STATE of North Carolina
v.
Michael S. BATES.
No. 647A82.
Supreme Court of North Carolina.
November 3, 1983.*261 Rufus L. Edmisten, Atty. Gen. by W. Dale Talbert, and David Roy Blackwell, Asst. Attys. Gen., Raleigh, for the State.
John G. Britt, Jr., and Richard B. Glazier, Asst. Public Defenders, Fayetteville, for defendant-appellant.
*262 BRANCH, Chief Justice.
Defendant first contends the trial court erred in denying his motion to dismiss the armed robbery charge for insufficiency of the evidence.
On a motion to dismiss on the ground of insufficiency of the evidence, the question for the court is whether there is substantial evidence of each element of the crime charged and of the defendant's perpetration of such crime. State v. Riddle, 300 N.C. 744, 268 S.E.2d 80 (1980). "The substantial evidence test requires that the evidence must be existing and real, not just seeming and imaginary." State v. Irwin, 304 N.C. 93, 97-98, 282 S.E.2d 439, 443 (1981).
In evaluating the motion, the trial judge must consider the evidence in the light most favorable to the State, allowing every reasonable inference to be drawn therefrom. State v. Thomas, 296 N.C. 236, 250 S.E.2d 204 (1978). When so considered, if the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator, the motion to dismiss should be allowed. State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967).
To withstand defendant's motion to dismiss in instant case, the State was required to show substantial evidence of each of the essential elements of the crime of robbery with a dangerous weapon. Under G.S. 14-87, an armed robbery is defined as the nonconsensual taking of the personal property of another in his presence or from his person by endangering or threatening his life with a firearm or other deadly weapon, with the taker knowing that he is not entitled to the property and intending to permanently deprive the owner thereof. State v. Davis, 301 N.C. 394, 271 S.E.2d 263 (1980); State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980).
Specifically, defendant argues that the State has not shown by substantial evidence a taking of the victim's property with the intent to permanently deprive him of its use.
The State relies on the fact that the deceased's property was found some distance from his body to establish a taking by defendant. In support of this position, the State analogizes the facts of this case to those presented in State v. King, 299 N.C. 707, 264 S.E.2d 40 (1980). In King, the State's evidence revealed that the victim, a taxi driver, usually wore a money pouch attached to his belt in which he placed the fares that he collected. On the day of the crime, the driver had collected $1.45 in fares. When his body was discovered, his belt had been cut and coins were found scattered around the body. The money pouch was located several hundred yards away.
The defendant argued that these facts were not sufficient to establish that he took anything of value from the deceased. This Court disagreed, holding that the defendant's motion to dismiss was properly denied. The Court found that these facts supported an inference that the defendant had possession and control of the money pouch and the coins and decided to discard them.
King is factually distinguishable from the instant case. In King, there was evidence that the victim's belt had been cut, thereby supporting an inference that the money pouch was forcibly taken. Here, there is no such clear physical evidence of a taking.
Furthermore, in King there was no evidence that the victim had ever been in the area where the pouch was found. Conversely, in this case the evidence clearly establishes that defendant and the deceased struggled violently in the grassy area where most of Warren's personal property was discovered.
Finally, defendant's uncontroverted testimony refutes a conclusion that he forcibly took these items of personal property from the victim with the intent to steal them.
We have consistently held that on a motion to dismiss, the court must consider the defendant's evidence which explains or clarifies that offered by the State. State v. Blizzard, 280 N.C. 11, 184 S.E.2d 851 (1971); State v. Bruton, 264 N.C. 488, 142 S.E.2d *263 169 (1965). The court must also consider the defendant's evidence which rebuts the inference of guilt when it is not inconsistent with the State's evidence. State v. Bruton, supra.
Defendant Bates' testimony in its entirety must be characterized as a clarification of the State's testimonial and physical evidence; it in no way contradicted the prosecution's case.
Defendant's testimony and the physical evidence reveal that a brutal fight took place between Bates and Warren. Blood of both defendant and the deceased was found on the items of personal property, on the hood of the automobile and on the ground. Conrad Rensch testified that there were numerous scuff marks in the dirt surrounding the automobile and in other areas in the clearing. It is also important to note that items of personal property belonging to defendant were also scattered throughout the field. Defendant testified that he never saw decedent's possessions nor was he aware of how they came to be strewn around the area.
When defendant's explanatory testimony is considered along with the physical evidence presented by the State, the logical inference is that the decedent lost these items of personal property during the struggle with defendant. There is simply no substantial evidence of a taking by defendant with the intent to permanently deprive Warren of the property. We therefore hold that defendant's motion to dismiss the charge of robbery with a dangerous weapon should have been granted.
We further note that defendant was found not guilty of premeditated and deliberated murder. He was convicted of felony murder, premised upon the commission of armed robbery. Because there was insufficient evidence to support the commission of the underlying felony, there is also insufficient evidence to support defendant's conviction of felony murder.
Because the possibility of retrial exists as to lesser charges, we address the following issues raised by defendant.
Defendant contends the trial court erred in admitting into evidence, over defendant's objection, testimony of Manuel Alvarez regarding a conversation he had with defendant several months prior to the date of the offense charged.
On rebuttal for the State, the witness Alvarez testified that he spoke with defendant in the fall of 1981 about methods of killing. Alvarez recalled telling defendant that if he were going to kill someone, he would use hand-to-hand combat. Defendant responded that he would be more inclined to use a handgun. Alvarez testified that he concluded the brief conversation by telling defendant that if he were to use a firearm, he would take the person to a secluded area to commit the killing. In response to questioning by defense counsel, Alvarez stated that this dialogue arose out of a conversation relating to fighting in the United States Army.
Defendant objects to the admission of this evidence on the ground that it has no logical or theoretical connection to the case at bar. The State, however, contends that defendant's statements to Alvarez were admissible to show premeditation and deliberation.
This Court has stated on numerous occasions that evidence is relevant and therefore admissible if it has any logical tendency to prove a fact in issue. E.g., State v. Arnold, 284 N.C. 41, 199 S.E.2d 423 (1973); State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190 (1968). The following passage from State v. Covington, 290 N.C. 313, 335, 226 S.E.2d 629, 645 (1976), quoting 1 Stansbury's North Carolina Evidence § 78, at 237 (Brandis rev. ed. 1973), is instructive:
The standard of admissibility based on relevancy and materiality is of necessity so elastic, and the variety of possible fact situations so nearly infinite, that an exact rule cannot be formulated. In attempting to express the standard more precisely, the Court has emphasized the necessity of a reasonable, or open and visible connection, rather than one which is remote, latent, or conjectural, between the evidence presented and the fact to be *264 proved by it, at the same time pointing out that the inference to be drawn need not be a necessary one.
(emphasis in original).
We perceive no open and visible connection between defendant's statements to Alvarez several months prior to Warren's death and the fact to be proved in instant case, that is, that the murder of Warren was committed by defendant with premeditation and deliberation. The remoteness of the connection between the conversation and the killing is not merely temporal. The State presented absolutely no evidence tending to logically connect this conversation with the death of Roy Lee Warren, Jr. The conversation did not include the name of the deceased, or of any individual. In fact, Alvarez testified that he and defendant were discussing methods of fighting in the army when this specific discussion arose. There is simply a dearth of evidence tending to show that in the fall of 1981, Michael Bates was planning the murder of Roy Lee Warren, Jr.
Since the State failed to provide any logically direct or circumstantial basis to connect this conversation with the crime charged, we must agree with defendant that the trial court erred in admitting this testimony.
Although we find error in the admission of the evidence, we conclude that the error was not prejudicial to defendant. Alvarez' testimony clearly related to the issue of premeditation and deliberation. The jury rejected this theory, however, finding defendant not guilty of first-degree murder on the basis of premeditation and deliberation. Defendant was convicted of felony murder and the testimony complained of does not relate to the elements of that offense. We therefore perceive no prejudice to defendant from the erroneous admission of this testimony.
Finally, defendant contends the trial court erred in denying his special request for a jury instruction as to the effect of circumstantial evidence when no direct evidence is presented.
The instruction requested by defendant should be given only when there is no direct evidence. If either the State or the defendant elicits direct evidence bearing on any issue for the jury's determination, then such an instruction is not appropriate.
Defendant's contention that the trial judge erroneously failed to give the requested instruction must be rejected for the reason that there was both direct and circumstantial evidence of defendant's perpetration of the crime charged. Defendant admitted fighting with Warren at the crime scene and admitted stabbing him several times with a knife. This was direct evidence supporting the trial court's instructions on first-degree murder, second-degree murder and voluntary manslaughter.
Admittedly, the vast majority of the evidence against defendant was circumstantial. Nevertheless, some direct evidence bearing on the issues submitted to the jury was presented and the trial judge therefore properly instructed on the concept of circumstantial evidence when direct evidence is also presented. This assignment is overruled.
For the reasons above stated, the judgment entered upon defendant's convictions of felony murder and robbery with a dangerous weapon is
REVERSED.