Appeals by defendants from Herring, Judge. Judgments entered 17 December 1980 in Superior Court, Cumberland County. Heard in the Court of Appeals 14 October 1981.
Becton, Judge. Chief Judge Morris and Judge Arnold concur.
Defendant Gilliam argues that the trial court committed reversible error when it admitted testimony by Officer Burgess of the Cumberland County Sheriff's Department which, he contends, tended to clarify statements made by Nellene Cole, the prosecuting witness.
Our courts have been most liberal in allowing testimony to corroborate a witness. Our Supreme Court, in State v. Rogers, 299 N.C. 597, 601, 264 S.E.2d 89 (1980), summarized the law of corroborative testimony thusly:
Corroborative testimony is testimony which tends to strengthen, confirm, or make more certain the testimony of another witness. Where testimony which is offered to corroborate the testimony of another witness does so substantially, it is not rendered incompetent by the fact that there is some variation. It is the responsibility of the jury to decide if the proffered testimony does, in fact, corroborate the testimony of another witness. [Citations omitted.]
The testimony of Officer Burgess, while containing some slight variations, substantially corroborated the testimony of Mrs. Cole. Mrs. Cole testified that she identified photographs of Billy Ray Locklear and Milton Locklear from the first set of composites offered by Officer Burgess and that she later identified Gilliam's photograph when she was shown the second set of composites. She further testified that she identified Gilliam's photograph within two minutes of being shown it, and that it took her one minute to pick out Milton Locklear's photograph and two minutes to pick out Billy Ray Locklear's photograph. She testified that Billy Ray Locklear was not one of the robbers but that she identified
him because he had been in the store earlier that day. Further, she asserted repeatedly that Gilliam was present and had committed most of the acts constituting the robbery.
Officer Burgess testified that Mrs. Cole identified the pictures of the defendants and Billy Ray Locklear after he showed her some composites. He testified that it took Mrs. Cole one minute and forty-five seconds to identify Gilliam's photograph and that she identified Billy Ray Locklear's photograph within fifteen seconds. He, too, testified that she explained that she identified Billy Locklear because he had been in the store earlier. This slight variation in the amount of time it took Mrs. Cole to pick out the photographs does not render the testimony of Officer Burgess inadmissible. Further, since Officer Burgess was present, he could testify as to what he saw or observed. Any discrepancies in the testimony of the two witnesses went to the weight of the evidence, not to its admissibility. See State v. Rogers. Consequently, defendant Gilliam's assignment of error is overruled.
Milton Locklear argues (1) that the trial court committed prejudicial error in denying his motion to dismiss at the close of the State's evidence and at the close of all of the evidence; (2) that the trial court erred in instructing the jury on acting in concert; and (3) that the trial court erred in not instructing the jury on common law robbery.
Locklear's first argument is without merit. In determining if a motion to dismiss at the close of the State's evidence is to be granted, the trial court is required "to consider the evidence in its light most favorable to the State, take it as true, and give the State the benefit of every reasonable inference to be drawn therefrom." State v. Goines, 273 N.C. 509, 513, 160 S.E.2d 469, 472 (1968). The evidence, taken in the light most favorable to the State tends to show that Milton Locklear was present in the store at the time of the robbery, that he counseled Gilliam in the robbery, and that he and Gilliam fled the scene together. Further, Milton Locklear was the driver of the car used in the getaway, and while in ...