State v. Harper , 51 N.C. App. 493 ( 1981 )

277 S.E.2d 72 (1981)

STATE of North Carolina
v.
Curtis HARPER.

No. 803SC1065.

Court of Appeals of North Carolina.

April 21, 1981.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. James Peeler Smith, Raleigh, for the State.

Bowers & Sledge by E. Lamar Sledge and Robert G. Bowers, New Bern, for defendant-appellant.

BECTON, Judge.

Defendant first contends that the court erred in permitting Woodfork to testify about a conversation he had with Carolyn Hickman at the First Baptist Church concerning the stolen stereo speakers. The basis for the hearsay assignment of error is as follows:

Q. Now, Mr. Woodfork, prior to the third of April, had someone talked to you about some speakers?

MR. SLEDGE: Objection.

THE WITNESS: There was a lady at the First Baptist Church that said she was missing some speakers.

MR. SLEDGE: Objection.

MR. BESWICK: Your Honor, may we approach the bench?

THE COURT: Yes.

(A bench conference was held without the hearing of the court reporter or the jury.)

THE COURT: Sustained.

BY MR. BESWICK: Mr. Woodfork, you say prior to the third of April you had a conversation with some lady; is that right?

A. Yes, sir.

Q. What was her name?

A. Carolyn Hickman.

MR. SLEDGE: Objection.

THE COURT: Overruled.

BY MR. BESWICK: Carolyn what?

A. Hickman.

I told Harper I was interested in them. Then I told him I would be back in a few minutes. I left and went to the First Baptist Church. I asked Carolyn Hickman if she had a picture of the speakers. She said yes, and showed me the picture. Then she called Capt. McConnell (of the New Bern Police Department).

"It is universally accepted that the testimony by a witness of what another person said is inadmissible hearsay if it is offered into evidence to prove the truth of the matter being asserted." State v. Grier, N.C.App. ___, ___, 275 S.E.2d 560, 563 (1981). See also 1 Stansbury N.C. Evidence, § 138 (2d ed. Brandis Rev. 1973). However, a statement offered for any other purpose than to prove the truth of the matter asserted therein is not inadmissible as hearsay. 1 Stansbury, supra, at §§ 138 and 141. The testimony concerning what Carolyn Hickman told Woodfork was offered to explain Woodfork's subsequent conduct. Hence, it was not subject to objection as hearsay. See, e. g., State v. Shadding, 17 N.C.App. 279, 194 S.E.2d 55, cert. denied, 283 N.C. 108, 194 S.E.2d 636 (1973); State v. Miller, 15 N.C.App. 610, 190 S.E.2d 722, cert. denied, 282 N.C. 154, 191 S.E.2d 603 (1972), cert. denied, Epps v. North Carolina, 410 U.S. 990, 93 S. Ct. 1508, 36 L. Ed. 2d 189 (1973). The testimony merely showed why Woodfork later got in touch with Carolyn Hickman after defendant had approached him concerning whether he might be interested in buying the speakers.

Moreover, with respect to the first and second "objections" noted above, no motions to strike were made and no cautionary instructions were sought. Since the trial court sustained the objections to the testimony, the defendant has no further grounds to complain. State v. Dickens, 11 N.C.App. 392, 181 S.E.2d 257 (1971).

Woodfork testified that he was attempting to obtain the stolen speakers in order to return them to the church and that he did not intend to keep them. The defendant contends that this testimony should have been excluded as a self-serving declaration. We disagree. Indeed, the thrust of the entire testimony of Woodfork was that he was helping the church to recover the stolen property—he knew that the church's speakers had been stolen before he met defendant on 3 April 1980. After defendant showed him the speakers, Woodfork went to the church and talked to Carolyn Hickman and was shown photographs of the speakers; he was aware that Ms. Hickman had called the police with regard to his inquiry; and he recognized the speakers defendant showed him as being similar to the ones that were stolen from the church. Even if Woodfork's statement could be termed "self-serving," "[n]ot every erroneous ruling on the admissibility of evidence, however, will result in a new trial." Board of Education v. Lamm, 276 N.C. 487, 492, 173 S.E.2d 281, 285 (1971).

It is also important to note here that the phrase "self-serving declaration" does not describe an independent ground of objection in North Carolina. "Hearsay statements are sometimes excluded on the ground that they are ``self-serving'." 1 Stansbury, supra, § 140 at 466. However, if a statement is hearsay and does not fall within one of the hearsay exceptions, it is excluded, whether self-serving or not. If a statement fits an exception, then it is admissible even if self-serving, unless the particular exception prohibits it. (For example, declaration against interest.) See Trust Co. v. Wilder, 255 N.C. 114, 120 S.E.2d 404 (1961); 1 Stansbury, supra, § 140.

Defendant also contends he is entitled to a new trial because the "[w]itness Cheatham ... was allowed to testify that he had priced speakers of similar size or type, and that in his opinion the two speakers were of a value of about $200 each." Although an exception is set out in the record, defendant at no point objected to, or moved to strike, the testimony of the witness Cheatham. The competency of this testimony is therefore not properly before this court. Cogdill v. Highway Comm. and Westfeldt v. Highway Comm., 279 N.C. 313, 182 S.E.2d 373 (1971); State v. Moore, 27 N.C.App. 284, 218 S.E.2d 499 (1975). Moreover, the testimony establishing the value of the speakers at $200 each was elicited by the defendant himself on cross examination. He cannot, then take exception to this testimony. State v. Fletcher, 279 N.C. 85, 96, 181 S.E.2d 405, 413 (1971). In further support of the decision we reach, the record reveals that Mr. Cheatham was a trustee of the church and was apparently familiar with the purchase of the sound system—he testified that the speakers were a part of the sound system at the church having an installation cost of $1,200. Additionally, the speakers were present in the courtroom where the jury could see them and decide for themselves whether Cheatham's evaluation of the speakers was reasonable. When all of these factors are considered, admission of the testimony, even over objection, would not have been error. Veach v. American Corp., 266 N.C. 542, 146 S.E.2d 793 (1966); Hopkins v. Comer, 240 N.C. 143, 81 S.E.2d 368 (1954).

Defendant further contends that the court erred in denying his motion, made at the close of the State's case, to dismiss for insufficiency of the evidence. In support of his contention, he argues that there was no direct evidence of theft by breaking and entering and that the only evidence of a felony theft was the "opinion of a non-expert witness [Bradley Cheatham] ... [which was not] competent evidence of value...."

We note first that defendant's motion was not renewed at the close of all the evidence. Since defendant chose to put on evidence, error in the denial of the motion at the close of the State's evidence is deemed waived. State v. Davis, 282 N.C. 107, 191 S.E.2d 664 (1972); State v. Fountain, 282 N.C. 58, 191 S.E.2d 674 (1972). Nonetheless, "the sufficiency of all evidence introduced in a criminal case is reviewable on appeal without regard to whether a motion has been made during trial...." G.S. 15A-1227(d) and G.S. 15A-1446(d)(5); State v. Alston, 44 N.C.App. 72, 73, 259 S.E.2d 767, 768 (1979).

Defendant was charged with feloniously possessing stolen property in violation of G.S. 14-71.1. The indictment could have supported proof either that defendant knew or had reason to know that the property was feloniously stolen pursuant to a breaking and entering, or otherwise by means described in G.S. 14-72(b),^[1] or that the property stolen was of a value in excess of $400. The evidence presented at the trial would have supported a verdict under either theory. Since we find no error in Bradley Cheatham's testimony establishing that the speakers were valued "about" $400, there was evidence to support the conclusion that the goods were of a value of more than $400. The jury was free to consider Cheatham's estimation in light of their own appraisal from viewing the speakers in the courtroom. "An estimate has been held to be some evidence of value." State v. Cotton, 2 N.C.App. 305, 311, 163 S.E.2d 100, 104 (1968).

Mr. Cheatham also testified about the discovery of the theft. Officer Dunn of the New Bern Police Department testified, without objection, that a report of the larceny had been made by church officials on 28 March 1980. Moreover, the defendant himself admitted on direct examination that he fled because he suspected that the speakers might have been stolen. This evidence taken together is sufficient to support a finding by the jury that the defendant knew or had reason to know that the goods had been stolen pursuant to a breaking and entering.

Defendant asserts that the trial court committed prejudicial error in failing to instruct the jury, sua sponte, that it should carefully scrutinize the testimony of the alleged accomplice, Woodfork. Instructions on the testimony of an accomplice are a subordinate feature of a case. In the absence of a special request, the court need not charge the jury to carefully scrutinize the testimony of an accomplice. State v. Guffey, 265 N.C. 331, 144 S.E.2d 14 (1965); State v. Grant, 40 N.C.App. 58, 252 S.E.2d 98 (1979). The record on appeal contains no such request by the defendant. Therefore, this assignment of error is meritless. State v. Roux, 266 N.C. 555, 563, 146 S.E.2d 654, 660 (1966); State v. Sealey, 41 N.C.App. 175, 177, 254 S.E.2d 238, 240 (1979).

Defendant finally asserts that he is entitled to a new trial because the court failed to instruct, sua sponte, on establishing guilt by circumstantial evidence. Again, in the absence of a request for an instruction on this matter, the court is not required to so instruct the jury. State v. Hood, 294 N.C. 30, 44, 239 S.E.2d 802, 810 (1978).

In this trial, we find

No error.

VAUGHN and WELLS, JJ., concur.

NOTES

[1] G.S. 14-72(b): The crime of larceny is a felony, without regard to the value of the property in question, if the larceny is:

(1) From the person; or

(2) Committed pursuant to a violation of G.S. 14-51 [First and second degree burglary], 14-53 [Breaking out of dwelling house burglary], 14-54 [Breaking or entering buildings], or 14-57 [Burglary with explosives]; or

(3) Of any explosive or incendiary device or substance ....

(4) Of any firearm ....

(5) Of any record or paper in the custody of the North Carolina State Archives as defined by G.S. 121-2(7) and 121-2(8).