State v. Adams , 46 N.C. App. 57 ( 1980 )

PARKER, Judge.

Defendants assign error to the denial of their motions made pursuant to G.S. 15A-1227 to dismiss the charges against them for insufficiency of the evidence to sustain the convictions. We find the evidence sufficient to sustain the convictions of the defendant Jerry Wayne Adams, but insufficient to sustain the convictions of the defendant Lisa Diane Jackson Adams.

There was uncontradicted evidence that the Lovette home was broken into and a large number of guns were taken therefrom by someone without authority of the owner. There was evidence that on the same night the break-in occurred the defendant Jerry Adams had these guns in his possession and traded them for heroin. Standing alone, the evidence showing Jerry Adams’s possession of the stolen property so soon after the theft as to render it unlikely that he could have acquired the property honestly would give rise to a reasonable inference that he was guilty both of the larceny and of the breaking and entering by which the larceny was accomplished. State v. Jackson, 274 N.C. 594, 164 S.E. 2d 369 (1968); State v. Blackmon, 6 N.C. App. 66, 169 S.E. 2d 472 (1969). This inference was strengthened in the present case by the evidence that prior to the break-in Jerry Adams had had opportunity to know both that the guns were in the Lovette house and that their owner would be absent, that early in the evening on the date of the break-in he asked the drug dealer if he wanted “to buy some guns later on that night, that he was going to get some,” and that when he traded the guns he told the drug dealer “he had gotten the guns out of a house in Grays Creek” but that the drug dealer “didn’t have anything to worry about because the man was out of town.” Thus, there was ample evidence to sustain the convictions of Jerry Adams, and his motions challenging the sufficiency of the evidence was properly denied.

The evidence against the defendant Lisa Adams was quite different. All that the evidence shows against her is that she accompanied her husband when he first approached the drug dealer and inquired if the dealer wanted to buy some guns later that night (though it is not clear from the evidence in the record whether she was then so situated as to have been able to hear that conversation), that later that night she accompanied her husband and brother when they brought the guns to the drug dealer’s home, that she was present while her husband negotiated the trade of the guns for heroin, and that during those negotiations she picked up “two or three of the guns” and at one point remarked that one of the guns looked like it was very old and “ought to be worth a lot of money.” While this evidence strongly suggests that Lisa Adams may have known that the guns had been stolen, in our opinion it falls short of supporting an inference that she was the thief. Her motion for dismissal should have been allowed.

We find no merit in the contention of the defendant Jerry Adams that the court erred in permitting the State, over his objection, to recall the witness James Lovette after he had already testified on direct examination, cross-examination and re-direct examination. Permitting a witness to be recalled and testify, although his later testimony might be contradictory to that previously given, is a matter within the sound discretion of the trial judge and is not reviewable upon appeal absent a showing of abuse of discretion. Hunter v. Sherron, 176 N.C. 226, 97 S.E. 5 (1918); 1 Stansbury’s N.C. Evidence (Brandis Rev.) § 24. No abuse of discretion has been here shown.

The result is:

On the appeal of the defendant Jerry Wayne Adams, we find

No error.

On the appeal of the defendant Lisa Diane Jackson Adams,

Judgment reversed.

Judges MARTIN (Harry C.) and HILL concur.