{ "id": 8520243, "name": "STATE OF NORTH CAROLINA v. ROGER GENE COFFER; STATE OF NORTH CAROLINA v. MARK ALLEN COFFER", "name_abbreviation": "State v. Coffer", "decision_date": "1981-10-06", "docket_number": "No. 8118SC201", "first_page": "78", "last_page": "85", "citations": [ { "type": "official", "cite": "54 N.C. App. 78" } ], "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": "181 S.E. 2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "587-88" } ], "opinion_index": 0 }, { "cite": "279 N.C. 18", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565554 ], "year": 1971, "pin_cites": [ { "page": "44-45" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0018-01" ] }, { "cite": "243 S.E. 2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "351" } ], "opinion_index": 0 }, { "cite": "294 N.C. 503", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574036 ], "year": 1978, "pin_cites": [ { "page": "523" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0503-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-39", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1979, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "255 S.E. 2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570297 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0349-01" ] }, { "cite": "200 S.E. 2d 27", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560673 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0174-01" ] }, { "cite": "259 S.E. 2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 430", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572652 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0430-01" ] }, { "cite": "259 S.E. 2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 673", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573885 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0673-01" ] }, { "cite": "249 S.E. 2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 709", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568600 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0709-01" ] }, { "cite": "282 N.C. 304", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564520, 8564493, 8564557, 8564467, 8564445 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0304-04", "/nc/282/0304-03", "/nc/282/0304-05", "/nc/282/0304-02", "/nc/282/0304-01" ] }, { "cite": "191 S.E. 2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "16 N.C. App. 88", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548855 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/16/0088-01" ] }, { "cite": "296 N.C. 738", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570817, 8570866, 8570965, 8570935, 8570905 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0738-01", "/nc/296/0738-02", "/nc/296/0738-05", "/nc/296/0738-04", "/nc/296/0738-03" ] }, { "cite": "249 S.E. 2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "39 N.C. App. 334", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552037 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/39/0334-01" ] }, { "cite": "276 S.E. 2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 591", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568010 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0591-01" ] }, { "cite": "219 S.E. 2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 397", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569503 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0397-01" ] }, { "cite": "276 S.E. 2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 572", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567913 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0572-01" ] }, { "cite": "272 S.E. 2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "49 N.C. App. 560", "category": "reporters:state", "reporter": "N.C. App.", "year": 1980, "opinion_index": 0 }, { "cite": "238 S.E. 2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "34 N.C. App. 468", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549802 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/34/0468-01" ] } ], "analysis": { "cardinality": 804, "char_count": 15808, "ocr_confidence": 0.798, "pagerank": { "raw": 6.89516513629939e-08, "percentile": 0.41939298391527846 }, "sha256": "0b545a16c4a6bfea60ef4f535e4c46246e075594876a2b1d1d066a72f9e6f576", "simhash": "1:426a432e6c0b12af", "word_count": 2633 }, "last_updated": "2023-07-14T17:12:28.716896+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN (Robert M.) and BECTON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ROGER GENE COFFER STATE OF NORTH CAROLINA v. MARK ALLEN COFFER" ], "opinions": [ { "text": "MARTIN (Harry C.), Judge.\nWe will deal with each defendant\u2019s assignments of error separately.\nRoger Gene Coffer\nDefendant Roger Coffer first assigns as error the trial court\u2019s denying his motion to dismiss the indictment for felonious assault on grounds of double jeopardy. The defendant was arrested on a warrant charging him with felonious assault with a deadly weapon with intent to kill, resulting in serious injury. The district court judge did not find probable cause as to the felony, but found probable cause as to the misdemeanor of assault inflicting serious bodily injury. The state immediately took a voluntary dismissal. It is defendant\u2019s contention that once the district court determined the assault prosecution to be within its jurisdiction, the state should have taken the case directly to the grand jury for indictment, rather than filing a voluntary dismissal. We disagree.\nN.C.G.S. 15A-612(b) provides that disposition of a charge on a probable cause hearing does . not preclude the state from instituting a subsequent prosecution for the same offense. The official commentary to N.C.G.S. 15A-931 provides that a voluntary dismissal of criminal charges by the state \u201cdoes not itself bar the bringing of new charges.\u201d Thus our statutes clearly contemplate the procedure used by the state in the present case.\nIn State v. Hice, 34 N.C. App. 468, 238 S.E. 2d 619 (1977), the Court addressed this question and held that jeopardy does not attach until the time a jury has been empaneled. The defendant had argued, unsuccessfully, that the trial court erred in failing to dismiss a manslaughter charge because jeopardy had attached when he was charged with death by vehicle and driving under the influence, and the prosecutor had taken a voluntary dismissal in district court. Thus, we find that case law, too, supports the state\u2019s position on this issue.\nWe are next asked to consider whether there is merit to defendant\u2019s contention that a lay witness was erroneously permitted to give an opinion as to defendant\u2019s guilt.\nThe victim\u2019s sister testified to a conversation she had with the defendant sometime after the alleged assault. Defendant objected to any part of the conversation being introduced. The trial court heard arguments on voir dire and instructed the witness on what portion of the conversation would be admissible. Defendant objected to the ruling. The witness then repeated before the jury the admissible portions of the conversation, including her statement to the defendant, \u201cGod help me, I can\u2019t forgive you for what you have done.\u201d The witness had not used these exact words during her voir dire examination.\nDefendant failed to object to the witness\u2019s statement, made for the first time before .the jury. Failure to object at trial normally constitutes waiver of error. 1 Stansbury\u2019s N.C. Evidence \u00a7 27 (Brandis rev. 1973); State v. Jordan, 49 N.C. App. 560, 272 S.E. 2d 405 (1980). We find, moreover, that the witness\u2019s statement was not an expression of a theoretical opinion as to defendant\u2019s guilt, but rather an \u201cinstantaneous conclusion of the mind.\u201d Stansbury, supra, \u00a7 125; State v. Miller, 302 N.C. 572, 276 S.E. 2d 417 (1981); State v. Spaulding, 288 N.C. 397, 219 S.E. 2d 178 (1975). We find no error in the admission of this testimony.\nIn light of State v. Freeman, 302 N.C. 591, 276 S.E. 2d 450 (1981), defendant withdraws his third assignment of error in which he contends that the kidnapping charge, depending entirely on testimony of defendant\u2019s spouse, should have been dismissed.\nDefendant\u2019s fourth assignment of error is based on the trial court\u2019s refusal to give a limiting instruction immediately before Jerry Bowman\u2019s prior inconsistent statement was read. The trial judge did caution the jury in his charge that the statement was to be considered not as substantive evidence, but only in weighing the credibility of the witness\u2019s testimony. N.C.G.S. 1-181 allows requests for special instructions to be submitted to the judge before his charge to the jury, thus providing statutory protection in situations such as the one presented by these facts. State v. Lamb, 39 N.C. App. 334, 249 S.E. 2d 887, disc. rev. denied, 296 N.C. 738 (1979). We note, too, that the trial judge has a duty to regulate the conduct and the course of business during a trial. The exercise of this discretionary function will not be reviewed absent a showing of abuse. State v. Spaulding, supra. We find that the judge did not abuse his discretion in postponing his instruction on the use of prior inconsistent statements until his final charge to the jury.\nAs his fifth assignment of error, defendant Roger Coffer contends that the trial judge incorrectly defined the term assault in his charge to the jury. We have carefully examined the judge\u2019s instructions and find no error.\nIn answer to defendant\u2019s contention that the court should have instructed on the elements of battery, we find the case of Ormond v. Crampton, 16 N.C. App. 88, 191 S.E. 2d 405, cert. denied, 282 N.C. 304 (1972), apposite. In Ormond the tendered issue in the case was assault, whereas defendant complained that the instruction was based on an issue of battery. The Court found no error in the charge. The trial judge had adequately apprised the jury of its duty to find that the defendant acted intentionally in a series of events which led to plaintiffs injury.\nNext, the defendant assigns as error the court\u2019s instruction on the principles of acting in concert. Defendant specifically objects to what he considers the unnecessary repetition and emphasis placed on the theory. This assignment of error is totally without merit. As to both defendants the court instructed the jury on the charges of kidnapping and various degrees of assault, each of which necessitated the repetition of an instruction on acting in concert.\nMark Allen Coffer\nThe defendant Mark Coffer first assigns as error the court\u2019s exclusion of a hearsay statement which would tend to support his alibi defense. We find no error in the exclusion of this statement.\nRoger Coffer allegedly told officer Keith Meredith that one Johnny Staley was with him during the early morning hours of 19 March 1980. The statement clearly falls within our definition of hearsay. The probative force of the officer\u2019s testimony would depend upon the competency and credibility of Roger Coffer, the out-of-court declarant. The statement was offered to prove the truth of the matter asserted \u2014 that Johnny Staley (and not Mark Coffer) was with Roger. Stansbury, supra, \u00a7 138.\nThe defendant argues that the statement falls within the declaration against penal interest exception to the hearsay rule. We find nothing in the statement which constitutes an admission that the declarant, Roger Coffer, committed the crime for which Mark Coffer was tried. State v. Haywood, 295 N.C. 709, 249 S.E. 2d 429 (1978). The statement was innocuous and without damaging potential for at no time did Roger Coffer deny being at the scene of the crime. The court properly ruled the statement as inadmissible hearsay.\nDefendant Mark Coffer next contends that the trial court erred in permitting his girlfriend to testify to the color of stockings she wore and to exhibit them to the jury. We agree that this testimony had little relevance; however, ordinarily the reception of irrelevant evidence is considered harmless error. Stansbury, supra, \u00a7 80. The defendant has failed to show that the admission of this testimony has substantially rather than theoretically affected his rights, or that a different result would have ensued had the evidence been excluded. State v. Atkinson, 298 N.C. 673, 259 S.E. 2d 858 (1979); State v. White, 298 N.C. 430, 259 S.E. 2d 281 (1979); State v. Cross, 284 N.C. 174, 200 S.E. 2d 27 (1973).\nMark Coffer also takes exception with the trial court\u2019s instructions on acting in concert, arguing that the judge made a tacit assumption that he was present on the scene, thus weakening his alibi defense.\nIn his charge the judge repeatedly referred to \u201cRoger Gene Coffer, acting either by himself or acting together with Mark Allen Coffer.\u201d We do not agree that the instructions were tantamount to a judicial opinion on the evidence.\nEssential to the theory of acting in concert is a common plan or purpose between two or more persons to commit a crime. State v. Joyner, 297 N.C. 349, 255 S.E. 2d 390 (1979). In Roger\u2019s case it would be necessary for the jury to find that a common plan or purpose existed between Roger and Mark Coffer and that Mark committed acts in furtherance of the crime. Only if the jury determined from the evidence that both these conditions existed, could it then find Roger Coffer guilty under the acting in concert theory. The judge expressed no more of an opinion as to Mark Coffer\u2019s guilt or innocence by including his name in these instructions than he did in including his name when instructing on the charges respecting Mark\u2019s acting in concert with Roger.\nFinally, the defendant Mark Coffer argues that the court erred in determining that the kidnapping of the victim was a separate act from the assault of the victim. Defendant contends that any restraint or asportation of the victim was incidental to and not independent from the assault. N.C. Gen. Stat. \u00a7 14-39(a) (Supp. 1979).\nIn State v. Fulcher, 294 N.C. 503, 523, 243 S.E. 2d 338, 351 (1978), the Court wrote that N.C.G.S. 14-39 \u201cwas not intended by the Legislature to make a restraint, which is an inherent, inevitable feature of such other felony, also kidnapping so as to permit the conviction and punishment of the defendant for both crimes. To hold otherwise would violate the constitutional prohibition against double jeopardy.\u201d\nAsportation of the victim is not an inherent or inevitable feature of an assault. The removal of Carol from the front porch of her home to a more secluded wooded area clearly facilitated the commission of the felony of assault. The assignment of error is overruled.\nWe hold that defendants, Roger Gene and Mark Allen Coffer, received a fair trial free of error.\nNo error.\nJudges MARTIN (Robert M.) and BECTON concur.\n. In State v. Westbrook, 279 N.C. 18, 44-45, 181 S.E. 2d 572, 587-88 (1971), the following charge was upheld by the Supreme Court of North Carolina:\n\u201cIf the State has satisfied you from the evidence and beyond a reasonable doubt, that the defendant Westbrook and Frazier, on June 18, 1970, entered into a common plan and purpose to rob Carla Jean Underwood, and that the defendant Westbrook was present, acting in concert with, or aiding and abetting Frazier, in pursuance of a common plan and purpose to rob Carla Jean Underwood, and that Frazier shot and killed Carla Jean Underwood while committing or attempting to commit the felony of robbery, it would be your duty to return a verdict of guilty of murder in the first degree.\u201d", "type": "majority", "author": "MARTIN (Harry C.), Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Ben G. Irons, II, for the State.", "Smith, Patterson, Foll\u00edn, Curtis, James & Harkavy, by Norman B. Smith, for defendant Roger Gene Coffer.", "Assistant Public Defendant, Eighteenth Judicial District, E. Randolph Carroll for defendant Mark Coffer." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROGER GENE COFFER STATE OF NORTH CAROLINA v. MARK ALLEN COFFER\nNo. 8118SC201\n(Filed 6 October 1981)\n1. Criminal Law \u00a7 26.2\u2014 voluntary dismissal \u2014 no attachment of double jeopardy\nA voluntary dismissal taken by the State at a probable cause hearing did not preclude the State from instituting a subsequent prosecution for the same offense. G.S. 15A-612(b); G.S. 15A-931.\n2. Criminal Law \u00a7 71\u2014 instantaneous conclusion of the mind admissible\nA witness\u2019s statement: \u201cGod help me, I can\u2019t forgive you for what you have done\u201d was an \u201cinstantaneous conclusion of the mind\u201d and was admissible.\n3. Criminal Law \u00a7 89.4\u2014 prior inconsistent statement \u2014 failure to give limiting instructions\nThe trial judge did not abuse his discretion in failing to give a limiting instruction immediately before a witness\u2019s prior inconsistent statement was read to the jury where he did caution the jury in his charge that the statement was to be considered, not as substantive evidence, but only in weighing the credibility of the witness\u2019s testimony.\n4. Criminal Law \u00a7 73\u2014 hearsay \u2014 statement of codefendant concerning third person\nIt was not error for the court to exclude the statement of defendant Roger Coffer that Johnny Staley was with him at the time of the crime charged even though it tended to support defendant Mark Coffer\u2019s alibi as it was not a declaration against penal interest and did not fit within an exception to the hearsay rule.\n5. Criminal Law \u00a7 33\u2014 irrelevant evidence \u2014harmless error\nEvidence concerning the color of defendant\u2019s girlfriend\u2019s stockings was irrelevant, but defendant failed to show the admission of such evidence affected his rights or the verdict.\n6. Criminal Law \u00a7 113.7\u2014 acting in concert \u2014 instructions not judicial opinion\nBy repeatedly referring to \u201cRoger Gene Coffer, acting either by himself or acting together with Mark Allen Coffer\u201d in his instructions on acting in concert, the trial judge did not express a judicial opinion that Mark Coffer was present on the scene at the time of the crime.\n7. Assault and Battery \u00a7 4; Kidnapping \u00a7 1\u2014 kidnapping separate act from assault\nAsportation of the victim is not an inherent or inevitable feature of an assault.\nAppeal by defendants from Helms, Judge. Judgments signed 3 October 1980 in Superior Court, GUILFORD County. Heard in the Court of Appeals 2 September 1981.\nThese cases come on appeal from jury verdicts finding defendants, Roger Gene Coffer and Mark Allen Coffer, guilty of kidnapping and assault with a deadly weapon inflicting serious injury-\nThe evidence tended to show that on 19 March 1980 Carol Coffer was carried away from the porch of her home to a wooded area in her yard. There she was badly beaten by the defendants, Roger Coffer, her husband from whom she was separated, and Mark Coffer, Roger\u2019s cousin. At the time of the assault Carol had just returned from spending the evening with a friend, Jerry Bowman. Bowman remained in Carol\u2019s car while she went into the house to get his jacket. As she approached the house, she noticed a man running toward her. Although he was wearing a nylon stocking over his face, she was able to identify this individual as Mark Coffer. Mark caught up with her and grabbed her shoulders while Roger held her legs. Once they had removed Carol to the woods, Roger began hitting her in the face. He then disappeared and Mark continued to beat her with his fists and later with a rock and a stick. From the testimony of David Long, Carol\u2019s uncle, it seems that Roger had returned to the car to speak with Bowman. David Long had been asleep in the house. He was awakened by a scream and later heard loud voices. When he went outside to investigate, he found Bowman sitting in the car and Roger standing beside it. They appeared to be arguing. Shortly afterwards Carol came staggering out of the woods.\nAs a result of the beating, Carol suffered a head wound requiring six to eight stitches, her face was bruised and bleeding, her tongue had been cut and several teeth were chipped. It was likely she suffered a skull fracture.\nJerry Bowman testified at trial that Roger did not attack Carol and that someone other than Mark had assaulted her. The state introduced impeachment evidence of a prior inconsistent statement made to an investigating officer, as well as inconsistent testimony given in district court at the preliminary hearing. On those occasions Bowman had essentially corroborated the testimony of the victim.\nMark Coffer offered an alibi defense. His girlfriend testified at trial that he was with her at the time of the incident.\nCharges against the two defendants were consolidated for trial.\nAttorney General Edmisten, by Assistant Attorney General Ben G. Irons, II, for the State.\nSmith, Patterson, Foll\u00edn, Curtis, James & Harkavy, by Norman B. Smith, for defendant Roger Gene Coffer.\nAssistant Public Defendant, Eighteenth Judicial District, E. Randolph Carroll for defendant Mark Coffer." }, "file_name": "0078-01", "first_page_order": 106, "last_page_order": 113 }