{
  "id": 8358014,
  "name": "STATE OF NORTH CAROLINA v. KENNETH MOORE",
  "name_abbreviation": "State v. Moore",
  "decision_date": "1987-09-15",
  "docket_number": "No. 8718SC20",
  "first_page": "156",
  "last_page": "160",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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      "cite": "315 N.C. 76",
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  "last_updated": "2023-07-14T18:10:55.356094+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Chief Judge HEDRICK and Judge ORR concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. KENNETH MOORE"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nDefendant first contends the trial court erred in admitting Virginia Moore\u2019s statements to Officers Hoyle and Fuller under G.S. 8C-1, Rule 804(b)(5).\nBefore hearsay testimony can be admitted under Rule 804(b) (5), the trial judge must first find that the declarant is unavailable and then engage in a six-part inquiry set out in State v. Smith, 315 N.C. 76, 337 S.E. 2d 833 (1985). State v. Triplett, 316 N.C. 1, 340 S.E. 2d 736 (1986). The six-part inquiry is as follows:\n(1) Has proper notice been given?\n(2) Is the hearsay not specifically covered elsewhere?\n(3) Is the statement trustworthy?\n(4) Is the statement material?\n(5) Is the statement more probative on the issue than any other evidence which the proponent can procure through reasonable efforts?\n(6) Will the interests of justice be best served by admission?\nSmith, 315 N.C. at 92-96, 337 S.E. 2d at 844-46.\nDefendant specifically argues that the trial court erred in failing to determine whether the hearsay statements were covered by any of the other exceptions and in failing to enter this conclusion on the record. In order for a statement to fall within the 804(b)(5) hearsay \u201ccatchall\u201d exception, the statement must not be admissible under any other exception to the hearsay rule. Detailed findings of fact are not required, but the trial judge must enter his conclusion in the record. Id.\nAlthough there is no specifically stated conclusion that the statements are not covered elsewhere, such conclusion is inherently implicit. At voir dire, the prosecutor argued that Virginia Moore\u2019s statements were admissible under Rules 803(1), 803(2) and 804(b)(5). In its order, the trial court concluded that the statements were admissible under 804(b)(5). This conclusion clearly implies that the statements were not admissible under 803(1), 803(2) or any other exception. While we are compelled to find that the trial court erred in failing to explicitly state its conclusion, we hold that defendant was in no way prejudiced by such error.\nDefendant also argues that the statements do not possess the required circumstantial guarantees of trustworthiness. We disagree. The threshold determination of trustworthiness has been called the most significant requirement of admissibility under the residual hearsay exception. Id. Findings of fact and conclusions of law as to the trustworthiness requirement must appear in the record. Id. After a careful review of the record, we hold that there are sufficient findings to support the trial court\u2019s conclusion that the statements possess the requisite \u201ccircumstantial guarantees of trustworthiness.\u201d\nDefendant further argues that the trial court erred in failing to enter a conclusion on the record that the admission of the statements will best serve the general purposes of the rules of evidence.\nThe trial court concluded that \u201cthe general purpose in the interest of justice will best be served by the admission of these statements into evidence. . . .\u201d This is clearly sufficient under the Smith inquiry. Defendant\u2019s argument is wholly devoid of merit.\nDefendant next assigns as error the trial court\u2019s failure to grant his motion to dismiss the second-degree murder charge because the evidence was insufficient.\nWhen a defendant moves for dismissal based on insufficiency of the evidence, the trial court must determine whether there is substantial evidence of each essential element of the offense charged, and evidence of defendant being the one who committed the crime. State v. Bullard, 312 N.C. 129, 322 S.E. 2d 370 (1984).\nDefendant was charged with second-degree murder under a theory of acting in concert. A defendant acts in concert with another to commit a crime when he acts in harmony or in conjunction with another pursuant to a common criminal plan or purpose. State v. Diaz, 317 N.C. 545, 346 S.E. 2d 488 (1986). However it is not necessary for a defendant to do any particular act constituting at least part of a crime in order to be convicted of that crime under the concerted action principle so long as he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime. State v. Joyner, 297 N.C. 349, 255 S.E. 2d 390 (1979).\nThe evidence tended to show that the two brothers arrived with a gun. Defendant had possession of the gun and pointed it towards the victim. A struggle ensued and the victim ran into a bedroom. The brothers followed and Tim Moore shot the victim. This evidence was more than sufficient to support the trial court\u2019s denial of defendant\u2019s motion to dismiss.\nDefendant finally contends the trial court committed plain error when it instructed the jury on acting in concert. Defendant failed to object to the instructions at trial and bases his plain error allegation on his assertion that there is no evidence to support a theory of acting in concert. Having already dealt with the sufficiency of evidence supporting the theory of acting in concert, this contention has been answered. Defendant\u2019s contention that the trial court committed plain error when it instructed the jury on acting in concert is without merit.\nNo error.\nChief Judge HEDRICK and Judge ORR concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General Steven F. Bryant, for the State.",
      "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Leland Q. Towns, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. KENNETH MOORE\nNo. 8718SC20\n(Filed 15 September 1987)\n1. Criminal Law \u00a7 73.2\u2014 hearsay testimony \u2014 admission under Rule 804(b)(5) \u2014 statements not admissible under another exception \u2014absence of explicit finding \u2014 harmless error\nAlthough the trial court erred in admitting hearsay statements under N.C.G.S. \u00a7 8C-1, Rule 804(b)(5) without explicitly stating its conclusion that the hearsay statements were not admissible under any other exception to the hearsay rule, defendant was not prejudiced by such error where such a conclusion was implicit in the court\u2019s order admitting the statements.\n2. Criminal Law \u00a7 73.2\u2014 hearsay testimony \u2014admission under Rule 804(b)(5) \u2014 guarantees of trustworthiness \u2014purpose of Rules of Evidence\nIn admitting hearsay statements under Rule 804(b)(5), the trial court made sufficient findings to support its conclusion that the statements possessed the requisite \u201ccircumstantial guarantees of trustworthiness.\u201d Furthermore, the court\u2019s conclusion that \u201cthe general purpose in the interest of justice will best be served by the admission of these statements into evidence\u201d was a sufficient determination that admission of the statements will best serve the general purposes of the Rules of Evidence.\n3. Homicide \u00a7 21.7\u2014 second degree murder \u2014acting in concert \u2014 sufficiency of evidence\nThe evidence was sufficient to sustain defendant\u2019s conviction of second degree murder under a theory of acting in concert where it tended to show that defendant and his brother arrived at the victim\u2019s apartment with a gun; defendant pointed the gun at the victim and a struggle ensued; when the victim ran into a bedroom, defendant\u2019s brother took the gun from defendant; both brothers followed the victim into the bedroom; and defendant\u2019s brother then shot the victim.\nAPPEAL by defendant from Cornelius, Judge. Judgment entered 7 August 1986 in Superior Court, GUILFORD County. Heard in the Court of Appeals 31 August 1987.\nDefendant was charged in a proper bill of indictment with the second-degree murder of Keith Patrick. Defendant was found guilty and sentenced to a fifteen year term of imprisonment.\nAt trial, evidence was presented tending to show the following facts. On 21 September 1980, Keith Patrick, Clarence Rudd, and Virginia Moore, defendant\u2019s sister, were watching television at Patrick\u2019s apartment. Defendant and his brother, Tim Moore, arrived at the apartment with a gun. Virginia Moore met her brothers outside and asked them not to start any trouble. She then went back inside the apartment. Shortly thereafter, the brothers called Patrick outside and asked him something. Patrick gave them a short answer and went back inside the apartment. Defendant and his brother followed him. Defendant pointed the gun at Patrick and a struggle ensued. Rudd ran out the door and Patrick ran into a back bedroom and picked up the telephone. At that point, defendant had the gun. Tim Moore then took the gun from defendant and both brothers followed Patrick to the back bedroom where Tim Moore shot Patrick. Both brothers immediately fled.\nShortly after the shooting, the police arrived. Virginia Moore gave a detailed statement to Officer Hoyle at the apartment and a similar statement to Officer Fuller at the police station. In her statement to Officer Fuller, Virginia Moore stated that, \u201cBoth Kenneth and Timothy had knocked Keith down onto the bed somehow, I don\u2019t know. At this time, Tim shot Keith. After they shot Keith, they took off and ran to the car and left.\u201d\nA week later, Virginia Moore gave another statement to the investigator for the public defender\u2019s office. This statement was to the effect that defendant attempted to stop the shooting.\nAt trial, Virginia Moore refused to testify.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Steven F. Bryant, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Leland Q. Towns, for defendant appellant."
  },
  "file_name": "0156-01",
  "first_page_order": 184,
  "last_page_order": 188
}
