Appeal by defendant from Mills, Judge. Judgments entered 2 April 1981 in Superior Court, Forsyth County. Heard in the Court of Appeals 9 February 1982.
Hedrick, Judge. Judge Hill concurs. Judge Becton concurs in part and dissents in part.
By his first four assignments of error, defendant argues that the trial court erred in denying his motions for dismissal of the charges, for nonsuit, and for setting aside the verdicts. As to the motions to dismiss and the motion for nonsuit, defendant contends that there was insufficient evidence (a) that he had reasonable grounds to believe the ring to have been stolen at the time he bought it and (b) that he acted with a dishonest purpose in receiving either the ring or the silverware. On the question of setting aside the verdict, defendant contends that the verdict was against the greater weight of the evidence concerning the elements set forth in (a) and (b) above. We reject defendant's contentions.
Upon the motion to dismiss and its equivalent motion to grant a nonsuit in a criminal action, all of the evidence favorable to the State, whether competent or incompetent, must be deemed true; discrepancies and contradictions therein are disregarded, and the State is entitled to every favorable inference of fact reasonably deduced from the evidence. State v. Witherspoon, 293 N.C. 321, 237 S.E.2d 822 (1977). In reviewing the record in the present case, we find that the evidence was clearly sufficient to take the case to the jury. Viewing the evidence in the light most favorable to the State, we believe the jury could determine from
what Johnson told defendant that defendant had reasonable grounds to believe that the ring was stolen and that, in purchasing the ring, defendant had the intent necessary to constitute the crime. Johnson stated that he had a ring with "no kind of identification." He said, "I mean, no kind of signs on it. One that you know, I went back and found that one. I lost a lot of stuff man, when I was trying to get away, you know." Furthermore, Johnson talked extensively about the silver he had stolen thereby giving the defendant additional grounds to be suspicious about the origin of the ring. Despite this, however, the record discloses that the defendant, before the police entry, had already disposed of the jade ring.
In defendant's motion to set aside the verdicts, defendant contended the verdicts were against the greater weight of the evidence. Under this motion, the trial judge has discretionary authority to set aside the verdict and order a new trial whenever it appears to him that the verdict is contrary to the greater weight of the credible testimony. State v. Shepherd, 288 N.C. 346, 218 S.E.2d 176 (1975). The decision of the court involves the exercise of the court's discretion, is not a question of law and is not, therefore, reviewable. Roberts v. Hill, 240 N.C. 373, 82 S.E.2d 373 (1954). The two assignments of error based on defendant's motions to set aside the verdict are overruled.
In a later argument, defendant presents an additional reason that the motions to dismiss and to set aside the verdict were erroneously denied. Citing State v. Stanley, 288 N.C. 19, 215 S.E.2d 589 (1975), he contends that he was entrapped as a matter of law. With this contention we disagree. In the Stanley case, the Supreme Court held that the defendant, seventeen years old, was entrapped as a matter of law when an undercover policeman befriended him for several weeks and repeatedly asked defendant, without defendant's encouragement, to buy him drugs. In its analysis, the Court defined entrapment as "'the inducement of one to commit a crime not contemplated by him, for the mere purpose of instituting a criminal prosecution against him.'" State v. Stanley, supra at 27, 215 S.E.2d at 594 citing 21 Am. Jur. 2d Criminal Law § 143. "'Entrapment occurs only when the criminal conduct was "the product of the creative activity" of law enforcement officials.'" State v. Stanley, supra at 30, 215 S.E.2d at 596, quoting Sherman v. United States, 356 U.S. 369, 372, 78 S. Ct. 819,
821, 2 L. Ed. 2d 848, 851 (1958). We find the factual circumstances of this case before us distinctly different from Stanley. Here, there was no evidence of an on-going relationship of trust or of repeated requests for defendant to perform illicit activities. At the request of the police who had reason to suspect defendant's purchase of stolen goods, Johnson approached defendant once with the jade ring and, a short while later, with the silverware. There was no evidence that the defendant was induced to commit a crime not contemplated by him, and there was, therefore, no entrapment as a matter of law. Defendant's motions to dismiss and to set aside the verdict were properly denied.
By his assignments of error numbered 17, 18, 19, 20, 21, 22, 23, 24, 25, and 26, based on twenty-nine exceptions duly noted in the record, defendant contends that the court erred to his prejudice by excluding evidence concerning the origin and use of the hot line, the defendant's use of the hot line both before and after his arrest, a typical transaction in defendant's store, threatening phone calls defendant had received, his previous involvement in the apprehension of criminals, his intentions at the time of the transactions with Johnson, and a conversation he had with his wife. Defendant argues that such evidence was competent to show "defendant's state of mind, motive, intent, knowledge and purpose, i.e., his lack of mens rea." In support of his theory, defendant relies heavily on the bard and quotes Mark Antony's famous eulogy, "The evil that men do lives after them/The good is oft interred with their bones." While we pass no judgment on Shakespeare's comments on good and evil, we certainly do not find them controlling, and we reject defendant's argument that the exclusion of the aforementioned evidence was prejudicial.
We have carefully examined each of the twenty-nine exceptions upon which these ten assignments of error are based and find that (1) a majority of exceptions were to the exclusion of evidence which was clearly irrelevant and immaterial; (2) much of the evidence defendant contends was excluded, having not been stricken, was not, therefore, excluded; (3) much of the evidence defendant contends was excluded was elsewhere clearly placed before the jury; and (4) much of the excluded testimony was never tendered, and this Court has no way to determine whether such exclusion was prejudicial to defendant. We find the assignments of error without merit.
The next question raised by defendant pertains to four assignments of error involving the trial court's failure to charge the jury on attempt, circumstantial evidence, motive, and evidence of similar acts of the defendant. While we agree with defendant that the trial court erroneously defined the attempt to receive stolen goods by using the definition of actual receipt of stolen goods, we find that this error inured to the benefit of defendant and is not, therefore, reversible error.
Furthermore, we do not find prejudicial error in the trial court's refusal to instruct the jury on the law of circumstantial evidence. Our courts have held repeatedly in cases where no instructions were requested that, when the State relies primarily on direct evidence to establish its case, it is not error to fail to instruct the jury on the law of circumstantial evidence. See State v. Griffin, 18 N.C. App. 14, 195 S.E.2d 569 (1973). In the present case, defendant did request instructions on the law of circumstantial evidence. Nevertheless, we believe that, in view of the evidence properly admitted for both the State and the defendant, there was insufficient circumstantial evidence relevant to defendant's guilt or innocence to require the requested instructions.
Defendant's argument that the trial court should have instructed on the issue of defendant's motive is likewise rejected. Defendant has failed to show, and we cannot find, that the instructions requested, if given, would have led to a different ...