STATE OF NORTH CAROLINA
v. Wake County
No. 05CRS016431
SEDRICK MAXWELL BAKER
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Larissa S. Ellerbee, for the State.
Richard G. Roose for defendant-appellant.
HUNTER, Judge.
Defendant was found guilty of trafficking in marijuana by
possession. He was sentenced to a minimum of twenty-five months
and a maximum of thirty months in the North Carolina Department of
Correction. After a careful review, we find no error.
The State presented evidence tending to show that on 26
February 2005, officers of the Raleigh Police Department received
information that a package containing drugs was being delivered to
the United Parcel Service (“UPS”) facility at the Raleigh-Durham
airport. A drug-sniffing dog subsequently alerted on a particular
package. The officers opened the package and found approximately
twenty pounds of marijuana contained therein. The officers
repackaged the box and one officer, dressed in a UPS driveruniform, delivered the package to the address listed on the label,
7301 Brookmont Drive, Apartment 208, in Raleigh. A person answered
the door of the apartment, responded that he was “Joe” as listed on
the package, and accepted delivery of the package by signing the
name “Joe Frazier.” The officer identified defendant as the person
who accepted delivery of the package.
Other officers obtained a warrant to search the delivery
address. Inside the apartment, the officers found the package that
had just been delivered. They also found in the closet of the
master bedroom twenty-five grams of marijuana. They also found
documents tending to identify the resident of the apartment as
“Sedrick Baker.”
A chemist identified the substance inside the package as 19.9
pounds of marijuana.
Defendant testified that he resided at Apartment 208, 7301
Brookmont Drive, with his girlfriend and their two children. He
acknowledged signing for the package. He also admitted to
possession of the marijuana found in the master bedroom for
personal usage. He asserted that he accepted the package as a
favor on behalf of a friend named “Moe.”
Defendant also testified that Moe told him the package “was
clothes coming from his uncle.” The State objected and moved to
strike. The court sustained the objection and instructed the jury
to disregard the statement. Later, in response to a question by
defense counsel as to whether he knew what was contained in the
package, defendant declared: “No, ma'am, they told -- he told me.” The court interrupted and refused to allow defendant to testify as
to what he was told on the ground the testimony was hearsay.
Defendant's sole assignment of error concerns the court's
refusal to permit him to testify regarding what he was told. He
contends the testimony should not have been excluded as hearsay
because it was offered not to prove the truth of the matter
asserted but to explain his conduct.
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. Gen. Stat. § 8C-1,
Rule 801(c) (2005). By converse, “[o]ut-of-court statements
offered for purposes other than to prove the truth of the matter
asserted are not considered hearsay.” State v. Golphin, 352 N.C.
364, 440, 533 S.E.2d 168, 219 (2000), cert. denied, 532 U.S. 931,
149 L. Ed. 2d 305 (2001). For example, “[w]hen offered to explain
the subsequent conduct of the person to whom the declaration was
made, an out-of-court declaration is not considered hearsay.”
State v. Jones, 347 N.C. 193, 216, 491 S.E.2d 641, 655 (1997).
We agree with defendant that the evidence was not hearsay
because it was not offered to show the truth of the matter
asserted, that is, that the declarant's uncle mailed or was mailing
clothes to the declarant, but to explain why defendant accepted
delivery of the package. The court, therefore, erred by excluding
the evidence.
Even so, a “defendant is not entitled to a new trial based on
trial errors unless such errors were material and prejudicial.” State v. Alston, 307 N.C. 321, 339, 298 S.E.2d 631, 644 (1983).
[T]he exclusion of testimony cannot be held
prejudicial when the same witness is
thereafter allowed to testify to the same
import, or when the evidence is thereafter
admitted, or when the party offering the
evidence has the full benefit of the fact
sought to be established thereby by other
evidence.
State v. Ransome, 342 N.C. 847, 853, 467 S.E.2d 404, 408 (1996).
Thus, the erroneous exclusion of evidence as hearsay is not
prejudicial error if similar evidence is admitted elsewhere. State
v. Burke, 342 N.C. 113, 120, 463 S.E.2d 212, 217 (1995). Moreover,
overwhelming evidence of guilt may render an error even of
constitutional dimension harmless beyond a reasonable doubt. State
v. Autry, 321 N.C. 392, 403, 364 S.E.2d 341, 348 (1988).
We conclude the error is harmless. Defendant testified that
he accepted the package solely as a favor for an acquaintance
identified as “Moe”; that he had no reason to suspect Moe was a
drug dealer; and that he did not know what was in the package.
Moreover, when defendant saw a police officer approach him outside
the apartment after he had accepted delivery of the package, he
turned and ran from the officers. Upon apprehension, before any
questioning by the officers, he voluntarily stated that he did not
know what was in the package. “An accused's flight is 'universally
conceded' to be admissible as evidence of consciousness of guilt
and thus of guilt itself.” State v. Jones, 292 N.C. 513, 525, 234
S.E.2d 555, 562 (1977) (quoting Wigmore on Evidence § 276 (1940)).
Defendant received a fair trial, free of prejudicial error.
No error.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).
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