State v. Withers , 111 N.C. App. 340 ( 1993 )

432 S.E.2d 692 (1993)

STATE of North Carolina
v.
Colin Glenn WITHERS.

No. 9227SC547.

Court of Appeals of North Carolina.

August 3, 1993.

Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. Don Wright, Raleigh, for the State.

James R. Carpenter and David A. Phillips, Gastonia, for defendant-appellant.

MARTIN, Judge.

Defendant contends that the trial court erred by (1) admitting hearsay testimony by the State's witness, Rita Jones; (2) excluding a tape recording offered by defendant to impeach Ms. Jones' testimony; (3) denying defendant's motion to dismiss the charges of the possession of stolen weapons at the close of all the evidence, and (4) denying defendant's motion to set aside the verdict. For the reasons stated below, we find no prejudicial error.

By his first assignment of error, defendant contends that the trial court committed prejudicial error by allowing State's witness, Rita Jones, to testify to hearsay statements made by other members of the rescue crew during the evening of 6 May 1989, and then refusing to strike the testimony when the State failed to make out a prima facie case of conspiracy. We disagree.

Rule 801(d) of the North Carolina Rules of Evidence provides that "[a] statement is admissible as an exception to the hearsay rule if it is offered against a party and it is ... (E) a statement by a coconspirator of such party during the course and in furtherance of the conspiracy." N.C.Gen. Stat. § 8C-1, Rule 801(d)(E) (1992). State v. Tilley, 292 N.C. 132, 232 S.E.2d 433 (1977). Statements of coconspirators are admissible against other members of the conspiracy so long as a prima facie case of conspiracy is established independently of the statements sought to be admitted. Id., at 138, 232 S.E.2d at 438; See also State v. Brewington, 80 N.C.App. 42, 341 S.E.2d 82, disc. review denied, 317 N.C. 708, 347 S.E.2d 449 (1986). A coconspirator's statement may be admitted before the establishment of a prima facie case of conspiracy conditioned upon a subsequent showing of conspiracy before the close of the State's evidence. Tilley, 292 N.C. at 138-39, 232 S.E.2d at 438-39; Brewington, 80 N.C.App. at 49, 341 S.E.2d at 86-87. In order to use a coconspirator's statement against other coconspirators, the State must show that "``(1) a conspiracy existed; (2) the acts or declarations were made by a party to it and in pursuance of its objectives; and (3) while it was active, that is, after it was formed and before it ended.'" Tilley, 292 N.C. at 138, 232 S.E.2d at 438.

A conspiracy is "an express agreement or mutual implied understanding between defendant and others to do an unlawful act or a lawful act by unlawful means." State v. Lyons, 102 N.C.App. 174, 183, 401 S.E.2d 776, 781, affirmed, 330 N.C. 298, 412 S.E.2d 308 (1991). It may be shown by direct or circumstantial evidence. State v. Collins, 81 N.C.App. 346, 344 S.E.2d 310, appeal dismissed, 318 N.C. 418, 349 S.E.2d 601 (1986). A conspiracy "``may be, and generally is, established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, ... point unerringly' " to its existence. State v. Fink, 92 N.C.App. 523, 530, 375 S.E.2d 303, 307 (1989), quoting State v. Rozier, 69 N.C.App. 38, 49, 316 S.E.2d 893, 901, cert. denied, 312 N.C. 88, 321 S.E.2d 907 (1984). In determining the sufficiency of the evidence to establish a conspiracy, the evidence is considered in the light most favorable to the State. Collins, supra.

At trial, the State sought to introduce, through the testimony of Rita Jones, statements made by members of the crew other than defendant with respect to the jewelry and guns. She testified, over objection, that she had asked her husband, Tony Jones, what he was going to do with the jewelry and that his response was "[k]eep it of course." She also testified that one of the other crew members, Richard Mills, agreed with defendant that everyone should keep quiet about the property and that "[t]he insurance will pay for it." After defendant and Richard Mills left the building, Ms. Jones testified that the following exchange took place between herself, her husband Tony Jones, and Arthur Greene:

A. Tony and Arthur waited ``till everybody else had left the building and they proceeded to put the jewelry on the table, looking through it, asked me if I wanted any, and I said, "No not really" because you don't—I told them, I said, "You don't know if the woman's dead or alive. How can you take her jewelry?"

Q. Did they say anything in response to that?

A. He just said—repeated what was said before, ``The insurance will pay for it, don't worry about it'.

In order for Ms. Jones' testimony to be admissible pursuant to Rule 801(d)(E), the burden was upon the prosecution to establish a prima facie case of conspiracy through evidence independent of these statements before the close of the State's evidence. We hold that the State produced sufficient evidence to carry its burden. Through other testimony by Ms. Jones, the State showed that five members of the rescue crew, working together on the night in question, had taken items from the Pizzoli residence and put them in the rescue truck, that they had gone through various checkpoints set up by law enforcement officers without disclosing that they had the property, and that when they went home after they had completed their work, each of them had taken some of the items with them. In our view, these acts, considered in the light most favorable to the State, are sufficient to show an implied understanding between the crew members to unlawfully possess property which had been taken from the Pizzoli residence. Since the State made a prima facie showing of conspiracy, Ms. Jones' testimony with respect to the coconspirator statements was properly admitted. Defendant's first assignment of error is overruled.

Defendant contends in his second assignment of error that the trial court erred by denying defendant the opportunity to play before the jury a tape recording of a telephone call by the State's witness, Rita Jones. We find no error in the exclusion of the tape.

In State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991), our Supreme Court held that instead of the seven-step test applied in State v. Lynch, 279 N.C. 1, 181 S.E.2d 561 (1976), only Rule 901 of the North Carolina Rules of Evidence has to be satisfied for admission into evidence of a tape recording. Stager and Rule 901 only require personal knowledge for authentication. Id.; See also N.C.Gen.Stat. § 8C-1, Rule 901(b) (1992). Rule 901 provides in pertinent part:

(a) General Provision.—The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

(b) Illustrations.—By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(1) Testimony of Witness with Knowledge.—Testimony that a matter is what it is claimed to be.

. . . . .

(5) Voice Identification.—Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

Once authenticated, the tape recording is admissible if legally obtained and contains competent evidence. Stager, 329 N.C. at 316-17, 406 S.E.2d at 898.

In the case at bar, defendant attempted to introduce a tape recording to impeach the testimony of Rita Jones and to show her motive to testify against him. On direct examination, Ms. Jones testified that she did not threaten her husband or anyone at the Stanley Rescue Squad. Defendant, however, offered a telephone answering machine tape recording in which Ms. Jones profanely threatened to go to the authorities in Lincolnton and report her husband, who had been present when the property had been taken and when it had been divided. Ms. Jones' former mother-in-law testified, based on her personal knowledge, that the voice on the tape was that of Ms. Jones. The witness could not pinpoint the date of the tape, but said it had been made in early August 1989. The State and defendant later stipulated to the date of the tape recording. The trial court, however, refused to admit the tape recording holding that defendant had not provided a proper foundation.

Applying Stager and Rule 901(b), we conclude that the trial court erred by excluding this tape recording based on improper foundation. The witness had sufficient personal knowledge of Ms. Jones' voice to properly identify her voice from a prior relationship, and the State and defendant stipulated to the date of the tape recording. We hold, however, that the tape was properly excluded for other reasons.

Rule 401 of the North Carolina Rules of Evidence defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C.Gen.Stat. § 8C-1, Rule 401 (1992). Evidence offered to show a defect in the witness' truthfulness or veracity is relevant for impeachment. 1 Brandis on North Carolina Evidence, § 38 at 192 (3d ed. 1988). Generally, relevant evidence is admissible. N.C.Gen.Stat. § 8C-1, Rule 402 (1992). "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." N.C.Gen.Stat. § 8C-1, Rule 403 (1992) (emphasis added). The decision to allow or exclude evidence under this rule is a matter within the sound discretion of the trial judge and may be reversed for an abuse of discretion only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision. State v. Jones, 89 N.C.App. 584, 367 S.E.2d 139 (1988).

In the present case, the State suggests that the potential for prejudice outweighed the usefulness of defendant's tape because Ms. Jones' recorded statement was heavily laden with the emotion of a recently terminated marriage, and because she was intoxicated at the time that the tape was made. Ms. Jones' recorded message, directed to her husband, not defendant, was: "[d]rinking or whatever you want to call it. I might be f____ed up, but I know about all your g____n lies. I'm going to Lincolnton and I'm going to put your f____ ing ass under the f____ing jail." While the tape in question directly contradicts Ms. Jones' earlier testimony denying making threats to "get back" at her husband, the tape does not tend to prove or disprove any of the essential elements of either crime charged. Furthermore, the threats made on the tape are not directed at defendant. On direct examination, defendant's witness, Joyce Jones, testified to the threat which Ms. Jones made, so that the impeaching evidence was disclosed to the jury. Considering these factors and the extreme profanity contained on the tape, we believe the tape posed a danger of misleading the jury, causing undue delay and being cumulative. Id. Therefore, we hold that the trial judge did not abuse her discretion in excluding the tape.

Defendant contends in his third assignment of error that the trial court erred in denying defendant's motion to dismiss the charge of felonious possession of a stolen firearm at the close of all the evidence because the State failed to prove that defendant possessed any weapon with a dishonest purpose. We disagree.

In ruling on a motion to dismiss in a criminal action, the trial judge must consider the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from the evidence. State v. Brown, 81 N.C.App. 622, 344 S.E.2d 817, disc. review denied, 318 N.C. 509, 349 S.E.2d 867 (1986). Conflicts in the evidence are for the jury to decide. Id. The trial court decides if there is substantial evidence of each element of the crime charged. Id. Substantial evidence is that which a reasonable mind would accept as sufficient to support a conclusion. Id.

From our review of the record, we find there is substantial evidence that defendant possessed the firearm with a dishonest purpose. Dishonest purpose is an essential element of possession of stolen goods. See generally State v. Perry, 305 N.C. 225, 287 S.E.2d 810 (1982). Dishonest purpose is equivalent to felonious intent. State v. Parker, 316 N.C. 295, 341 S.E.2d 555 (1986). Intent can be proven by direct or circumstantial evidence. State v. Bell, 285 N.C. 746, 208 S.E.2d 506 (1974). There is no need to show that defendant intended to personally gain from his action. Parker, supra.

In the light most favorable to the State, several factors, supported by uncontradicted evidence, indicate a dishonest purpose on the part of defendant. After defendant found the Browning 9mm pistol at the Pizzoli home, he hid it under the seat of the rescue truck. He passed several roadblocks where he could have turned the pistol over to law enforcement authorities. Defendant exercised dominion over the pistol by cleaning the pistol, keeping the pistol for four months, and then giving the pistol to his uncle. He contacted the police several times to check on the status of the pistol to see if the pistol had been reported stolen or missing. He also participated in transporting the other firearms taken from the Pizzoli residence and told other members of the crew that they could keep these weapons. When contacted by the investigating officers, defendant initially denied having any knowledge of the missing items. These factors, taken together, support a reasonable inference of dishonest purpose.

The trial court was correct in not allowing the motion to dismiss because this question was for resolution by the jury. This assignment of error is overruled.

The defendant's final assignment of error is that the trial court committed reversible error in denying defendant's motion to set aside the verdict upon the grounds that the jury's verdicts were inconsistent as a matter of law. We disagree.

By enacting the possession of stolen goods statute, the Legislature intended to "plug a loophole in the law as it then existed when one was found in possession of stolen goods and the State was unable to prove either larceny or receiving." Perry, 305 N.C. at 236, 287 S.E.2d at 817. The State does not have to prove who committed the larceny, nor is a larceny conviction a prerequisite to a jury finding a defendant guilty of felonious possession of stolen goods. Id. at 235, 287 S.E.2d at 816. In fact, the State may indict and try a defendant for larceny and possession of the same property, but a defendant may only be convicted of one of these offenses. Id.; State v. Williams, 65 N.C.App. 373, 309 S.E.2d 266 (1983), disc. review denied, 310 N.C. 480, 312 S.E.2d 890 (1984).

Applying the foregoing principles to the present case, the jury's verdicts of not guilty of felonious larceny of a firearm and guilty of felonious possession of a stolen firearm are not inconsistent as a matter of law. This assignment of error has no merit.

No error.

EAGLES and JOHN, JJ., concur.