Opinion
No. COA02-1219
Filed 15 April 2003 This case not for publication
Appeal by defendant from judgment entered 18 April 2002 by Judge Sanford L. Steelman in Union County Superior Court. Heard in the Court of Appeals 7 April 2003.
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.
Union County No. 00 CRS 52990
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 down Jones' 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, the statements 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 decision whether 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 his motion 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 Jones at 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 if actually 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).