State v. Hart

HEDRICK, Chief Judge.

Defendant assigns error to the denial of her motions to dismiss and argues that the evidence is insufficient to raise an inference that she committed either offense charged or that she “acted in concert” with Whittington to commit either offense.

It is well settled in this State that a defendant may be convicted of a crime if she is present at the scene of the crime and the evidence is sufficient to show she 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. Giles, 83 N.C. App. 487, 490, 350 S.E.2d 868, 870 (1986), disc. review denied, 319 N.C. 460, 356 S.E.2d 8 (1987); State v. Joyner, 297 N.C. 349, 357, 255 S.E.2d 390, 395-96 (1979). Further, “if two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose.” State v. Westbrook, 279 N.C. 18, 41, 181 S.E.2d 572, 586 (1971), death penalty vacated, 408 U.S. 939, 33 L.Ed.2d 761 (1972). See State v. Oliver, 302 N.C. 28, 55, 274 S.E.2d 183, 200 (1981); State v. Joyner, 297 N.C. at 357-58, 255 S.E.2d at 395-96.

The evidence in the present case, when considered in the light most favorable to the State, is sufficient to permit the jury to' find that defendant and Whittington, pursuant to a common plan and scheme to rob defendant’s grandfather, went to Winebarger’s home, and while defendant sat at the kitchen table exposing her breasts in order “to distract him,” Whittington obtained a baseball bat with which he “began to beat” Winebarger, knocking him to the floor, and that Whittington took the victim’s wallet, that Whittington and defendant then left Winebarger’s residence and left the State. We hold that these facts, when found by the jury, are sufficient to support the verdict that defendant was guilty of the armed robbery and second degree murder of her grandfather.

Defendant cites State v. Reese, 319 N.C. 110, 353 S.E.2d 352 (1987) in support of the proposition that one who is alleged to have acted in concert with a perpetrator is guilty as a principal only if the requisite mens rea is shown as to each defendant. In Reese, the court was discussing the specific intent, mens rea, required for a conviction of First Degree Murder and the applicability of G.S. 14-17, the “felony murder rule,” to a finding of specific intent. Thus Reese has no application to the present case and defendant’s assignment of error has no merit.

Defendant next argues that the trial court erred by not allowing defense witnesses Brenda Minton and Judith Heskett to testify that defendant “was not acting in concert with Whittington.” Defendant offered the testimony of Heskett, defendant’s stepmother, that Karen told her on 14 September 1989 that she “couldn’t get away from Whittington,” that Whittington “had already beat her up [and] busted her mouth,” that Whittington “had guns, was doing terrible things, and had threatened to kill her mother and children if she tried anything else.” Minton, defendant’s mother, testified that Karen told her on 15 September 1989, that Whittington “tried to kill her,” that Whittington “held the gun on her all the way up there,” that she “didn’t think [she’d] make it here,” that Whittington “wouldn’t let her go,” that she tried to leave “but he wouldn’t let me go,” and that she “wanted to take out warrants for Whittington for assault and kidnapping.” Upon objection and motion to strike, the trial court instructed the jury not to consider Minton’s testimony.

There is no merit in defendant’s contention that this testimony was relevant to the determination of whether defendant was “acting in concert” with Whittington on the date of the offenses for which she was convicted. Karen spoke to Heskett over the telephone on 14 September 1989 and to Minton on 15 September 1989. Both conversations detailed events following Winebarger’s murder. Evidence having no tendency to prove a fact at issue in the case is not relevant and is properly excluded. G.S. 8C-1, Rules 401 and 402 (1983). We find no error in the exclusion of either Minton’s or Heskett’s testimony.

Defendant further contends that the trial court erred in denying the motion to allow her attorney to withdraw and testify with respect to his statements to defendant regarding the substance of the State’s case. Defendant argues that her attorney’s testimony was necessary to discredit Logan’s testimony by showing that defendant’s statements to Logan were actually Karen’s attempt to explain the State’s theory of the case which had been told to her by her lawyer.

A motion to allow an attorney to withdraw his representation of a criminal defendant is addressed to the discretion of the trial judge. State v. McGee, 60 N.C. App. 658, 299 S.E.2d 796 (1983). Such a ruling will not be disturbed absent an abuse of discretion. State v. Locklear, 322 N.C. 849, 356, 368 S.E.2d 377, 381 (1988). The trial judge conducted extensive voir dire and determined that other witnesses were available to present the evidence being tendered by defense counsel. There is no showing of discretionary abuse.

Defendant next argues that she is entitled to a new trial due to the trial court’s erroneous admission of certain statements by S.B.I. Agent Brown and S.B.I. Agent Stubbs. These statements were offered by the State to corroborate the testimony of Sheila Bentley and Sharon Logan. Defendant now contends that the admission of these statements was improper as the statements were inconsistent with the trial testimony of Bentley and Logan.

There was no motion made by defendant at trial to strike those particular portions of testimony by Brown and Stubbs. Defendant was requiréd to object and move to strike those portions of the statements which she felt did not corroborate previous testimony. State v. Warren, 289 N.C. 551, 223 S.E.2d 317 (1976); Gibson v. Whitton, 239 N.C. 11, 79 S.E.2d 196 (1953). This she failed to do and her contentions herein therefore have no merit.

Finally, defendant argues that she is entitled to a new sentencing hearing because the trial court abused its discretion in ordering the presumptive sentence in both cases and in ordering that the two terms run consecutively. Defendant contends that the court abused its discretion by failing to find mitigating factors despite substantial uncontradicted evidence of such factors.

It is clear that, since the trial judge imposed the presumptive sentence for both the armed robbery and the second degree murder convictions, he was not required to consider either aggravating or mitigating factors. G.S. 15A-1340.4(b). See State v. Horne, 59 N.C. App. 576, 297 S.E.2d 788 (1982) and State v. Cain, 79 N.C. App. 35, 338 S.E.2d 898, disc. review denied, 316 N.C. 380, 342 S.E.2d 899 (1986). A decision to impose a presumptive sentence, as well as a decision that two or more terms should be served consecutively, is left to the trial court’s discretion. State v. Cain, supra, State v. Harper, 96 N.C. App. 36, 384 S.E.2d 297 (1989). See G.S. 15A-1354(a). The defendant has not shown any indication of abuse of that discretion.

Affirmed.

Judges ORR and WALKER concur.