State v. Currie , 53 N.C. App. 485 ( 1981 )

WEBB, Judge.

The defendant assigns as error the denial of his motion to dismiss. He contends the State did not prove each element of the crime because the State did not have direct testimony that the property was taken without the consent of the owner. Without discussing the evidence in detail we hold there was substantial evidence from which the jury could conclude that the trailer and the tobacco were taken without the consent of the owner or either of the two bailees.

The defendant also assigns error to testimony elicited by the State from J. H. Pike. Mr. Pike had been indicted for the crime for which the defendant was being tried. He pled guilty and testified for the State. On direct examination Mr. Pike testified over the objection of the defendant as follows:

“Q. What did Mr. Currie tell you concerning that truck Mr. Foust got?

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A. He said whoever owned the truck had got behind with some payments, and they had to get shove of it, get shed of it, to make some payments on other trucks.

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Q. In your conversation before, and the remarks Mr. Currie made to you about the stolen Brock truck, was anything mentioned about insurance?

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A. Yes, sir.

Q. What was said?

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A. He said the man was behind with some payments, and he had to have some quick money.

Q. All right; so, what did he say about insurance, if anything?

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A. Let’s see, we had to give $3,000 or $4,000 for it, that was the first quick money. The next, I guess, was getting the insurance as far as I know.

Q. Well, did Mr. Currie say anything about insurance?

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A. He said he could collect insurance.”

The defendant contends this testimony tended to prove the defendant was guilty of insurance fraud, a crime unrelated to the crime for which he was being tried. We believe this assignment of error has merit. We do not believe this testimony had any relevancy except to show the character of the accused and it was error not to sustain the objections of the defendant. See 1 Stansbury’s N.C. Evidence § 91 (Brandis rev. 1973) and State v. McClain, 240 N.C. 171, 81 S.E. 2d 364 (1954). We cannot say that the admission of this testimony was harmless to the defendant beyond a reasonable doubt, and we hold there must be a new trial.

The State contends the defendant had opened the door to this testimony by the defendant’s cross-examination of Benjamin Foust, a witness for the State. Mr. Foust pled guilty to the crime for which the defendant was charged and testified for the State. On cross-examination by the defendant’s attorney he stated that he had seen the defendant when he looked at the truck at the 74 Truck Stop. We do not believe this opened the door for testimony as to an insurance fraud. The State also contends that on cross-examination of Mr. Foust by the attorney for David Brock, testimony was given which entitled the State to question Mr. Pike as it did. During the cross-examination of Foust by Brock’s attorney, Mr. Currie’s name was not mentioned. There were some questions about a truck but no mention was made of insurance fraud. If a co-defendant’s counsel by cross-examination could open the door to testimony against Mr. Currie, it was not done in this case.

We do not discuss the defendant’s other assignments of error as they may not recur at a new trial.

New trial.

Judges Hedrick and Arnold concur.