{
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  "name": "STATE OF NORTH CAROLINA v. TERRY SAUNDERS",
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  "casebody": {
    "judges": [
      "Judges WHICHARD and PHILLIPS concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. TERRY SAUNDERS"
    ],
    "opinions": [
      {
        "text": "VAUGHN, Chief Judge.\nOn direct examination, Officer Muse testified that he was familiar with defendant\u2019s residence and that he knew defendant lived there. Defendant contends this evidence was improperly admitted in that the State did not lay a proper foundation. We find no merit in defendant\u2019s contention. There is nothing in the record to indicate that the Officer\u2019s testimony was not based on personal knowledge. Defendant had an opportunity to cross-examine Officer Muse regarding such stated facts and did not do so.\nIn cases involving disputes over land ownership, we have held that a witness may testify as to another\u2019s possession of a tract of land so long as the witness is subject to cross-examination. See Berry v. Coppersmith, 212 N.C. 50, 193 S.E. 3 (1937); Bryan v. Spivey, 109 N.C. 57, 13 S.E. 766 (1891). The same principles apply here. Furthermore, Officer Muse\u2019s testimony was properly admitted for purposes of explaining the subsequent conduct of Officer Muse and Ms. Council. See State v. Johnson, 176 N.C. 722, 97 S.E. 14 (1918).\nOfficer Muse testified further on direct examination that he began an investigation of defendant\u2019s residence after learning from confidential, reliable sources of drug activities at such residence. Defendant excepts to this testimony as inadmissible hearsay. We disagree.\nHearsay is the assertion of any person, other than that of the witness himself in his present testimony, offered to prove the truth of matter asserted. If offered for any other purposes, it is not hearsay. 1 Brandis on North Carolina Evidence \u00a7 138 (1982) (and cases cited therein). Officer Muse\u2019s testimony was not offered to prove that drug activities were being conducted at defendant\u2019s residence. Rather, it was offered to explain the Officer\u2019s subsequent conduct in setting up the drug buy between defendant and Ms. Council. \u201cThe statements of one person to another are admissible to explain the subsequent conduct of the person to whom the statement is made.\u201d State v. White, 298 N.C. 430, 437, 259 S.E. 2d 281, 286 (1979); see also State v. Potter, 295 N.C. 126, 244 S.E. 2d 397 (1978); State v. Irick, 291 N.C. 480, 231 S.E. 2d 833 (1977).\nAfter trial, the judge properly instructed the jury regarding the evidence presented and law to apply. The jury deliberated and then returned to the courtroom with three questions. The jury asked: (1) how the defendant discovered he was under arrest; (2) whether Ms. Council had been accepted into the police academy prior to the incident in question; and (3) if the defendant would stand up and smile. The judge responded, we think properly, that these questions had no bearing on the jury\u2019s task of determining the credibility of the witnesses who testified and whether their testimonies showed beyond a reasonable doubt that defendant was guilty.\nDefendant contends that the judge\u2019s remarks reflected a biased opinion in violation of G.S. 15A-1232. Defendant\u2019s contention is without merit.\nG.S. 15A-1232 states: \u201cIn instructing the jury, the judge must declare and explain the law arising on the evidence. He is not required to state the evidence except to the extent necessary to explain the application of the law to the evidence. He must not express an opinion whether a fact has been proved.\u201d (Emphasis added.)\nAnswers to the jury\u2019s questions were unnecessary in order to apply the law to the evidence. The trial judge was impartial regarding the substantive elements in this case. In short, defendant received a fair jury trial. See State v. Frazier, 278 N.C. 458, 180 S.E. 2d 128 (1971); State v. McBryde, 270 N.C. 776, 155 S.E. 2d 266 (1967). We do not find the judge\u2019s refusal to answer the jury\u2019s questions pertaining to evidence extraneous to the charges nor his remarks regarding the pertinence of such evidence to be prejudicial to defendant. See State v. Cox, 6 N.C. App. 18, 169 S.E. 2d 134 (1969).\nA judge is \u201cnot required to instruct the jury as to eviden-tiary matters essentially \u2018subordinate,\u2019 i.e., those which do not relate to the elements of the crime charged or to defendant\u2019s criminal responsibility.\u201d State v. Ward, 300 N.C. 150, 155, 266 S.E. 2d 581, 585 (1980). The trial judge used proper discretion. Defendant failed to prove he was prejudiced by the use of such discretion.\nIn his last Assignment of Error, defendant charges that the trial court erred in denying defendant\u2019s motion to set aside the verdict as contrary to the evidence. Defendant\u2019s charge is without merit. \u201cA motion to set aside the verdict as being contrary to the greater weight of the evidence is addressed to the discretion of the trial judge and is not reviewable on appeal in the absence of abuse of that discretion.\u201d State v. Boykin, 298 N.C. 687, 702, 259 S.E. 2d 883, 892 (1979), cert. denied, 446 U.S. 911 (1980). Here, there was no abuse of discretion. The record indicates substantial evidence warranting submission of the case to the jury. The jury reviewed the State\u2019s evidence and returned a verdict for the State.\nNo error.\nJudges WHICHARD and PHILLIPS concur.",
        "type": "majority",
        "author": "VAUGHN, Chief Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorney Newton G. Pritchett, Jr., for the State.",
      "B. Frank Bullock, for the defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. TERRY SAUNDERS\nNo. 8214SC1010\n(Filed 4 October 1983)\n1. Narcotics \u00a7 3.1\u2014 familiarity with defendant\u2019s residence\nIn a prosecution for the sale of a controlled substance, an officer was properly permitted to testify that he was familiar with defendant\u2019s residence and that he knew defendant lived there.\n2. Narcotics \u00a7 3.1\u2014 testimony concerning investigation of defendant\u2019s residence\nAn officer\u2019s testimony that he began an investigation of defendant\u2019s residence after learning from confidential, reliable sources of drug activities at such residence was not hearsay and was properly admitted to explain the officer's subsequent conduct in setting up a drug buy from defendant at the residence.\n3. Criminal Law \u00a7 122.1\u2014 questions by jury \u2014 instructions by court \u2014 no expression of opinion\nWhere the jury in a prosecution for the sale of a controlled substance returned to the courtroom during deliberations and asked (1) how defendant discovered he was under arrest, (2) whether the person who made the drug buy had been accepted into the police academy prior to the buy, and (3) to have defendant stand up and smile, the trial court did not express an opinion in instructing the jury that such questions had no bearing on the jury\u2019s task of determining the credibility of the witnesses and whether their testimony showed beyond a reasonable doubt that defendant was guilty. G.S. 15A-1232.\nAPPEAL by defendant from McLelland, Judge. Judgment entered 3 June 1982 in Superior Court, DURHAM County. Heard in the Court of Appeals 29 August 1983.\nDefendant was charged with selling or delivering a controlled substance. The State\u2019s evidence tended to show: Upon request from Officer J. T. Muse, an Investigator with the Durham Vice Narcotics Division, Ms. Beverly Council, a recruit to the Public Safety Academy, went to defendant\u2019s residence in order to purchase the drug, Phenmetrazine. Defendant sold her a pill, which proved, after analysis, to be Schedule II controlled substance, Phenmetrazine. Defendant stipulated to this fact.\nFrom a jury verdict convicting defendant, defendant appeals.\nAttorney General Edmisten, by Associate Attorney Newton G. Pritchett, Jr., for the State.\nB. Frank Bullock, for the defendant appellant."
  },
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