{
  "id": 8522205,
  "name": "STATE OF NORTH CAROLINA v. SAM COLVIN",
  "name_abbreviation": "State v. Colvin",
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    "judges": [
      "Judges Eagles and Smith concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. SAM COLVIN"
    ],
    "opinions": [
      {
        "text": "COZORT, Judge.\nDefendant was charged and convicted of conspiracy to commit robbery with a dangerous weapon and robbery with a dangerous weapon. From a judgment sentencing him to twenty years for the robbery, and three years consecutive for the conspiracy, defendant appeals. We hold that defendant received a fair trial, free of prejudicial error.\nThe State\u2019s evidence consists primarily of the testimony of John Earl Carthens, a co-conspirator and participant in the robbery, who testified under a plea arrangement with the State. Car-thens testified that on Sunday, 23 February 1986, he and Greg Colvin, defendant\u2019s brother, went to the Colvin home in Bladen County. While there, Greg initiated a conversation about robbing the bank in Tarheel, North Carolina. Carthens stated that, \u201cI told him I\u2019d help him out,\u201d and that defendant said, \u201che was gonna do it, help his brother out.\u201d\nThe next day, 24 February 1986, Greg Colvin brought Car-thens and defendant a jumpsuit, army pants, gloves, masks, and two sawed-off shotguns. The three men then rode together to Tar-heel where Greg let Carthens and defendant out, and they broke into a house behind the bank. There they changed into the clothes provided by Greg and waited for a signal from him to enter the bank. Upon receiving the signal, the two entered the bank with the shotguns and told the bank tellers that it was a stickup. After stuffing a bag and pillowcase with money, they fled the bank on foot and ran into the woods throwing off their disguises as they went.\nOn cross-examination there was some discrepancy in Car-thens\u2019 testimony as to whether defendant was present during the conversation about robbing the bank or if he even heard the conversation.\nWhen defendant took the stand, he testified that he did not recall talking with Carthens on 23 February 1986, and that he never participated in a discussion about robbing a bank. He also testified as to his activities during the day of 24 February 1986, and stated that he did not participate in or have any knowledge of a bank robbery.\nThe jury found defendant guilty of both conspiracy to commit robbery with a dangerous weapon and of robbery with a dangerous weapon. He was then sentenced to a twenty-year term for the robbery and a three-year term for the conspiracy, which terms were to run consecutively. From this judgment, defendant appeals.\nDefendant argues that the trial court erred in denying his motion to dismiss for failure to comply with the requirements of the Speedy Trial Act. We disagree.\nN.C. Gen. Stat. \u00a7 15A-701(al) provides in part:\nThe trial of the defendant charged with a criminal offense shall begin within the time limits specified below:\n(1) Within 120 days from the date the defendant is arrested, served with criminal process, waives an indictment, or is indicted, whichever occurs last; . . .\nN.C. Gen. Stat. \u00a7 15A-701(b) provides that in computing this 120-day period, the following periods are excluded:\n(1) Any period of delay resulting from other proceedings concerning the defendant including, but not limited to, delays resulting from:\nd. Hearings on any pretrial motions or the granting or denial of such motions.\nThe period of delay under this subdivision must include all delay from the time a motion or other event occurs that begins the delay until the time a judge makes a final ruling on the motion or the event causing the delay is finally resolved; . . .\nIn the case below, defendant filed a motion for change of venue on 23 April 1986. Although the motion to transfer the case from Bladen to Columbus County was granted on 7 August 1986, the order was not filed until 20 August 1986, and defendant\u2019s files did not reach the Clerk of Superior Court of Columbus County until 25 August 1986. The trial judge found that the time from defendant\u2019s filing of the motion until 25 August 1986 was excluded from the time requirements of the Speedy Trial Act. Defendant contends that the case was disposed of on 7 August 1986, when the motion was granted, and that the time between 7 August and 25 August 1986 should not be excluded from the time limits of the Speedy Trial Act. If this time is not excluded, then the 120-day time limit is exceeded.\nWhen the motion for change of venue is heard within a reasonable time after it is filed and the State does not delay the hearing for the purpose of thwarting the speedy trial statute, the time between the filing of the motion and its disposition is properly excluded in computing the time within which a trial must begin. State v. Overton, 60 N.C. App. 1, 298 S.E. 2d 695 (1982), disc. rev. denied and appeal dismissed, 307 N.C. 580, 299 S.E. 2d 652 (1983). We hold that this motion was not fully disposed of until 25 August 1986 when defendant\u2019s records reached Columbus County. When a motion for change of venue is granted, the transfer of records between counties is a part of the disposition of the motion, and some delay is impossible to avoid. Therefore, we find no error in the denial of defendant\u2019s motion to dismiss.\nDefendant next assigns as error three instances where Carthens was allowed to testify, over objection, as to Carthens\u2019 own willingness to participate in the robbery. Defense counsel objected three times to Carthens\u2019 testimony concerning Carthens\u2019 conversation with Greg Colvin about robbing the bank. Defendant contends that these statements were inadmissible in his trial because they did not establish a conspiracy between Carthens and defendant, but only between Carthens and Greg Colvin. Defendant also argues that there is no evidence that the statements about robbing the bank were directed to defendant or were stated in his presence. We find no merit in defendant\u2019s argument.\nThe State may \u201coffer the acts or declarations of a conspirator before the prima facie case of conspiracy is sufficiently established. Of course, the prosecution must properly prove the existence of the prima facie case of conspiracy before the close of the State\u2019s evidence in order to have the benefit of these declarations and acts.\u201d State v. Polk, 309 N.C. 559, 566, 308 S.E. 2d 296, 299 (1983). The State in this case sufficiently established the elements of a conspiracy and defendant\u2019s involvement in it subsequent to Carthens\u2019 testimony. The evidence presented by the State taken in the light most favorable to the State, showed that defendant was present when Carthens and Greg Colvin discussed robbing the bank, that he agreed to help, and that he engaged in elaborate preparations to rob the bank. Therefore, there was no error in allowing Carthens\u2019 testimony.\nNext, defendant argues that the trial court erred in allowing Carthens to testify concerning defendant\u2019s agreement to participate in the robbery. As to defendant\u2019s agreement to participate, Carthens testified as follows:\nQ. Did you have a conversation with Sam there at the house?\nA. Well, he ain\u2019t said that much, but he said he was gonna do it.\nQ. What did Sam say?\nA. He said he was gonna do it, help his brother out.\nQ. What, if anything, was your understanding as to what was to be done when Sam said that he would \u201cdo it\u201d?\nMr. Wood: Objection.\nThe Court: Overruled.\nThe Witness: Go to Tarheel Bank and rob it.\nDefendant argues that Carthens\u2019 testimony concerning defendant\u2019s intent when he said he was going to \u201cdo it\u201d was inadmissible as an improper conclusion by Carthens. We find this argument meritless.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 701, allows opinions by lay witnesses which are \u201c(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.\u201d We hold that Carthens\u2019 statement meets the requirements of Rule 701 and there was no error in allowing this statement. Furthermore, if there was any error, it was not prejudicial because there was ample other evidence to prove defendant\u2019s involvement in the conspiracy.\nDefendant next argues that the trial court erred in overruling defense counsel\u2019s objection to the introduction of a letter concerning Carthens\u2019 plea arrangement with the State. Defendant argues that the letter was self-serving, misleading, and contained conclusory statements. We find no error.\nN.C. Gen. Stat. \u00a7 15A-1055(a) provides that \u201cany party may examine a witness testifying under ... an arrangement under G.S. 15A-1054 [charge reductions or sentence concessions in consideration of truthful testimony] with respect to that . . . arrangement. A party may also introduce evidence ... in corroboration or contradiction of testimony or evidence previously elicited . . . concerning the . . . arrangement.\u201d This section is \u201caimed at ensuring that the jury be made aware that the witness is testifying under a grant of immunity or some other arrangement.\u201d State v. Morgan, 60 N.C. App. 614, 617, 299 S.E. 2d 823, 826 (1983).\nIn the case below, it was defense counsel who initially introduced evidence of Carthens\u2019 plea arrangement with the State. In addition, the contents of the letter were relevant to defendant\u2019s case and in no way prejudiced him. The letter merely informed the jury of Carthens\u2019 plea arrangement with the State and his interest in testifying against defendant. We find no error in the admission of this letter.\nDefendant next argues that the trial court erred in denying his motion to dismiss the conspiracy charge for insufficiency of the evidence. We find no error.\nOn a motion to dismiss the evidence must be considered in the light most favorable to the State, and the State must be given the benefit of every reasonable inference to be drawn therefrom. State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679 (1967). \u201cThe test of the sufficiency of the evidence to withstand such a motion is the same whether the evidence is circumstantial, direct, or both.\u201d Id. at 383, 156 S.E. 2d at 682.\nA criminal conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means. State v. Bindyke, 288 N.C. 608, 220 S.E. 2d 521 (1975). To constitute a conspiracy it is not necessary that the parties should have come together and agreed in express terms to unite for a common object; rather, a mutual, implied understanding is sufficient, so far as the combination or conspiracy is concerned, to constitute the offense. . . . The existence of a conspiracy may be established by direct or circumstantial evidence. \u201cDirect proof of the charge [conspiracy] is not essential, for such is rarely obtainable. It may be, and generally is, established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy. . . State v. Whiteside, 204 N.C. 710, 169 S.E. 711 (1933).\nState v. Abernathy, 295 N.C. 147, 164-65, 244 S.E. 2d 373, 384 (1978).\nIn this case, there was ample evidence of defendant\u2019s involvement in the conspiracy to withstand the motion to dismiss. The only direct evidence of defendant\u2019s guilt is Carthens\u2019 testimony that defendant said \u201che was gonna do it, help his brother out,\u201d which defendant contends is inadmissible. We have found that evidence to be admissible. In addition, there is enough circumstantial evidence to create an inference of defendant\u2019s guilt sufficient to withstand his motion to dismiss. The evidence shows that defendant accepted from his brother a jumpsuit, mask, gloves, and sawed-off shotgun for use in the robbery. He also rode with his brother and Carthens to Tarheel, where he and Carthens got out and broke into a house behind the bank. While in the house he and Carthens changed into the clothes provided by Greg Col-vin and waited there for a signal from him before entering the bank. Defendant\u2019s participation in these elaborate preparations for the robbery are sufficient alone to prove defendant\u2019s guilt. Therefore, we find no error in the trial court\u2019s denial of the motion to dismiss.\nFinally, defendant argues that the trial court erred in not finding defendant\u2019s limited mental capacity as a mitigating factor. We find no error.\nDefendant submitted a psychiatric history/evaluation from Dorothea Dix Hospital which stated that defendant was \u201cin the low borderline range of intellectual functioning\u201d and a letter from a psychiatrist which stated that defendant \u201cis functioning in the Borderline range of intellectual ability.\u201d On the basis of this evidence, defendant requested that the trial judge find his limited mental capacity as a mitigating factor under N.C. Gen. Stat. \u00a7 15A-1340.4(a)(2), which states:\n(2) Mitigating factors:\n* * * *\ne. The defendant\u2019s immaturity or his limited mental capacity at the time of commission of the offense significantly reduced his culpability for the offense.\nTo find a defendant\u2019s limited mental capacity as a mitigating factor, the statute requires that it significantly reduce the culpability for the offense. Although the reports submitted by defendant did establish his borderline intelligence, there was no evidence that defendant was unable to understand the consequences of his behavior so as to significantly reduce his culpability for the offense. Therefore, we find no error in the trial court\u2019s failure to find defendant\u2019s limited mental capacity as a mitigating factor.\nBased on the foregoing, we hold that defendant received a fair trial, free of prejudicial error.\nNo error.\nJudges Eagles and Smith concur.",
        "type": "majority",
        "author": "COZORT, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg by Assistant Attorney General William F. Briley for the State.",
      "William E. Wood for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. SAM COLVIN\nNo. 8713SC971\n(Filed 3 May 1988)\n1. Criminal Law \u00a7 91\u2014 speedy trial \u2014 time between filing change of venue motion and disposition \u2014 time properly excluded\nWhen a motion for change of venue is heard within a reasonable time after it is filed and the State does not delay the hearing for the purpose of thwarting the speedy trial statute, the time between the filing of the motion and its disposition is properly excluded in computing the time within which a trial must begin, and the time required to transfer records between counties is a part of the disposition of the motion. N.C.G.S. \u00a7 15A-701(b)(l)d.\n2. Criminal Law \u00a7 79.1\u2014 co-conspirator\u2019s testimony as to willingness to participate in crime \u2014admissibility before conspiracy established\nIn a prosecution of defendant for conspiracy to commit robbery with a dangerous weapon and robbery with a dangerous weapon, the trial court did not err in allowing a co-conspirator to testify about a conversation concerning his own willingness to participate in the robbery, since the acts and declarations of a co-conspirator are admissible before the prima facie case of conspiracy is sufficiently established, but the prosecution must properly prove the existence of the prima facie case of conspiracy before the close of the State\u2019s evidence in order to have the benefit of the acts and declarations; and the State in this case sufficiently established the elements of a conspiracy and defendant\u2019s involvement in it where the evidence tended to show that defendant was present when two others discussed robbing a bank, agreed to help, and engaged in elaborate preparations to rob the bank.\n3. Criminal Law \u00a7 79\u2014 co-conspirator\u2019s testimony as to what defendant meant\u2014 admissibility\nIn a prosecution for conspiracy to commit robbery with a dangerous weapon, a co-conspirator could properly testify that defendant meant he was going to rob a bank when he said he was going to \u201cdo it,\u201d since the statement was admissible as a lay opinion pursuant to N.C.G.S. \u00a7 8C-1, Rule 701.\n4. Criminal Law \u00a7 86.8\u2014 co-conspirator\u2019s plea arrangement \u2014 admissibility of evidence\nThe trial court did not err in allowing the introduction of a letter concerning a co-conspirator\u2019s plea arrangement with the State. N.C.G.S. \u00a7 15A-1055(a).\n5. Conspiracy \u00a7 6\u2014 conspiracy to commit robbery \u2014 sufficiency of evidence\nIn a prosecution for conspiracy to commit robbery with a dangerous weapon, evidence was sufficient to be submitted to the jury where a co-conspirator testified that defendant stated he was going to \u201cdo it\u201d; the co-conspirator stated that defendant meant he was going to rob the bank; defendant accepted from his brother a jumpsuit, mask, gloves, and sawed-off shotgun for use in the robbery; defendant rode with his brother and a co-conspirator to town where he and the co-conspirator got out and broke into a house behind the bank; and while in the house they changed into clothes provided by the brother and waited there for a signal from him before entering the bank.\n6. Criminal Law g 138.34\u2014 limited mental capacity \u2014 failure to find as mitigating factor\nThe trial court did not err in failing to find defendant\u2019s limited mental capacity as a mitigating factor where the reports submitted by defendant established his borderline intelligence, but there was no evidence that defendant was unable to understand the consequences of his behavior so as to significantly reduce his culpability for the offense. N.C.G.S. \u00a7 15A-1340.4(a)(2;.\nAPPEAL by defendant from Beaty, Judge. Judgment entered 30 April 1987 in Superior Court, COLUMBUS County. Heard in the Court of Appeals 8 March 1988.\nAttorney General Lacy H. Thornburg by Assistant Attorney General William F. Briley for the State.\nWilliam E. Wood for defendant appellant."
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  "file_name": "0050-01",
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