{ "id": 11793462, "name": "STATE OF NORTH CAROLINA v. JAMES EDWARD ALLEN", "name_abbreviation": "State v. Allen", "decision_date": "1997-08-05", "docket_number": "No. COA96-910", "first_page": "182", "last_page": "187", "citations": [ { "type": "official", "cite": "127 N.C. App. 182" } ], "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": "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": "121 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "255 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569896 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/255/0412-01" ] }, { "cite": "214 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 261", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562016, 8561954, 8561926, 8561903, 8561981 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0261-05", "/nc/287/0261-03", "/nc/287/0261-02", "/nc/287/0261-01", "/nc/287/0261-04" ] }, { "cite": "212 S.E.2d 208", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "24 N.C. App. 717", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554633 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/24/0717-01" ] }, { "cite": "200 S.E.2d 182", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 219", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560808 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0219-01" ] }, { "cite": "460 S.E.2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "opinion_index": 0 }, { "cite": "119 N.C. App. 625", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916894 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/119/0625-01" ] }, { "cite": "284 S.E.2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "305" } ], "opinion_index": 0 }, { "cite": "304 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569083 ], "year": 1981, "pin_cites": [ { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0447-01" ] }, { "cite": "322 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750010 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0129-01" ] }, { "cite": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] }, { "cite": "335 S.E.2d 318", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 546", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686530, 4697061, 4693228, 4693904, 4690324 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0546-02", "/nc/314/0546-05", "/nc/314/0546-04", "/nc/314/0546-01", "/nc/314/0546-03" ] }, { "cite": "327 S.E.2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "74 N.C. App. 178", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523623 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/74/0178-01" ] }, { "cite": "252 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "40 N.C. App. 72", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548892 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/40/0072-01" ] }, { "cite": "327 S.E.2d 270", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "74 N.C. App. 92", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522920 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/74/0092-01" ] } ], "analysis": { "cardinality": 608, "char_count": 11930, "ocr_confidence": 0.759, "pagerank": { "raw": 1.7797426641168826e-07, "percentile": 0.7133027832896821 }, "sha256": "063502c7f478978e353a09bbbaa5ec1d6c05adfb7bdbafa4a417eac5bce12078", "simhash": "1:872b193f5bef0cf5", "word_count": 1976 }, "last_updated": "2023-07-14T19:43:16.540119+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and McGEE concur.", "Judge Cozort concurred in this opinion on or before to 31 July 1997." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES EDWARD ALLEN" ], "opinions": [ { "text": "MARTIN, John C., Judge.\nDefendant was charged with the second degree murder of Louis Lopez. He entered a plea of not guilty and was tried jointly with a co-defendant, Christopher Mosby. Briefly summarized, the State\u2019s evidence at trial tended to show that on the evening of 20 January 1994, Louis Lopez, Christopher Mosby, Thomas Williams, David Wanner, Tammy Clowers, Pamela Lowery, and defendant were all present at defendant\u2019s apartment in Winston-Salem. Thomas Williams was cutting crack cocaine in defendant\u2019s kitchen. After Williams finished cutting the cocaine, he, Mosby, Lopez, and defendant went into a bedroom where Williams confronted Lopez about some \u201cmerchandise\u201d being \u201cmessed up.\u201d There was evidence tending to show that Williams, Mosby, Wanner, and defendant escorted Lopez out of the apartment and into a van. Williams instructed Wanner to shut and lock the door to the vehicle so that Lopez could not get out. Williams drove the van, with defendant sitting in the right front seat and the other men in the back, to Washington Park. All five men got out of the van and, while defendant and Wanner stood next to the van, Williams and Mosby took Lopez to the edge of the woods. While Mosby held Lopez, Williams shot him in the head and in the chest. Williams and Mosby then carried his body deeper into the woods and returned to the van, where Williams threatened the other men if they said anything about the killing.\nDefendant offered evidence tending to show that while they were at the apartment, Williams told defendant that he was going to kill Lopez because Lopez did not have some money that he was supposed to bring Williams. Defendant attempted to dissuade Williams, and thought he had been successful because Williams seemed to calm down and told defendant, \u201cAll right,... I\u2019ll be back. I\u2019m fixing to drop him off.\u201d Williams, Mosby, Lopez, and a fourth man, Eugene Hairston, got their coats and left the apartment. Defendant, Warmer, Clowers, and Lowery stayed at the apartment, drinking beer. About twenty minutes later, Williams, Mosby, and Hairston returned to the apartment; Lopez was not with them. Williams told defendant that he had killed Lopez. Defendant testified that he and Williams were close friends, that they confided in each other, and that Williams looked up to him.\nDefendant\u2019s motion to dismiss made at the close of all the evidence was denied. The jury found defendant guilty of second degree murder and the trial court entered judgment upon the verdict and sentenced defendant to an active term of imprisonment for forty years. Defendant petitioned for a writ of certiorari to review his conviction which was allowed by this Court on 18 March 1996.\nBy his first assignment of error, defendant contends the trial court erred by denying his motion to dismiss the charge of second degree murder. He contends there was insufficient evidence that he aided or abetted in the murder of Louis Lopez. We disagree.\nIn ruling upon a criminal defendant\u2019s motion to dismiss, the trial court must decide whether there is substantial evidence of each element of the offense charged. State v. Jackson, 74 N.C. App. 92, 327 S.E.2d 270 (1985). Substantial evidence is understood to mean evidence that is existing, not just seeming or imaginary. State v. Smith, 40 N.C. App. 72, 252 S.E.2d 535 (1979). The evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference of fact which may reasonably be deduced therefrom. State v. Stanley, 74 N.C. App. 178, 327 S.E.2d 902, disc. review denied, 314 N.C. 546, 335 S.E.2d 318 (1985). Contradictions or discrepancies in the evidence must be resolved by the jury and do not warrant dismissal of the charges. State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982). Defendant\u2019s evidence is not to be considered by the trial court, unless such evidence is favorable to the State. State v. Bullard, 312 N.C. 129, 322 S.E.2d 370 (1984).\nIn this case, defendant was convicted on the theory that he aided and abetted Williams in the murder of Lopez. \u201cAn aider or abettor is a person who is actually or constructively present at the scene of the crime and who aids, advises, counsels, instigates or encourages another to commit the offense.\u201d State v. Barnette, 304 N.C. 447, 458, 284 S.E.2d 298, 305 (1981). The defendant must be present at the scene of the crime with the intent to aid the perpetrator should his assistance become necessary and such intent must be communicated to the perpetrator. State v. Burton, 119 N.C. App. 625, 460 S.E.2d 181 (1995). Communication of intent to the perpetrator may be inferred from the defendant\u2019s actions and from his relation to the perpetrator. Id. A defendant\u2019s mere presence at the scene of the crime, even though he may silently approve of the criminal act and do nothing to prevent it, is not sufficient to make him guilty of the crime. State v. Rankin, 284 N.C. 219, 200 S.E.2d 182 (1973). However, presence alone may be sufficient when the bystander is a friend of the perpetrator and the perpetrator knows the friend\u2019s presence will be regarded as encouragement and protection. State v. Cassell, 24 N.C. App. 717, 212 S.E.2d 208, cert. denied, 287 N.C. 261, 214 S.E.2d 433 (1975), citing State v. Hargett, 255 N.C. 412, 121 S.E.2d 589 (1961).\nApplying the foregoing principles to the evidence in the present case, we find no error in the trial court\u2019s denial of defendant\u2019s motion to dismiss. Viewed in the light most favorable to the State, there was evidence tending to show that defendant was aware of William\u2019s intent to kill Lopez and, with such knowledge, accompanied Williams and the other men as they took Lopez from the apartment to the van, and drove him to the place where he was killed. There was also evidence tending to show that defendant was present at the scene of the murder, standing next to the van with David Wanner, and that the two men watched as Thomas Williams shot Lopez. This evidence, considered together with the evidence of defendant\u2019s longstanding friendship with Mr. Williams, is sufficient, under the \u201cfriend exception,\u201d to support an inference that defendant, by his presence, communicated to Williams his intent to render aid in the commission of the crime should it become necessary. See State v. Rankin, supra. Therefore, the trial court properly dismissed defendant\u2019s motion to dismiss based on insufficiency of the evidence.\nBy his next three assignments of error, defendant contends that he is entitled to a new trial by reason of the trial court\u2019s erroneous admission of hearsay testimony by Tammy Clowers regarding an alleged threat made by defendant to Ms. Clowers\u2019 mother over the telephone. During the State\u2019s redirect examination of Tammy Clowers, she testified that she had received threats. The following exchange took place:\nQ. (by the prosecutor) Miss Clowers, who have you been receiving those threats from?\nA. From what my mother said, it was James Allen.\nMr. Boyles: Objection.\nThe Court: Overruled.\nQ. And what did your mother tell you about the threat that she \u2014 that she had received from James Allen and what was the nature of the threat?\nMr. Boyles: Objection.\nThe Court: Overruled.\nA: That if I did come to court that I was gone.\nThe court instructed the jury that it could consider the testimony to assist it \u201cin evaluating [Ms. Clowers\u2019] credibility and her state of mind as she testifies here before you today,\u201d apparently holding the testimony admissible pursuant to the hearsay exception contained in N.C. Gen. Stat. \u00a7 8C-1, Rule 803(3).\nHearsay is defined as a \u201cstatement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 801(c). Hearsay evidence is not admissible unless it is made so by a statutory hearsay exception. N.C. Gen. Stat. \u00a7 8C-1, Rule 802. Ms. Clowers\u2019 testimony concerning her mother\u2019s statement to her is clearly hearsay because its probative value, even for the limited purpose for which the trial court allowed it, is dependent upon the truth of the matter asserted, i.e., that defendant had threatened to harm Ms. Clowers if she testified. The trial court\u2019s admission of the hearsay testimony was a misapplication of the \u201cstate of mind\u201d exception contained in Rule 803(3), which permits hearsay testimony to show the state of mind of the declarant, not the witness who testifies concerning the statement.\nThe erroneous admission of hearsay testimony is not always so prejudicial as to require a new trial, State v. Ramey, 318 N.C. 457, 349 S.E.2d 566 (1986), and the burden is on the defendant to show prejudice. N.C. Gen. Stat. \u00a7 15A-1443(a). Prejudicial error occurs when there is a reasonable possibility that, had the error not been committed, a different result would have been reached. Id.\nIn this case, the State presented evidence, including Ms. Clowers\u2019 testimony, that defendant left the apartment with Williams, Lopez, and the other men and was present when Lopez was killed; defendant testified th\u00e1t he remained at the apartment and was not involved in the killing. Ms. Clowers\u2019 inadmissible hearsay testimony concerning her mother\u2019s statement that defendant had threatened to harm her if she came to court could clearly have caused the jury to believe that defendant was attempting to repress her testimony concerning his involvement in the crime, and to disbelieve defendant\u2019s own testimony that he was not present. Thus, we are unable to say that there is no reasonable possibility that a different verdict would have been reached had Ms. Clowers\u2019 hearsay testimony concerning the alleged threat been excluded. The error entitles defendant to a new trial.\nNew trial.\nJudges COZORT and McGEE concur.\nJudge Cozort concurred in this opinion on or before to 31 July 1997.", "type": "majority", "author": "MARTIN, John C., Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Associate Attorney General Bruce S. Ambrose, for the State.", "Lawrence J. Fine for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES EDWARD ALLEN\nNo. COA96-910\n(Filed 5 August 1997)\n1. Homicide \u00a7 370 (NCI4th)\u2014 second-degree murder \u2014 aiding and abetting \u2014 \u201cfriend exception\u201d \u2014 sufficient evidence\nThere was sufficient evidence to support defendant\u2019s conviction of second-degree murder based upon aiding and abetting where the evidence at trial indicated that defendant was aware of the murderer\u2019s intent to kill the victim, defendant accompanied the murderer and other men as they took the victim to the murder scene in a van, and defendant was at the scene of the murder, standing and watching as the victim was shot. This evidence coupled with the evidence that defendant and the murderer were friends was sufficient, under the \u201cfriend exception,\u201d to support an inference that defendant, by his presence, had communicated that he was willing to assist in the crime if it became necessary.\n2. Evidence and Witnesses \u00a7 875 (NCI4th)\u2014 misapplication of \u201cstate of mind\u201d hearsay exception \u2014 prejudicial error\nTestimony by a witness in a second-degree murder prosecution that her mother told her that defendant threatened by telephone to harm the witness if she came to court was hearsay and improperly admitted under the state of mind exception to the hearsay rule. Furthermore, the admission of the testimony was prejudicial error since the testimony could clearly have caused the jury to believe defendant was attempting to repress the witness\u2019s testimony of defendant\u2019s involvement in the crime and to disbelieve defendant\u2019s testimony that he was not present during the crime, and it cannot be said that there is no reasonable possibility that a different result would have been reached if the testimony had been excluded. N.C.G.S. \u00a7 8C-1, Rule 801(c).\nOn writ of certiorari from judgment entered 17 November 1994 by Judge Catherine C. Eagles in Forsyth County Superior Court. Heard in the Court of Appeals 30 April 1997.\nAttorney General Michael F. Easley, by Associate Attorney General Bruce S. Ambrose, for the State.\nLawrence J. Fine for defendant-appellant." }, "file_name": "0182-01", "first_page_order": 218, "last_page_order": 223 }