State v. Yellorday

• Decision Date: 12 July 1979
• Docket Number: No. 81,81
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Alton Ray YELLORDAY and Ricky Nelson.

Page 205

256 S.E.2d 205

297 N.C. 574

STATE of North Carolina v. Alton Ray YELLORDAY and Ricky Nelson.

No. 81.

Supreme Court of North Carolina.

July 12, 1979.

Rufus L. Edmisten, Atty. Gen., and Charles J. Murray, Asst. Atty. Gen., Raleigh, for the State.

Dwight L. Cranford, Roanoke Rapids, for Ricky Nelson, defendant.

H. P. McCoy, Jr., Scotland Neck, for Alton Ray Yellorday, defendant.

SHARP, Chief Justice.

We consider first defendants' assignment of error No. 6, that the trial judge erred in denying their motions for judgments as of nonsuit at the close of the State's evidence. In a criminal case the rule is that, upon a motion to nonsuit, the court must consider the evidence "in the light most favorable to the State, all contradictions and discrepancies therein must be resolved in its favor and it must be given the benefit of every reasonable inference to be drawn from the evidence." State v. Cutler, 271 N.C. 379, 382, 156 S.E.2d 679, 681 (1967). Under this rule, defendants concede that the State's evidence withstands their motion to dismiss the charge of burglary. They argue, however, that there was not sufficient evidence to go to the jury on the charge that defendants robbed Emma Powell.

For some reason, unfathomable to us, the district attorney chose to charge defendants with feloniously taking two dollars from the person, dwelling and presence of Emma Powell by the use of a dangerous weapon, an ax, whereby her life was endangered without making a similar charge against defendants with reference to the taking of $62.00 from the person of Ned Powell. Notwithstanding, we hold that the testimony of Emma on direct examination, standing alone, is sufficient to support both the charge of armed robbery and the verdict of the lesser included offense of common-law robbery. "Robbery at common law is the felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence of putting him in fear. . . . It is not necessary to prove both violence and putting in fear proof of Either is sufficient. (Citations omitted.)" State v. Moore, 279 N.C. 455, 457, 183 S.E.2d 546, 547 (1971). Also see State v. Bailey, 278 N.C. 80, 178 S.E.2d 809 (1971), Cert. denied 409 U.S. 948, 93 S.Ct. 293, 34 L.Ed.2d 218 (1972).

Emma testified that defendants smashed through the bedroom door with an ax, demanded money, and ransacked the room hunting for it. At that time she had a black pocketbook containing about two dollars behind her bed. When she tried to escape from the house defendant Yellorday grabbed her and carried her out of the house, threw her down on the ground, and brutally assaulted her. The next morning she said she found the pocketbook in the middle of the road in front of the house. The clear implication is that one of the defendants took the pocketbook, rifled it and then discarded it. However, even if the pocketbook were empty, the circumstances of its taking constitutes robbery.

On cross-examination Emma said that neither of the defendants ever took any money from her. Construing this statement in the light of defendants' actions after they burst into the Powells' bedroom, we deduce that Emma was saying that defendants did not take money from her person as they had done from the person of Ned. In any event, this statement does not bear upon the motion for nonsuit. "Contradictions and discrepancies are for the jury to resolve and do not warrant nonsuit." State v. McKinney, 288 N.C. 113, 117, 215 S.E.2d 578, 581 (1975). Defendants' assignment No. 6 is overruled.

Defendants' first assignment challenges the admissibility of the testimony of Ned and Emma Powell that on 3 January 1977, the day Ned received his check from the Social Security Disability Program, defendants came upon the Powells' front porch and robbed Ned of the proceeds of that check, and that this crime was not reported to the police because of Ned's fear of reprisals by defendants. Defendants argue that this incident was "another distinct, independent, or separate offense" and this evidence was erroneously admitted to their prejudice. This contention is without merit.

In a criminal prosecution "(e)vidence of other offenses is inadmissible on the issue of guilt if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged; but if it tends to prove any other relevant fact it will not be excluded merely because it also shows him to have been guilty of an independent crime." State v. Stegmann, 286 N.C. 638, 652, 213 S.E.2d 262, 272, Death sentence vacated, 428 U.S. 902, 96 S.Ct. 3203, 49 L.Ed.2d 1205 (1975); State v. McClain, 282 N.C. 357, 361, 193 S.E.2d 108, 111 (1972); 1 Stansbury's N. C. Evidence, § 91 (Brandis Rev. 1973). Thus, evidence revealing the commission of an independent offense is admissible "when it tends to establish a common plan or scheme embracing the commission of a series of crimes so related to each other that proof of one . . . tends to prove the crime charged and to connect the accused with its commission"; or, when such evidence discloses acts or declarations tending to prove that the accused possessed a specific intent or mental state which is an essential element of the crime charged. State v. Hunter, 290 N.C. 556, 573-75, 227 S.E.2d 535, 545, Cert. denied, 429 U.S. 1093, 97 S.Ct. 1106, 51 L.Ed.2d 539 (1976).

The Powells' testimony regarding the January robbery was properly admitted under the foregoing principles. When the January robbery and the February robberies are considered together their interrelation is clear: (1) Both robberies occurred at the Powell residence; (2) Ned Powell was the sole victim in the first robbery, the principal victim in the second; (3) defendants acting together were the sole perpetrators of the two robberies; and (4) both offenses, occurring within a month of each other, were committed on the 3rd of the month, the day on which Ned generally received his monthly social security check. Manifestly, the challenged testimony is relevant to show that when defendants entered the Powell residence on 3 February 1977 their purpose was to rob Ned of the proceeds of his monthly check. Assignment No. 1 is not sustained.

Defendants next contend that the trial court, "by its prolonged interrogation of the witness, Ned Powell" expressed an opinion in violation of G.S. 1-180. A trial judge's questions, propounded to a witness to clarify his confusing or contradictory testimony, do not constitute an expression of opinion unless a jury could reasonably infer that the questions intimated the court's opinion as to the witness's credibility, the defendants' guilt, or as to a factual controversy to be resolved by the jury. State v. Tinsley, 283 N.C. 564, 196 S.E.2d 746 (1973); 4 Strong's N.C.Index 3rd, Criminal Law, §§ 99.8, 99.9 (1976). From the record in this case it is crystal clear that the questions which Judge James asked Ned were solely for the purpose of clarifying his confused and sometimes conflicting testimony. The jurors, who heard the disabled, arthritic 61-year-old man "get it straight," only to be confused again by the next set of questions, were bound to have understood (and sympathized with) the trial judge's efforts to "see...