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North Carolina v. Powell

Filed: January 5, 1982.

STATE OF NORTH CAROLINA
v.
WILLIAM THOMAS POWELL



Appeal by defendant from McKinnon, Judge. Judgment entered 1 April 1980 in Robeson County Superior Court. Heard in the Court of Appeals 19 October 1981.

Morris, Chief Judge. Judges Arnold and Becton concur.

Morris

When the cases of defendant, Foust and Burgess were initially called for trial, all three defendants were seated at the defense table, in the presence of prospective jurors. The court excluded all jurors from the courtroom, and Foust pled guilty to conspiracy and receiving stolen goods and then became a witness for the state. Defendant and Burgess waived arraignment months earlier and entered pleas of not guilty. Defendants moved, upon entry of

Foust's plea, for a continuance, but the motion was denied. Defendant assigns error to the denial, alleging that he was prejudiced by Foust's sitting at the defense table and by the district attorney's statement, made in the presence of the jurors, of the charges against all defendants. He contends that the procedure was calculated by the prosecution to suggest that all three men cooperated in the criminal acts charged, and that the plea came as a surprise, preventing him from marshalling evidence with which to rebut Foust's testimony and impeach his credibility.

We find no merit in this contention. It is clear from the record that defense counsel was never assured that Foust would plead not guilty, but that the state had informed counsel of the real possibility that he might not be a codefendant, that the taking of his guilty plea was a proper procedural matter, that the plea was entered out of the presence of the jury, and that defendant was given an opportunity to cross-examine Foust. Defendant also fails to indicate what witnesses he would have called or the probability of obtaining their appearance. A motion for a continuance is addressed to the sound discretion of the trial judge, and his ruling thereon is not subject to review absent an abuse of that discretion. State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979); State v. Cameron, 283 N.C. 191, 195 S.E.2d 481 (1973). The denial was clearly within justifiable bounds and this assignment of error is overruled.

Defendant's second assignment relates to the court's denial of several motions to strike testimony referring to crimes said to have been committed by defendant. In a prosecution for a particular crime, the state may not, as a general rule, offer evidence tending to show that the accused has committed another independent or separate offense. State v. Fowler, 230 N.C. 470, 53 S.E.2d 853 (1949). There are several well-recognized exceptions to this rule, however, such as where the evidence helps prove intent or design. The testimony to which objection was made tended to show that defendant dealt regularly in the purchase and resale of stolen goods. We find that the evidence is admissible to show intent on the part of defendant to commit a conspiracy to effect larceny, and to show a plan or scheme for the commission of the crime. State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954); State v. Fowler, supra.

Defendant variously excepts to the admission of testimony which he regards as unresponsive, incompetent, and containing non-expert opinion. He further contends that questions posed to Foust concerning his guilty plea in the case sub judice were improper and the answers thereto incompetent, pursuant to the rule that neither a conviction nor a guilty plea by one defendant is competent as evidence of the guilt of a codefendant on the same charges. State v. Campbell, 296 N.C. 394, 250 S.E.2d 228 (1979). This legal maxim was not violated, however, as the defendant who pled guilty testified as a witness for the state to facts tending to establish his own guilt. Thus, his guilty plea, standing alone, is not sufficiently prejudicial to warrant a new trial. State v. Kerley, 246 N.C. 157, 97 S.E.2d 876 (1957), and cases cited and referred to therein. Neither has it been shown that defendant suffered substantial prejudice by the admission of the other testimony to which exception was taken. All the exceptions subsumed in defendant's second assignment of error are, therefore, rejected.

Defendant next assigns error to the trial judge's denial of his motions for nonsuit, to set aside the verdict, and for a new trial, alleging that the evidence fails to show a conspiracy. We find, on the contrary, that there is plenary evidence of conspiracy to commit larceny -- enough, clearly, to withstand defendant's motions. The state must present evidence of each element of the offense charged in order to overcome a motion for nonsuit. State v. Smith, 40 N.C. App. 72, 252 S.E.2d 535 (1979). A criminal conspiracy is defined as "the unlawful conference of two or more persons in a scheme or agreement to do an unlawful act or to do a lawful act in an unlawful way." State v. Covington, 290 N.C. 313, 326, 226 S.E.2d 629, 639 (1976). All evidence admitted is to be considered in the light most favorable to the state and the state is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980).

Evidence adduced by the state indicates that on several occasions the defendant and Foust talked about the procurement of stolen tobacco. Defendant alleges, however, that there is nothing in the record to show that defendant and Foust agreed to steal or commission another to steal the tobacco said to be the object of the conspiracy. Yet, "[t]o constitute a conspiracy it is not

necessary that the parties should have come together and agreed in express terms to unite for a common object; rather, a mutual, implied understanding is sufficient, so far as the combination or conspiracy is concerned, to constitute the offense." State v. Abernathy, 295 N.C. 147, 164, 244 S.E.2d 373, 384 (1978). Therefore, no overt act is necessary to establish a conspiracy. Id. The record is replete with evidence of such an implied understanding among defendant, Foust, and Burgess. Foust and Burgess were shown to have discussed the possibility of getting a load of tobacco from defendant. Arrangements for securing the tobacco were made in conversations with defendant. Defendant contacted Foust and Stoddard several times, and Foust and Burgess were shown to be prepared to pick up and pay for the tobacco. Finally, testimony from Agent Massey showed that the tobacco was owned by ...


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