State v. Ayudkya

386 S.E.2d 604 (1989)

STATE of North Carolina v. Thanawuth I. Na AYUDKYA a/k/a Tuie

No. 894SC273.

Court of Appeals of North Carolina.

December 19, 1989.

*605 Attorney Gen. Thornburg by Associate Atty. Gen. David N. Kirkman, Raleigh, for the State.

Philip E. Williams, Roseboro, for defendant-appellant.

EAGLES, Judge.

Defendant makes two arguments on appeal. First, defendant asserts that the trial court erred in denying his motion to dismiss the conspiracy charge. Second, defendant asserts that the trial court erred in allowing the admission of Malarchek's prior statement. After consideration of defendant's arguments and careful review of the record, we find no error.

Defendant argues that the conspiracy charge should have been dismissed because there was no substantive evidence of his agreement to rob the Lockamys. Defendant asserts that Malarchek's testimony never showed an agreement was reached and Malarchek's prior statement was admitted for corroboration, not as substantive evidence. Therefore, defendant *606 asserts there was no evidence of a conspiracy. We find no merit in defendant's argument.

"A criminal conspiracy is the unlawful concurrence of two or more persons in a wicked scheme the combination or agreement to do an unlawful thing or to do a lawful thing in an unlawful way or by unlawful means.... No overt act is necessary to complete the crime of conspiracy. `As soon as the union of wills for the unlawful purpose is perfected, the offense of conspiracy is completed.'" A criminal conspiracy may be established by circumstantial evidence from which the conspiracy may be legitimately inferred.

State v. Branch, 288 N.C. 514, 535, 220 S.E.2d 495, 509-10 (1975) (citations omitted), cert. denied, 433 U.S. 907, 97 S. Ct. 2971, 53 L. Ed. 2d 1091, (1977), rev'd on other grounds, State v. Adcock, 310 N.C. 1, 310 S.E.2d 587 (1984). The existence of a conspiracy may be established by direct or circumstantial evidence. "Direct proof of [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, 712, 169 S.E. 711, 712 (1933). Upon a motion to dismiss in a criminal case, the court considers the evidence in the light most favorable to the State, resolves all contradictions and discrepancies in the State's favor and gives the State the benefit of every reasonable inference which can be drawn from the evidence. See State v. Abernathy, 295 N.C. 147, 165, 244 S.E.2d 373, 384-85 (1978).

Here there was circumstantial evidence that tended to show that defendant had agreed with Powers at some earlier time to rob the Lockamys. The Lockamys testified that defendant was unusually nervous during the visit just prior to the robbery. Additionally, the victims' testimony reveals circumstances that show a prior agreement regarding the robbery: Powers asked about Mr. Lockamy's elderly aunt although only defendant had known she lived in the Lockamys' house; defendant knew to go out to the car and retrieve duct tape to bind the victims after they had been detained; and, when the robbery began, defendant was the first one to act and he said "lets do it now" as he grabbed Mrs. Lockamy. Taken together, this evidence is sufficient to show that defendant knew in advance that a robbery was going to occur, that he participated with Powers in the robbery with each having preassigned roles and that defendant and Powers conspired to commit the robbery.

Defendant's second argument is that the trial court erred in allowing the admission of Malarchek's prior statement. Defendant argues that the State used Rule 607 of the North Carolina Rules of Evidence as a subterfuge for the admission of otherwise impermissible hearsay. Rule 607 provides that "[t]he credibility of a witness may be attacked by any party, including the party calling him." G.S. 8C-1, Rule 607. Defendant asserts that State v. Burton, 322 N.C. 447, 368 S.E.2d 630 (1988) is dispositive of this issue. In Burton, our Supreme Court stated that where a witness's prior statement contradicted his sworn testimony, the prior statement "was not admissible under the guise of corroborative evidence." 322 N.C. at 451, 368 S.E.2d at 633. The prior statement made by Malarchek was introduced to "corroborate or impeach, whatever happens." The State argues that the admission of the prior statement for purposes other than substantive was an attempt to rehabilitate the witness. The prior statement corroborated Malarchek's direct testimony although it tended to impeach his cross-examination testimony. Therefore, the State argues the statement was properly introduced. We agree.

As this court has stated previously, there is a danger that Rule 607, if not applied cautiously, would make "fair game" almost any out-of-court statement made by a witness. State v. Bell, 87 N.C.App. 626, 633, 362 S.E.2d 288, 292 (1987). This is especially true when Rule 607 is combined with our rule allowing use of prior consistent *607 statements for corroboration. See e.g., State v. Ramey, 318 N.C. 457, 468-69, 349 S.E.2d 566, 573-74 (1986). In the instant case Malarchek testified on direct examination that he, defendant and Powers had discussed robbing Mrs. Lockamy and that they attempted to rob her in the afternoon of the 18th of April. On cross-examination, however, Malarchek testified that defendant was not with Powers and him when they went to the Lockamys' house in the afternoon. Malarchek's prior statement was that the three men had made plans to rob Mrs. Lockamy at her restaurant and, after that plan fell through, at her home. There was also testimony that Malarchek had changed his story "eleven or so times" prior to giving the officer a statement. Though not offered as substantive evidence, the prior statement was admitted for a limited purpose, impeachment or corroboration, whichever the jury found. We find no merit in defendant's argument that the statement was erroneously admitted.

In the trial, we find no error.

PARKER and GREENE, JJ., concur.