State v. Moore , 87 N.C. App. 156 ( 1987 )

360 S.E.2d 293 (1987) 87 N.C. App. 156

STATE of North Carolina
v.
Kenneth MOORE.

No. 8718SC20.

Court of Appeals of North Carolina.

September 15, 1987.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Steven F. Bryant, Raleigh, for the State.

Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender Leland Q. Towns, Raleigh, for defendant-appellant.

ARNOLD, Judge.

Defendant first contends the trial court erred in admitting Virginia Moore's statements to Officers Hoyle and Fuller under G.S. 8C-1, Rule 804(b)(5).

Before hearsay testimony can be admitted under Rule 804(b)(5), the trial judge must first find that the declarant is unavailable and then engage in a six-part inquiry set out in State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985). State v. Triplett, 316 N.C. 1, 340 S.E.2d 736 (1986). The six-part inquiry is as follows:

(1) Has proper notice been given?

(2) Is the hearsay not specifically covered elsewhere?

(3) Is the statement trustworthy?

(4) Is the statement material?

(5) Is the statement more probative on the issue than any other evidence which the proponent can procure through reasonable efforts?

(6) Will the interests of justice be best served by admission?

Smith, 315 N.C. at 92-96, 337 S.E.2d at 844-46.

Defendant specifically argues that the trial court erred in failing to determine whether the hearsay statements were covered by any of the other exceptions and in failing to enter this conclusion on the record. In order for a statement to fall within the 804(b)(5) hearsay "catchall" exception, the statement must not be admissible under any other exception to the hearsay rule. Detailed findings of fact are not required, but the trial judge must enter his conclusion in the record. Id.

Although there is no specifically stated conclusion that the statements are not covered elsewhere, such conclusion is inherently implicit. At voir dire, the prosecutor argued that Virginia Moore's statements were admissible under Rule 803(1), 803(2) and 804(b)(5). In its order, the trial court concluded that the statements were admissible under 804(b)(5). This conclusion clearly implies that the statements were not admissible under 803(1), 803(2) or any other exception. While we are compelled to find that the trial court erred in failing to explicitly state its conclusion, we hold that defendant was in no way prejudiced by such error.

Defendant also argues that the statements do not possess the required circumstantial guarantees of trustworthiness. We disagree. The threshold determination of trustworthiness has been called the most significant requirement of admissibility under the residual hearsay exception. Id. Findings of fact and conclusions of law as to the trustworthiness requirement must appear in the record. Id. After a careful review of the record, we hold that there are sufficient findings to support the trial court's conclusion that the statements possess the requisite "circumstantial guarantees of trustworthiness."

Defendant further argues that the trial court erred in failing to enter a conclusion on the record that the admission of the statements will best serve the general purposes of the rules of evidence.

The trial court concluded that "the general purpose in the interest of justice will best be served by the admission of these statements into evidence...." This is clearly sufficient under the Smith inquiry. Defendant's argument is wholly devoid of merit.

Defendant next assigns as error the trial court's failure to grant his motion to dismiss the second-degree murder charge because the evidence was insufficient.

When a defendant moves for dismissal based on insufficiency of the evidence, the trial court must determine whether there is substantial evidence of each essential element of the offense charged, and evidence of defendant being the one who committed the crime. State v. Bullard, 312 N.C. 129, 322 S.E.2d 370 (1984).

Defendant was charged with second-degree murder under a theory of acting in concert. A defendant acts in concert with another to commit a crime when he acts in harmony or in conjunction with another pursuant to a common criminal plan or purpose. State v. Diaz, 317 N.C. 545, 346 S.E.2d 488 (1986). However it is not necessary for a defendant to do any particular act constituting at least part of a crime in order to be convicted of that crime under the concerted action principle so long as he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime. State v. Joyner, 297 N.C. 349, 255 S.E.2d 390 (1979).

The evidence tended to show that the two brothers arrived with a gun. Defendant had possession of the gun and pointed it towards the victim. A struggle ensued and the victim ran into a bedroom. The brothers followed and Tim Moore shot the victim. This evidence was more than sufficient to support the trial court's denial of defendant's motion to dismiss.

Defendant finally contends the trial court committed plain error when it instructed the jury on acting in concert. Defendant failed to object to the instructions at trial and bases his plain error allegation on his assertion that there is no evidence to support a theory of acting in concert. Having already dealt with the sufficiency of evidence supporting the theory of acting in concert, this contention has been answered. Defendant's contention that the trial court committed plain error when it instructed the jury on acting in concert is without merit.

No error.

HEDRICK, C.J., and ORR, J., concur.