Opinion
No. COA12–1075.
2013-06-18
STATE of North Carolina v. Antonio Pirrie COLEMAN, Defendant.
Roy Cooper, Attorney General, by Dahr Joseph Tanoury, Special Deputy Attorney General, for the State. Staples Hughes, Appellate Defender, by Emily H. Davis, Assistant Appellate Defender, for defendant-appellant.
Appeal by defendant from judgments entered 3 February 2012 by Judge Hugh B. Lewis in Mecklenburg County Superior Court. Heard in the Court of Appeals 25 March 2013. Roy Cooper, Attorney General, by Dahr Joseph Tanoury, Special Deputy Attorney General, for the State. Staples Hughes, Appellate Defender, by Emily H. Davis, Assistant Appellate Defender, for defendant-appellant.
MARTIN, Chief Judge.
Defendant Antonio Pirrie Coleman appeals his conviction of common law robbery, assault inflicting serious bodily injury, and being a habitual felon. We find no error.
The State presented evidence at trial tending to show on 8 March 2009 while monitoring surveillance cameras, Alvin Ingram, a Target loss prevention employee, observed defendant enter the Target store on Metropolitan Avenue in Charlotte, North Carolina. Defendant was accompanied by one Chris Smith and an unidentified male juvenile. Ingram then observed defendant, Smith, and the juvenile put videos and fragrances in their shopping cart and proceed to the automotive department. While in the automotive department, Smith took the fragrances out of their packaging and began concealing them in his pants. Defendant and the juvenile positioned themselves at the ends of the aisle and acted as lookouts while Smith concealed the fragrances. Defendant also concealed items in his pants.
Ingram, his manager, Jennifer Urig–Smith, and another loss prevention officer, Christopher Tynes, confronted defendant, Chris Smith, and the juvenile as they exited the store. UrigSmith identified herself as Target security and asked to speak to Chris Smith about the merchandise on his person. Chris Smith refused, and when Urig–Smith moved to apprehend him, Chris Smith struck Urig–Smith in the face and knocked her to the ground. Defendant, Chris Smith, and the juvenile then immediately ran to a blue Ford Escape parked in the parking deck and drove away.
Shortly thereafter, Officer Michael Tinsley arrived at Target in response to Urig–Smith's 911 calls. Tinsley took the Target employees' statements and obtained a list of the stolen merchandise, which included ten bottles of perfume and four video games. The total value of the items taken, including applicable sales tax, was $514.32.
That same day, Urig–Smith was admitted to the hospital for jaw surgery. Urig–Smith testified that after surgery her jaw was wired shut for eight weeks, she could only drink liquids, she lost twenty pounds, and she was unable to take pain medication. This resulted in a difficult and painful recovery. Urig–Smith also testified the attack caused her to have reoccurring panic attacks and led her to leave the assets protection department and move to the guest services department.
The State, over defendant's objection, also offered evidence tending to show that a week earlier, on 1 March 2009, defendant was involved in the theft of “cologne” and “body lotion” from a Macy's department store. On this occasion, mall security officer John Donaldson confronted defendant after receiving a call that defendant was suspected of shoplifting. In an attempt to avoid Donaldson, defendant struck Donaldson in the face. The reporting officer for this incident, Officer Tim Wilson, testified that when he arrived at the store defendant's pants “appeared to be stuffed with items.” Upon searching defendant's pants, Wilson discovered “several bottles of cologne and body lotion ... that belonged to Macy's.” Officer Wilson also found a key in defendant's possession that unlocked a blue Ford Escape. Wilson testified defendant made several unsolicited statements such as: “if he had a weapon, things would have turned out differently,” “he would not assault a police officer, but he had no problem assaulting a mall security officer,” and “that he was a criminal ... [stealing] is how he puts food on the table.”
Defendant presented no evidence. The jury found defendant guilty of common law robbery, assault inflicting serious injury, and being a habitual felon. The trial court entered judgment and imposed a sentence of two consecutive terms of 133 to 169 months imprisonment.
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Defendant first asserts the trial court erred by overruling defendant's objections and admitting evidence that defendant committed prior robbery and assault crimes. Defendant contends that although “the prior crimes and current charges were close in time,' the prior crimes were not sufficiently similar to the [currently] charged offenses” to be admissible under N.C.G.S. § 8C–1, Rule 404(b). We disagree.
“We review de novo the legal conclusion that the evidence is, or is not, within the coverage of Rule 404(b).” State v. Beckelheimer, 366 N.C. 127, ––––, 726 S.E.2d 156, 159,subsequent civil proceeding on different grounds,––– N.C.App. ––––, 729 S.E.2d 730 (2012). Rule 404(b) provides: “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” N.C. Gen.Stat. § 8C–1, Rule 404(b) (2001). Yet, evidence may “be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” Id. The enumerated list of permissible purposes is not exclusive and “evidence of other offenses is admissible so long as it is relevant to any fact or issue other than the character of the accused.” State v. Bagley, 321 N.C. 201, 206, 362 S.E.2d 244, 247 (1987) (citing State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d 791, 793 (1986)), cert. denied,485 U.S. 1036, 99 L.Ed.2d 912 (1988). For the evidence to be deemed relevant, it must have the “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C. Gen.Stat. § 8C–1, Rule 401 (2011).
However, Rule 404(b) is still “constrained by the requirements of similarity and temporal proximity.” State v. Al–Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002), appeal after new trial, 359 N.C. 741, 616 S.E.2d 500 (2005). “It is not necessary that the similarities between the two situations rise to the level of the unique and bizarre.” State v. Aldridge, 139 N.C.App. 706, 714, 534 S.E.2d 629, 635,disc. review denied and appeal dismissed,353 N.C. 269, 546 S.E.2d 214 (2000). “Rather, the similarities simply must tend to support a reasonable inference that the same person committed both the earlier and later acts.” Id.
In this case, the trial court found, “we have two similar incidents close in time, relating to similar retail stores, same types of items being taken by the same individuals that can be identified in the films.” The trial court then concluded the 404(b) evidence was “admissible based on motive, opportunity, intent, preparation, and plan.” “When the trial court has made findings of fact and conclusions of law to support its 404(b) ruling ... we look to whether the evidence supports the findings and whether the findings support the conclusions.” Beckelheimer, 366 N.C. at ––––, 726 S.E.2d at 159.
Here, the alleged incident occurred on 8 March 2009, and the prior incident occurred 1 March 2009, a time difference of only one week. The alleged incident took place at a Target store, a large general retailer, and the prior incident took place at a Macy's department store, also a large general retailer. Defendant was seen taking “fragrances” in the alleged Target incident, and defendant was taking “colognes” and “body lotions” in the prior incident. Defendant was identified in court by both the responding security officer from the alleged Target incident, and by the responding security officer from the prior incident. Finally, the incidents occurred in a similar manner: in the alleged Target incident, defendant is observed “concealing merchandise in his pants”; in the prior incident, defendant also “concealed merchandise in his pants.” In the alleged Target incident, a responding security officer was assaulted by being “hit in the face,” and in the prior incident a responding security officer was also assaulted by being “hit in the face.” Thus, the trial court's findings that the incidents were close in time, were similar in nature, and were committed by the same person are supported by the evidence. Such findings are sufficient to support the trial court's conclusion that the evidence was admissible under Rule 404(b) to prove motive, opportunity, intent, preparation, and plan. Additionally, the similarities of the events are sufficient to support “a reasonable inference that the same person committed both the earlier and later acts.” See Aldridge, 139 N.C.App. at 714, 534 S.E.2d at 635. Therefore, we hold the 404(b) evidence was properly admitted.
Defendant next contends the 404(b) evidence should have been excluded because it was unfairly prejudicial under N.C.G.S. § 8C–1, Rule 403. We do not agree.
“We ... review the trial court's Rule 403 determination for abuse of discretion.” Beckelheimer, 366 N.C. at ––––, 726 S.E.2d at 159.Rule 403 states: “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” N.C. Gen.Stat. § 8C–1, Rule 403 (2011). “The decision whether to exclude evidence under Rule 403 ... is within the discretion of the trial court and will not be overturned absent an abuse of discretion .” State v. Campbell, 359 N.C. 644, 673, 617 S.E.2d 1, 19 (2005) (citing State v. Williams, 334 N.C. 440, 460, 434 S.E.2d 588, 600 (1993), judgment vacated on other grounds sub nom. North Carolina v. Bryant, 511 U.S. 1001, 128 L.Ed.2d 42 (1994)), cert. denied,547 U.S. 1073, 164 L.Ed.2d 523 (2006). “A trial court may be reversed for an abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision.” State v. Wilson, 313 N.C. 516, 538, 330 S.E.2d 450, 465 (1985) (citing White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)). “Whether to exclude relevant but prejudicial evidence under Rule 403 is a matter left to the sound discretion of the trial court.' “ State v. Elliot, 344 N.C. 242, 272, 475 S.E.2d 202, 215 (1996) (quoting State v. Handy, 331 N.C 515, 532, 419 S.E.2d 545, 554 (1992)), cert. denied,520 U.S. 1106, 137 L.Ed.2d 312 (1997).
Relying on State v. Cashwell, 322 N.C. 574, 369 S.E.2d 566 (1988), defendant argues the 404(b) evidence is unfairly prejudicial because the prior crime and the charged crime were the same type of offense. However, in Cashwell, our Supreme Court held the challenged testimony to be prejudicial only after concluding it was irrelevant under 404(b). See Cashwell, 322 N.C. at 577–78, 369 S.E.2d at 568. That is not the case here. Here, the 404(b) evidence was relevant to prove motive, opportunity, intent, preparation and plan of the alleged incident. Specifically, the similar method of the theft, the fact that the events occurred only a week apart, and defendant's statements during the prior incident are probative of defendant's plan, intent, and motive in the charged offenses. Any prejudicial effect due to the similar nature of the crimes does not substantially outweigh the probative value of the evidence to show that defendant had a plan to commit the present offense, was willing to use force if necessary to carry out that plan, and had a motive for seeing that plan to fruition. See State v. Woodard, 210 N.C.App. 725, 728–29, 709 S.E.2d 430, 433–34 (2011) (holding evidence that the defendant broke into a pharmacy a few days earlier in order to obtain narcotics was more probative than prejudicial in demonstrating a plan to obtain narcotics through the drugstore break-in at issue), disc. review improvidently allowed per curiam,365 N.C. 464, 722 S.E.2d 508 (2012).
Additionally, any prejudicial effect of the evidence was ameliorated by the trial court's appropriate handling of the process. Before admitting the evidence, the court first heard the 404(b) testimony and counsel's arguments regarding the 404(b) evidence outside the presence of the jury. The court specifically identified testimony that could be placed before the jury and specifically disallowed testimony that was not relevant to the alleged incident. Moreover, the court gave an appropriate limiting instruction to the jury regarding the use of the 404(b) testimony, thereby limiting the potential prejudicial effect. Therefore, we hold it was not an abuse of discretion for the trial court to determine the probative value of the evidence was not “substantially outweighed by the danger of unfair prejudice.” SeeN.C. Gen.Stat. § 8C–1, Rule 403.
Defendant next argues the trial court committed plain error when it did not intervene ex mero motu to exclude “impact testimony” of Jennifer Urig–Smith regarding her health and employment status after the alleged assault.
“For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial.” State v.. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citing State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)). A fundamental error is one where “after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty.” Id. (internal quotation marks omitted). “[B]ecause plain error is to be applied cautiously and only in the exceptional case,' the error will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' “ Id. (citations omitted) (quoting Odom, 307 N.C. at 660, 300 S.E.2d at 378).
Victim impact evidence, including physical, psychological, emotional, or economic effects of a crime on a particular victim “is usually irrelevant during the guilt-innocence phase of a trial and must be excluded.” State v. Graham, 186 N.C.App. 182, 190, 650 S.E.2d 639, 645 (2007) (citing State v. Maske, 358 N.C. 40, 50, 591 S.E.2d 521, 527–28 (2004)), disc. review denied and appeal dismissed,362 N.C. 477, 666 S.E.2d 765 (2008); see alsoN.C. Gen.Stat. § 15A–833 (2011). “However, victim impact evidence which tends to show the context or circumstances of the crime itself ... is relevant and therefore admissible.” Graham, 186 N.C.App. at 191, 650 S.E.2d at 646 (citing State v. Barden, 356 N.C. 316, 349–50, 572 S.E.2d 108, 130–31 (2002)), cert. denied, 538 U.S. 1046, 155 L.Ed.2d 1974 (2003). “A jury may consider such pertinent factors as hospitalization, pain, loss of blood, and time lost at work in determining whether an injury is serious.” State v. Williams, 150 N.C.App. 497, 502, 563 S.E.2d 616, 619 (2002) (citing State v. Hedgepeth, 330 N.C. 38, 55, 409 S.E.2d 309, 318 (1991), appeal after new sentencing hearing,350 N.C. 776, 517 S .E.2d 605 (1999)).
After examining the record we conclude that elements of Urig–Smith's “impact testimony” were relevant to proving defendant's guilt of assault inflicting serious bodily injury. See id. at 503, 563 S.E.2d at 620 (holding evidence that victim had his jaw wired shut, lost significant weight, and continued to experience pain and other effects months after the alleged assault were admissible to prove a serious bodily injury).
Even assuming arguendo that parts of Urig–Smith's “impact testimony” should have been excluded, because defendant failed to object to the evidence during the trial, defendant must show their admission into evidence was plain error. See Lawrence, 365 N.C. at 518, 723 S.E.2d at 334. “To establish plain error, defendant must show that the [error] was a fundamental error—that the error had a probable impact on the jury verdict.” Id.
Here, the State provided sufficient evidence to prove defendant's guilt of the alleged crimes. Evidence that (1) defendant was the person on camera who entered the store with Chris Smith and the unidentified juvenile; (2) defendant was identified on camera assisting in the common plan to “conceal merchandise in their pants” and then exit the store; and (3) defendant was in the process of executing this plan when his companion, Chris Smith, struck Urig–Smith, is sufficient to support the jury's convictions of common law robbery and assault inflicting serious bodily injury. Defendant cannot show that, absent the challenged portions of Urig–Smith's testimony, the jury probably would have returned a different verdict. Additionally, “the error in no way seriously affects the fairness, integrity, or public reputation of judicial proceedings.” See id. at 519, 723 S.E.2d at 335.
We hold the trial court did not commit plain error by failing to intervene ex mero motu to exclude parts of UrigSmith's “impact testimony.”
No Error. Judges HUNTER and STEPHENS concur.
Report per Rule 30(e).