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North Carolina v. Allen

Filed: May 18, 1982.

STATE OF NORTH CAROLINA
v.
BENJAMIN JACK ALLEN



Appeal by defendant from Fountain, Judge. Judgment entered 6 May 1981 in Superior Court, Bertie County. Heard in the Court of Appeals 8 March 1982.

Hedrick, Judge. Chief Judge Morris and Judge Vaughn concur.

Hedrick

The first assignment of error brought forth in defendant's brief challenges the admission into evidence of testimony by persons alleged to be defendant's co-conspirators about declarations by other of the alleged co-conspirators. Defendant argues that this testimony was "hearsay," and that its admission "denied defendant the right to cross examine the declarants." The challenged testimony includes the following: Demory's testimony that someone said, prior to the robbery of the Flashbuy, "I want some money;" Demory's testimony that prior to the robbery of the Flashbuy someone suggested that the group rob the Flashbuy and shoot the store's attendant and that "[t]hey needed a gun;" the testimony of several witnesses that defendant said he had a gun and that when defendant provided the gun he stated that he would have nothing to do with any trouble they got into; Grady Rice's testimony that prior to the robbery defendant went into the Flashbuy with the gun but returned saying that he "couldn't pull the gun;" and Grady Rice's testimony that after the robbery one alleged co-conspirator said that another should return to the store and kill a man present in the store.

Whether the extrajudicial declaration of a co-conspirator is offered to impose substantive vicarious liability on a defendant co-conspirator, see State v. Tilley, 292 N.C. 132, 232 S.E.2d 433 (1977) and 2 Stansbury's N.C. Evidence § 173 (Brandis rev. 1973), or to avoid the rule excluding hearsay testimony by charging the defendant co-conspirator with "vicarious admission of the facts declared," see McCormick's Handbook of the Law of Evidence, § 267 at 645 (2d ed. 1972), the declaration must be made by the co-conspirator "during the course of and in pursuit of the goals of the illegal scheme." See State v. Tilley, supra at 132, 232 S.E.2d at 438. The evidence challenged in the present case, however, was offered for neither purpose. First, as discussed below, defendant's liability was not established vicariously but by his own direct acts of providing a gun to the other co-conspirators. Second, the challenged evidence does not even amount to hearsay, and therefore need not conform to an exception to the hearsay rule; the assertion of a person other than the presently testifying witness "is not hearsay when offered into evidence for some purpose other than to prove the truth of the matter asserted," State v. Gray, N.C. App. , , 286 S.E.2d 357, 361 (1982), and

the extrajudicial assertions in the present case (e.g., that the co-conspirators needed a gun, that they should rob the Flashbuy, that they should kill a man in the store) were offered not to prove their truth, but to prove that they were asserted by the various co-conspirators and to thereby establish the circumstances surrounding the alleged conspiracy. Defendant had ample opportunity to cross-examine the co-conspirator witnesses on the veracity of their testimony that such assertions were made. Furthermore, the extrajudicial declarations of defendant (one of which may have been offered to prove the truth of the matter asserted) are admissible as admissions of a party opponent. See State v. Cobb, 295 N.C. 1, 243 S.E.2d 759 (1978). Hence, the challenged testimony was properly admitted into evidence, and this assignment of error is overruled. See also State v. Puryear, 30 N.C. App. 719, 228 S.E.2d 536, disc. rev. denied and appeal dismissed, 291 N.C. 325, 230 S.E.2d 678 (1976).

By his next assignment of error, defendant argues that the court erred in denying defendant's motions for "directed verdict" and "for appropriate relief based upon lack of sufficiency of evidence to support the verdict."

"A motion for a directed verdict has the same effect as a motion for nonsuit and the test of the sufficiency of the evidence to withstand either motion is the same." State v. Lowe, 295 N.C. 596, 604, 247 S.E.2d 878, 884 (1978). Upon such motions,

the trial judge is required to consider the evidence in the light most favorable to the State, take it as true, and give the State the benefit of every reasonable inference to be drawn therefrom . . . [;] [r]egardless of whether the evidence is direct, circumstantial, or both, if there is evidence from which a jury could find that the offense charged has been committed and that the defendant committed it, the motion[s] should be overruled.

State v. Hood, 294 N.C. 30, 44, 239 S.E.2d 802, 810 (1978). Similarly, if the evidence meets such test and was thereby sufficient to submit the case to the jury, a motion for appropriate relief for insufficiency of the evidence is also properly denied. See G.S. § 15A-1414(a), (b)(1)(c).

In the present case, the State was required to present sufficient evidence from which the jury could find defendant guilty of

conspiracy to commit armed robbery. "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. Aleem, 49 N.C. App. 359, 362, 271 S.E.2d 575, 578 (1980). The offense of criminal conspiracy is complete when the agreement is made, since the conspiracy itself, not the execution of the deed, is the gravamen of the offense. State v. LeDuc, 48 N.C. App. 227, 269 S.E.2d 220 (1980). "Those who aid, abet, counsel or ...


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