{ "id": 8526601, "name": "STATE OF NORTH CAROLINA v. BELVA PHIPPS RICHARDSON", "name_abbreviation": "State v. Richardson", "decision_date": "1990-09-04", "docket_number": "No. 896SC1130", "first_page": "240", "last_page": "247", "citations": [ { "type": "official", "cite": "100 N.C. App. 240" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "240 S.E.2d 612", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570700 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0001-01" ] }, { "cite": "345 S.E.2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4778022 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0164-01" ] }, { "cite": "54 L.Ed.2d 281", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1977, "opinion_index": 0 }, { "cite": "98 S.Ct. 402", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1977, "opinion_index": 0 }, { "cite": "434 U.S. 924", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6427200, 6428259, 6427109, 6427687, 6427816, 6427463, 6427563, 6428013, 6427929, 6428122, 6427293 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/us/434/0924-02", "/us/434/0924-11", "/us/434/0924-01", "/us/434/0924-06", "/us/434/0924-07", "/us/434/0924-04", "/us/434/0924-05", "/us/434/0924-09", "/us/434/0924-08", "/us/434/0924-10", "/us/434/0924-03" ] }, { "cite": "235 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 711", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572704 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0711-01" ] }, { "cite": "370 S.E.2d 533", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2513005 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0666-01" ] }, { "cite": "349 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732391 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0457-01" ] }, { "cite": "277 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571816 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0173-01" ] }, { "cite": "351 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "318 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4733270 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/318/0663-01" ] }, { "cite": "389 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "326 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306215 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0268-01" ] }, { "cite": "370 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. App. 826", "category": "reporters:state", "reporter": "N.C. App.", "year": 1988, "opinion_index": 0 }, { "cite": "348 S.E.2d 791", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4731290 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0400-01" ] } ], "analysis": { "cardinality": 695, "char_count": 16224, "ocr_confidence": 0.781, "pagerank": { "raw": 3.3957956201984664e-07, "percentile": 0.8771710242566265 }, "sha256": "f2fd44b04604961b01fdfa44a28cba8f693cc54eea525702c12d8c1117160bc1", "simhash": "1:0d2f49d51e73d9f0", "word_count": 2666 }, "last_updated": "2023-07-14T14:37:10.855162+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Parker and Duncan concur." ], "parties": [ "STATE OF NORTH CAROLINA v. BELVA PHIPPS RICHARDSON" ], "opinions": [ { "text": "WELLS, Judge.\nDefendant first contends that the trial court erred in admitting testimony that she had committed several other alleged criminal offenses. Defendant\u2019s contention is that the evidence of these other alleged crimes, wrongs, or acts should have been excluded pursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 404 of the N.C. Rules of Evidence (1988).\nAfter a voir dire hearing, Betty Avent was allowed to testify that in the ten-month period preceding the burning of her mobile home, defendant had encouraged Whitaker and Davis to commit crimes for defendant\u2019s benefit and had provided transportation for Davis in order that the unlawful acts could be carried out. Specifically, defendant objects to Avent\u2019s testimony that Davis shoplifted from stores in Rocky Mount after being told to do so by defendant; that Davis \u2014again at defendant\u2019s urging \u2014 spray painted the car of a motel clerk with whom defendant had had a disagreement; and that defendant had asked Whitaker to burn her [defendant\u2019s] mobile home because she did not want it to be repossessed.\nUnder Rule 404(b) \u201c[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.\u201d G.S. \u00a7 8C-1, Rule 404(b). However, such evidence may be admissible for other purposes, including \u201cas proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\u201d Id. Evidence of other crimes is not limited to the exceptions set out in the rule. State v. Weaver, 318 N.C. 400, 348 S.E.2d 791 (1986); see also State v. Rosier, 322 N.C. App. 826, 370 S.E.2d 359 (1988). (Evidence of other offenses showing common scheme or plan to commit the offense with which defendant was charged held relevant and admissible pursuant to Rule 404(b).)\nRecent cases decided by our Supreme Court have made clear that since the enactment of the North Carolina Rules of Evidence, effective 1 July 1984, evidence of other offenses is admissible so long as it is relevant to any fact or issue other than the character of the accused. See, e.g., State v. Coffey, 326 N.C. 268, 389 S.E.2d 48 (1990), and cases cited therein. Even though evidence may tend to show other crimes, wrongs, or acts by defendant and his propensity to commit them, it is nevertheless admissible so long as it is also relevant for some other purpose. Id. (citations omitted). Relevant evidence is any evidence which has a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. N.C. Gen. Stat. \u00a7 8C-1, Rule 401 of the N.C. Rules of Evidence (1988). When incidents are offered for a proper purpose, the ultimate test of admissibility is whether they are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of Rule 403 of the N.C. Rules of Evidence. N.C. Gen. Stat. \u00a7 8C-1, Rule 403 of the N.C. Rules of Evidence (1988); State v. Cotton, 318 N.C. 663, 351 S.E.2d 277 (1987). In the present case the trial court concluded that the evidence was admissible under Rule 404(b) for the purpose of showing defendant\u2019s intent, plan, design, or mode of operation and that its probative value outweighed its prejudicial effect.\nDefendant denied asking Davis and Whitaker to burn Avent\u2019s trailer; therefore, evidence that defendant had, on previous occasions, solicited or attempted to solicit Davis or Whitaker to commit crimes was relevant and admissible as probative of a common plan or design (scheme) on the part of defendant to solicit others to do unlawful acts for her benefit. These incidents are very similar to the offenses with which defendant is charged in that the same youths were solicited to do some act that defendant wanted carried out and, on the occasions when the acts were carried out, defendant provided necessary transportation. Additionally, all of the events took place within a ten-month period; therefore, remoteness is not an issue. Under these circumstances we hold that the evidence was sufficiently similar to justify its admission as proof of a common plan or scheme.\nFinally, defendant has not shown that the evidence should have been excluded under the balancing test of Rule 403. The trial court specifically admitted evidence of the alleged prior offenses for the limited purpose of considering whether there existed in defendant\u2019s mind a plan, scheme or design involving the crimes charged. The jury was so instructed prior to beginning their deliberations. This argument is overruled.\nDefendant also contends that Avent should not have been allowed to testify that she [Avent] quit being friends with defendant when defendant said she wanted to find someone to kill her [defendant\u2019s] husband. We disagree. Avent\u2019s testimony that defendant planned to have her own husband killed was relevant to show the relationship between defendant and Avent and was also admissible as probative of defendant\u2019s possible motive in soliciting the burning of Avent\u2019s mobile home. The State\u2019s theory was that defendant solicited Whitaker and Davis to burn Avent\u2019s mobile home because of a dispute that had arisen between defendant and Avent. Evidence showing how the relationship between defendant and Avent deteriorated from one of friendship and confidence sharing to one of animosity was therefore relevant and admissible.\nDefendant also contends that testimony from two other witnesses regarding other alleged crimes, wrongs, or acts was improperly admitted. We have reviewed these assignments and find them to be without merit. On two separate occasions testimony concerning defendant\u2019s plan to have her own mobile home burned\u2014 either by Whitaker or two other youths \u2014 was elicited by the State. Both times this testimony was offered to explain or rebut evidence previously elicited by defendant. It is well settled that when one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such later evidence would be incompetent or irrelevant had it been offered initially. State v. Albert, 303 N.C. 173, 277 S.E.2d 439 (1981).\nIn her next assignment of error, defendant contends that the trial court erroneously admitted into evidence oral out-of-court statements made by Davis to two police detectives. Defendant argues that the testimony was not admissible as corroborative evidence because it went beyond Davis\u2019 earlier testimony. We deal first with the testimony of Detective Wardie Vincent.\nAfter Davis had testified, Detective Vincent testified over objection that Davis had told him that he was \u201ctired of what Belva had had him doing and he was ready to get out of it\u201d and that he was ready to \u201cget out of the stealing and burning.\u201d The trial court instructed the jury to consider the statements only for the purpose of corroborating Davis\u2019 previous testimony. Davis had previously testified that when he was picked up by the detectives for an unrelated offense that he had also told them that defendant \u201chas [him] steal for her and stuff and she had [him] set a fire\u201d and that he \u201ctold [Vincent] about [defendant], everything that had been going on.\u201d The prior statement of a witness need not merely relate to specific facts brought out in the witness\u2019s trial testimony to \u2018be corroborative. State v. Ramey, 318 N.C. 457, 349 S.E.2d 566 (1986). As long as facts not referred to in the trial testimony add weight or credibility to the testimony, they are corroborative and therefore properly admissible. Id. This prior statement of Davis tended to add strength and credibility to his trial testimony and its admission was not error.\nThe testimony of Detective Warren concerning prior statements made by Davis concerning his \u201cstealing for Belva Richardson\u201d presents a different question. There was no instruction limiting Detective Warren\u2019s testimony to corroboration. The State contends, however, that this testimony was not offered for corroboration, but in rebuttal to defendant\u2019s evidence that Davis was making up the statements about defendant and her role in the burning of Avent\u2019s trailer because Davis hoped that by doing so he could extricate himself from his own legal trouble. We conclude that Detective Warren\u2019s testimony was admissible as rebuttal evidence. See State v. Albert, supra. Even if it were error to admit Warren\u2019s testimony, defendant has not met her burden of showing that the error was so prejudicial that had it not been admitted a different result would likely have been reached. See N.C. Gen. Stat. \u00a7 15A-1443 (1978).\nIn her final assignment of error defendant contends that her convictions for both solicitation to commit arson and conspiracy to commit arson violate her constitutional right to be free from double jeopardy. We note that defendant did not raise this question in the trial court. Appellate courts will not ordinarily consider a constitutional question raised for the first time on appeal. State v. Swann, 322 N.C. 666, 370 S.E.2d 533 (1988). However, we proceed to address this additional issue in the exercise of our supervisory jurisdiction. Id. Defendant contends that soliciting arson is essentially an invitation to enter into a conspiracy to commit arson and that solicitation by its nature is a lesser included offense of conspiracy.\nSoliciting another person to commit a felony is a crime in North Carolina. State v. Furr, 292 N.C. 711, 235 S.E.2d 193, cert. denied, 434 U.S. 924, 98 S.Ct. 402, 54 L.Ed.2d 281 (1977). Counseling, enticing or inducing another to commit a crime is the gravamen of the crime of solicitation. Id. Solicitation is complete when the request to commit a crime is made, regardless of whether the crime solicited is ever committed or attempted. State v. Mann, 317 N.C. 164, 345 S.E.2d 365 (1986). Conspiracy, on the other hand, is the agreement of two or more persons to do an unlawful act or to do a lawful act by an unlawful means. State v. Looney, 294 N.C. 1, 240 S.E.2d 612 (1978). The reaching of an agreement is an essential element of conspiracy. Id. It is certainly possible to solicit another to commit a crime without the agreement essential to a conspiracy ever being reached. See, e.g., Looney, supra (Conspiracy is not a lesser included offense of accessory before the fact based on similar reasoning). We therefore hold that solicitation is not a lesser included offense of conspiracy, the elements of the two crimes in question are different, and no problem with double jeopardy arises on these facts.\nFor the reasons stated above, we hold that defendant received a fair trial, free from prejudicial error.\nNo error.\nJudges Parker and Duncan concur.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Norma S. Harrell, for the State.", "Glover & Petersen, P.A., by Ann B. Petersen and James R. Glover; and Johnson and Jones, by Bruce C. Johnson, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BELVA PHIPPS RICHARDSON\nNo. 896SC1130\n(Filed 4 September 1990)\n1. Criminal Law \u00a7 34.4 (NCI3d|\u2014 admissibility of evidence of other offenses\nEvidence of other offenses is admissible so long as it is relevant to any fact or issue other than the character of the accused.\nAm Jur 2d, Evidence \u00a7 321.\n2. Criminal Law \u00a7 34.8 (NCI3d) \u2014 soliciting arson \u2014 evidence of other solicitations of crimes \u2014 admissibility to show common plan\nIn a prosecution of defendant for soliciting two youths to commit arson and conspiracy to commit arson, evidence that defendant had previously solicited these same youths to commit other crimes and had provided transportation for them was admissible to show a common plan or scheme. N.C.G.S. \u00a7 8C-1, Rule 404(b).\nAm Jur 2d, Evidence \u00a7 326.\n3. Criminal Law \u00a7 34.7 (NCI3d)\u2014 planning of another crime\u2014 admissibility to show motive\nTestimony by an arson victim that she quit being friends with defendant when defendant said she wanted to find someone to kill her husband was admissible to show defendant\u2019s motive in soliciting the burning of the victim\u2019s mobile home.\nAm Jur 2d, Evidence \u00a7 325.\n4. Criminal Law \u00a7 39 (NCI3d)\u2014 defendant\u2019s planning of another crime \u2014 admission for rebuttal purpose\nIn a prosecution of defendant for solicitation of youths to burn the victim\u2019s mobile home and conspiracy to commit arson, testimony concerning defendant\u2019s plan to have her own mobile home burned , by youths was admissible to explain or rebut evidence previously elicited by defendant even though it might not otherwise have been admissible.\nAm Jur 2d, Evidence \u00a7 321.\n5. Criminal Law \u00a7 89.3 (NCI3d)\u2014 prior statements of witness\u2014 admissibility for corroboration\nStatements made to a detective by a youth allegedly solicited by defendant to burn the victim\u2019s mobile home that he was \u201ctired of what [defendant] had had him doing\u201d and that he was ready to \u201cget out of the stealing and burning\u201d were admissible to corroborate testimony by the youth at trial that he had told detectives that defendant had had him steal and set a fire for her, although the statements went beyond the testimony of the youth, since they added credibility or weight to his testimony.\nAm Jur 2d, Witnesses \u00a7 641.\n6. Criminal Law \u00a7 39 (NCI3d)\u2014 statements concerning stealing for defendant \u2014 admissibility for rebuttal purpose\nIn a prosecution for solicitation and conspiracy to commit arson, a detective\u2019s testimony as to statements by a youth allegedly solicited to burn the victim\u2019s mobile home concerning his \u201cstealing\u201d for defendant was properly admitted to rebut defendant\u2019s evidence that the youth was making up the statements about defendant\u2019s role in the burning of the mobile home in order to extricate himself from his own legal troubles.\nAm Jur 2d, Witnesses \u00a7 641.\n7. Criminal Law \u00a7 3 (NCI4th); Conspiracy \u00a7 8 (NCI3d)\u2014 solicitation and conspiracy to commit arson \u2014no double jeopardy\nDefendant\u2019s right to be free from double jeopardy was not violated by her convictions for both solicitation to commit arson and conspiracy to commit arson since solicitation is not a lesser included offense of conspiracy and the elements of the two crimes are different.\nAm Jur 2d, Conspiracy \u00a7 37; Criminal Law \u00a7\u00a7 161, 162, 277, 278.\nAPPEAL by defendant from judgment entered 16 May 1989 in NORTHAMPTON County Superior Court by Judge J. Herbert Small. Heard in the Court of Appeals 31 May 1990.\nDefendant was charged with first degree arson, attempted burning of personal property, soliciting arson and conspiracy to commit arson. The evidence at trial tended to show that on 14 April 1988 a mobile home, in which Betty A vent was living, was set on fire. Portions of the exterior were charred and there was smoke throughout but nothing inside the mobile home burned and none of the residents were injured. There was a strong smell of gasoline at the rear of the mobile home after the fire was extinguished.\nThe fire was set by Tracy Davis, then age 16, and Acey Whitaker, then age 18. They poured gasoline from gallon jugs on the mobile home and on Avent\u2019s car which was parked nearby. Davis then lit the match that started the fire. Davis and Whitaker testified that defendant had driven them to Avent\u2019s trailer and dropped them off. After setting the fire, they ran to a nearby truckstop where defendant was waiting to pick them up. The State\u2019s evidence tended to show that defendant solicited Davis and Whitaker to burn Avent\u2019s mobile home because of a conflict which had arisen between defendant and Avent.\nDavis and Whitaker were charged with first degree arson, attempted burning of personal property, and conspiracy to commit arson. In exchange for their testimony at defendant\u2019s trial, they were allowed to plead guilty to second degree arson and conspiracy to commit arson.\nAt the close of the State\u2019s evidence, the trial court dismissed the charge of attempted burning of personal property. The jury acquitted defendant of first degree arson, but convicted her of solicitation to commit arson and conspiracy to commit arson. Defendant was sentenced to consecutive sentences of six years for the solicitation charge and ten years for the conspiracy charge. Defendant appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Norma S. Harrell, for the State.\nGlover & Petersen, P.A., by Ann B. Petersen and James R. Glover; and Johnson and Jones, by Bruce C. Johnson, for defendant-appellant." }, "file_name": "0240-01", "first_page_order": 272, "last_page_order": 279 }