State v. Aleem , 49 N.C. App. 359 ( 1980 )

271 S.E.2d 575 (1980)

STATE of North Carolina
v.
Kareem Abdu ALEEM and Ruben Benjamin Snipes.

No. 8010SC449.

Court of Appeals of North Carolina.

November 4, 1980.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Thomas B. Wood, Raleigh, for the State.

Hatch, Little, Bunn, Jones, Few & Berry by E. Richard Jones, Jr., Raleigh, for defendant Aleem.

J. Franklin Jackson, Raleigh, for defendant Snipes.

HARRY C. MARTIN, Judge.

Both defendants assign as error the trial court's denial of their motion for nonsuit on the grounds of insufficiency of evidence to sustain a verdict. Defendants contend that the evidence was insufficient to link defendants to the transactions which gave rise to the charge of conspiracy, that there was insufficient proof to show an agreement between the parties, and that the circumstantial evidence offered by the state did not point unerringly to the existence of a conspiracy.

When the state attempts to prove a criminal conspiracy, "it must show an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way." State v. Jones, 47 N.C.App. 554, 559, 268 S.E.2d 6, 10 (1980). Accord, State v. Parker, 234 N.C. 236, 66 S.E.2d 907 (1951); State v. Whiteside, 204 N.C. 710, 169 S.E. 711 (1933); State v. Wrenn, 198 N.C. 260, 151 S.E. 261 (1930).

An agreement between the parties charged is an essential element of conspiracy. In State v. Phillips, 240 N.C. 516, 521, 82 S.E.2d 762, 766 (1954), the Supreme Court of North Carolina quoted the language of the Supreme Court of Indiana in Johnson v. State, 208 Ind. 89, 194 N.E. 619:

"There must be an agreement or joint assent of the minds of two or more before there can be a conspiracy. Such agreement or joint assent of the minds need not be proved by direct evidence.... There must be, however, an agreement, and there must be such evidence to prove the agreement directly or such a state of facts that an agreement may be legally inferred. Conspiracies cannot be established by a mere suspicion, nor does evidence of mere relationship between the parties or association show a conspiracy."

Direct proof of conspiracy is rarely available, so the crime must generally be proved by circumstantial evidence. State v. Cooley, 47 N.C.App. 376, 268 S.E.2d 87 (1980). Because the presence of a common design is often extremely difficult to detect, 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, they point unerringly to the existence of a conspiracy." State v. Whiteside, supra at 712, 169 S.E. at 712. Factors which may be considered include the results accomplished, the situation of the parties, their antecedent relationships, the surrounding circumstances and the inferences legitimately deducible therefrom. Id. The circumstantial evidence must point unerringly to the illegal combination, Wrenn, supra, and create in the minds of the jurors a moral certainty of the defendants' guilt, to the exclusion of any other reasonable hypothesis. Parker, supra. Accord, State v. McCullough, 244 N.C. 11, 92 S.E.2d 389 (1956). See also, State v. Webb, 233 N.C. 382, 64 S.E.2d 268 (1951); State v. Miller, 220 N.C. 660, 18 S.E.2d 143 (1942); State v. Madden, 212 N.C. 56, 192 S.E. 859 (1937); State v. Stiwinter, 211 N.C. 278, 189 S.E. 868 (1937).

In the case sub judice there was sufficient evidence to lead the jury to the conclusion that defendant Snipes was guilty of the crime of filing a false insurance claim and that both Snipes and Aleem were guilty of conspiring to so do. The state presented evidence of active participation by the defendants in transactions that could not arguably appear innocent. Their appearing individually and together to file repeated claims for identical damage to the same automobile, along with inexplicable frequent title transfers, constitutes evidence that would impute wrongdoing. The in-court identification of the two brothers and testimony by several witnesses is adequate to link defendants to the illicit acts, negating their argument that guilt may have been attributed solely because of their relationship with each other.

"Upon motion for a nonsuit in a criminal action, the court must consider the evidence in the light most favorable to the State, and resolve all contradictions and discrepancies in its favor, giving it the benefit of every reasonable inference which can be drawn from the evidence." State v. Cooley, supra at 390-91 , 268 S.E.2d at 92. Defendants' motions for nonsuit were properly denied.

Defendants' second assignment of error is that the judge made statements in the presence of the jury tending to add to the probative force of a witness's testimony, thereby expressing an opinion as to the credibility of the witness. The incident to which defendants except occurred during the cross-examination of Jerry Thompson Dunn:

I talked to Mr. Aleem at my office in Burlington. As to which one of these three men I did talk to, I wouldn't recall really.

Q. You don't know?

COURT: He knows a man by the name, that gave his name as Kareem Abdu.

Defendants argue that "[t]he Court, in effect, provided a positive identification of the appellant where none existed," and added credibility to the witness. Defendants, in their briefs, correctly cite statutes and cases supporting the rule which prohibits a judge from expressing opinion as to the credibility of a witness. However, in this instance Judge Hobgood merely clarified what the witness had already stated, that he did not recognize either defendant, but knew Aleem only by name. A judge may question a witness to clarify his testimony and to provide the jury with guidance in their considerations. See State v. Alston, 38 N.C.App. 219, 247 S.E.2d 726 (1978), cert. denied, 296 N.C. 586, 254 S.E.2d 30 (1979); State v. White, 37 N.C.App. 394, 246 S.E.2d 71 (1978). It can hardly be considered prejudicial when the court intervenes slightly to interpret the examination of a witness to ensure that the jury understands that the testimony was only a name recognition of a defendant, not a personal nor in-court identification. This assignment of error is overruled.

Finally, defendants argue it was erroneous to admit into evidence state's Exhibit Number 11, "a release in the amount of $1,198.00 and a cash settlement request showing there is no lien on the car and the coverage will remain in force." Defendants contend that the exhibit was irrelevant and prejudicial. We find no merit in defendants' argument. The document was signed in the name of Kareem Abdu Aleem by an individual identifying himself as the same. The exhibit is circumstantially relevant in establishing the identity of defendant Aleem as one of the conspirators. "[E]vidence is relevant if it has any logical tendency, however slight, to prove a fact in issue in the case." 1 Stansbury's N.C. Evidence § 77 (Brandies rev. 1973). Identity may be proved by circumstantial evidence in the same manner as other facts. See State v. Williams, 276 N.C. 703, 174 S.E.2d 503 (1970), rev'd death penalty, 403 U.S. 948, 91 S.Ct. 2290, 29 L.Ed.2d 860 (1971). Defendants make no showing that the document was unfairly prejudicial. Because of its relevancy, it was properly admitted into evidence.

We find that defendants' received a trial free of prejudicial error.

No error.

HEDRICK and ROBERT M. MARTIN, JJ., concur.