State v. Brewington , 1982 N.C. App. LEXIS 2812 ( 1982 )

MARTIN (Robert M.), Judge.

Defendant appeals his conviction of misdemeanor larceny, assigning as error the trial court’s denial of his motion to dismiss based on insufficiency of the evidence. Defendant also assigns as error the admission of what he styles as hearsay testimony concerning an offer by his aunt to make restitution, and the denial of his motion for mistrial upon the admission of this testimony. For the reasons set forth below, we find no error.

Defendant contends that there was insufficient evidence upon which to establish his identity as the perpetrator of the crime. Four witnesses offered testimony describing a person who was seen taking several packages of meat from a Goldsboro Safeway Store. Mr. Boyd, an eyewitness to the theft, watched as a man wearing a brown coat, jeans, and tennis shoes, entered the store, placed the meat inside his coat, and attempted to leave without paying for the items. Mr. Boyd followed the man, calling to him to stop, and after losing sight of him for a few seconds, discovered him under a car. Three Safeway employees also witnessed the “exit” of the thief. None of the descriptions given was detailed, although each noted that the thief was wearing a dark brown or maroon jacket.

The defendant testified that he had parked his car in the Safeway parking lot to repair the muffler; that while waiting for the muffler to cool, he asked a Mr. Bishop for a light for his cigarette; that Mr. Boyd arrived just as he finished wiring the muffler up. Mr. Bishop verified that he had given the defendant a light and that defendant was then wearing a burgundy coat with a black fur collar, brown pants, black shoes and a brown and beige checked shirt. Mr. Bishop was sitting in his car when the thief ran from the store. He testified that he thought the man who ran from the store was dressed differently from the man to whom he had given a light, but he could not be sure.

Whatever discrepancies and uncertainness existed in the witness’s descriptions of the defendant were matters properly presented for jury resolution. Mr. Boyd had an opportunity to view the thief in a well-lighted store. He testified that when the defendant came out from under the car he “knew it was him (the thief) ... I recognized his face and his coat and jeans and tennis shoes.” The trial court did not err in submitting the case to the jury where there was substantial competent evidence to identify the defendant as the perpetrator of the crime. State v. Taylor, 804 N.C. 249, 283 S.E. 2d 761 (1981).

On the evening after defendant’s arrest, he and his aunt returned to the Safeway store. In the presence of the defendant, his aunt offered to pay for the meat if Mr. Burnette, the store manager, would drop the charges. After Mr. Burnette refused to accept the offer, defendant denied the theft. At trial, Mr. Burnette was permitted, over objection, to testify concerning this conversation. Defendant contends the admission of the testimony was error as inadmissible hearsay. The State argues that the testimony was properly admitted as an admission by silence, or under the theory of a compromise offer, thereby excepting it from the hearsay rule.

“In criminal cases there is no policy favoring compromises, hence no rule excluding offers of compromise.” 2 Stansbury’s N.C. Evidence § 180 (Brandis Rev. 1973). Thus the making of the offer to compromise may be considered as substantive evidence of guilt if the offer was made by the defendant, at his request, or with his authorization. State v. Lunsford, 177 N.C. 117, 97 S.E. 682 (1919). See generally 79 A.L.R. 3d 1156. Since direct evidence of a defendant’s authorization of an attempt by a third person to make an offer to compromise or influence a witness not to testify is rarely available, circumstantial evidence may be sufficient to establish the fact. Id. Under the facts of this case, we find the evidence sufficient to show that defendant authorized his aunt to make the offer. We consider the family relationship between the two, the fact that defendant’s aunt posted bond for him, that she took him to the Safeway store, that the offer was made in his presence, and that he remained silent while the offer was made.

No error.

Chief Judge MORRIS concurs. Judge Becton concurs in part and dissents in part.