referring him to certain portions of the transcript of
his testimony at the prior trial and having him read his testimony.
Defendant interposed general objections, and ultimately entered a
“standing objection to this line of questioning, specifically
stating for the record the foundation and improper procedure as far
as prior consistent testimony.”
To preserve a question for appellate review, a party must have
presented to the trial court a timely objection, stating the
specific grounds for the ruling the party desired the court to make
if the specific grounds are not apparent. N.C.R. App. P. 10(b)(1).
The party may not, for the first time on appeal, argue a ground
that was not presented to the trial court. State v. Hamilton, 351
N.C. 14, 519 S.E.2d 514 (1999). At no point did defendant object
to the testimony on the grounds he now raises on appeal.
Assuming, arguendo, defendant's vague standing objection is
sufficient to present the issue for our consideration, we
nonetheless rule against defendant's position. The decisionwhether to allow leading questions is within the discretion of the
trial judge, and will not be disturbed on appeal unless an abuse of
discretion is shown. State v Greene, 285 N.C. 482, 206 S.E.2d 229
(1974). Similarly, the decision whether to allow testimony on
redirect examination involving matters beyond the scope of direct
or cross examination is within the discretion of the trial judge.
State v. Barton, 335 N.C. 696, 441 S.E.2d 295 (1994). We find no
abuse of discretion.
Third, defendant contends the court erred by allowing the
State's motion for joinder of defendant's case for trial with
Sturdivant's. The decision to join cases for trial is within the
discretion of the trial judge and will not be overturned on appeal
absent a showing of abuse of discretion. State v. Carson, 320 N.C.
328, 357 S.E.2d 662 (1987). The test for determining whether the
trial court erred by denying a defendant's motion to sever is
“whether the conflict in the defendants' respective positions at
trial is of such a nature that, considering all of the evidence in
the case, defendant was denied a fair trial.” State v. Green, 321
N.C. 594, 601, 365 S.E.2d 587, 591, cert. denied, 488 U.S. 900, 102
L. Ed. 2d 235 (1988). When neither defendant presents evidence and
the State presents all of the evidence necessary to establish the
guilt of both defendants, as here, the defendant is not denied a
fair trial by the joinder of cases for trial. State v. Lundy, 135
N.C. App. 13, 519 S.E.2d 73 (1999), disc. review denied, 351 N.C.
365, 542 S.E.2d 651 (2000). This assignment of error is overruled.
Fourth, defendant contends the court erred by denying hismotion to dismiss for insufficient evidence. In ruling upon a
motion to dismiss, the court is required to determine whether the
State has presented substantial evidence of each element of the
offense charged and to identify the defendant as the perpetrator.
State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982).
Substantial evidence is that which a reasonable mind might accept
as adequate to support a conclusion. Id. at 66, 296 S.E.2d at 652.
The court must consider the evidence in the light most favorable to
the State, giving it the benefit of every reasonable inference that
may be drawn. Id. at 67, 296 S.E.2d at 652-53. Contradictions and
discrepancies in the evidence are to be left to the jury to
resolve. Id. at 67, 296 S.E.2d at 653.
The offense charged here, common law robbery, consists of the
felonious, non-consensual taking of money or personal property from
the person or presence of another by means of violence or fear.
State v. Smith, 305 N.C. 691, 292 S.E.2d 264, cert. denied, 459
U.S. 1056, 74 L. Ed. 2d 622 (1982). Under the principle of acting
in concert, a defendant may be guilty of a crime if he is present
at the scene of the crime and the evidence shows he is acting
together, pursuant to a common plan or purpose, with another person
who commits the acts necessary to constitute the crime. State v.
Joyner, 297 N.C. 349, 255 S.E.2d 390 (1979).
Viewed in the light most favorable to the State, the evidence
shows that defendant, Sturdivant and Leak together walked towards
Jones. Defendant and Sturdivant remained nearby while Leak
approached Jones and demanded money and personal items from Jonesat gunpoint. Leak pulled off Jones' shirt while Sturdivant pulled
down Jones' pants. Leak pushed Jones to the ground while
Sturdivant removed Jones' pants and threw them to defendant.
Defendant turned the pants upside down and shook them. Defendant
also beseeched the others to check Jones' pockets. Defendant ran
with the others when the police cruiser arrived at the scene. A
jury could reasonably find, based upon the foregoing evidence, that
defendant acted in concert with the other two men to commit the
crime of common law robbery. The trial court properly denied the
motion to dismiss.
Fifth, defendant contends that the court erred by denying his
request for an instruction that the defendant's mere presence at
the scene of the crime is not sufficient alone to establish acting
in concert and that the State must prove beyond a reasonable doubt
the defendant shared in a common purpose to commit a crime in order
for the jury to find the defendant guilty. In State v. Lundy, 135
N.C. App. 13, 23, 519 S.E.2d 73, 82 (1999), we held that the trial
court's refusal to submit an identical requested instruction was
not error when the court's instructions made it “abundantly clear”
that to convict the defendant of the offense under the theory of
acting in concert, the jury had to find beyond a reasonable doubt
that the defendant shared a common plan with the co-defendant to
commit the offense. Here, similar to Lundy, the trial court
instructed the jury that under the legal doctrine of acting in
concert, if two or more persons “join in a purpose to commit
robbery with a firearm or common law robbery, each of them ifactually or constructively present is guilty of that crime if the
other commits the crime.” With regard to each element of the
offense, the court instructed the jury that in order to find
defendant guilty, the State had to prove beyond a reasonable doubt
that defendant “or someone with whom he was acting in concert”
committed the elemental act. These instructions made it clear to
the jury that in order to find defendant guilty, it had to find
beyond a reasonable doubt that defendant joined in or shared a
common plan with the two others to rob Jones.
Defendant received a fair trial, free of prejudicial error.
No error.
Judges McCULLOUGH and CALABRIA concur.
Report per Rule 30(e).
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