Opinion
No. COA10-1156
Filed 19 July 2011 This case not for publication
Appeal by Defendant from judgment entered 27 January 2010 by Judge R. Allen Baddour, Jr., in Mecklenburg County Superior Court. Heard in the Court of Appeals 24 February 2010.
Roy Cooper, Attorney General, by E. Burke Haywood, Special Deputy Attorney General, for the State. M. Alexander Charns for Defendant.
Mecklenburg County Nos. 06 CRS 228742, 06 CRS 228743.
The fingerprints of Jerel Davis ("Defendant") were discovered on a vehicle in the parking lot of a pawn shop shortly after the robbery of the pawn shop. At trial, Defendant requested a jury instruction on fingerprint evidence. A Ten Most Wanted List, containing information on the last known whereabouts of Defendant and a photograph of Defendant, was admitted at trial without objection. On appeal, we must determine whether the trial court erred by failing, upon written request by Defendant, to instruct the jury on the probative value of fingerprint evidence, and whether the trial court committed plain error by allowing the admission of the Ten Most Wanted List. We conclude the trial court did not err.
The evidence of record tends to show that on 27 May 2006, at approximately 6:45 p.m., Daniel Lattimore ("Lattimore"), the assistant manager of Cash America Pawn located on Wilkinson Boulevard in Charlotte, North Carolina, stepped outside the store to smoke a cigarette. Two men walked toward Lattimore and told him to go back into the store. One man's face was covered with a ski mask, and the other, with a red shirt. The man wearing the ski mask carried a gun in the waistband of his pants, and he pointed the gun at Lattimore. At the behest of the men, Lattimore unlocked the front door of the store, and the men entered, forcing Lattimore to the front counter, directing him to lie down on the floor, and taking his cell phone, car keys, and shirt. The men then directed Lattimore to the processing room of the pawn shop, where the jewelry was stacked and prepared to go into the vault. The men took the jewelry and dumped it into a duffle bag. The man wearing the red shirt also took the money from the drawer of the front counter and put it in his pocket. The men then went into the manager's office to take money from the manager's desk. Lastly, the men took a laptop from the vault.
After the men had gathered the jewelry, money and laptop, they directed Lattimore to lie down on the floor a second time, while the men exited the store. Lattimore believed they were unloading the stolen goods into his car. The men then came back into the store and said, "the money was acting funny." After their confusion regarding the money, the man wearing the ski mask stood over Lattimore with a gun, while the second man exited and entered the store a number of times.
Both men then left the store, and Lattimore turned on a secondary surveillance monitor, hit the panic button, and dialed 911. Lattimore also reported to the police that his car had been stolen because he thought the men had taken his car.
Officer Brett Michael Riggs arrived at Cash America Pawn after Lattimore's call. Officer Riggs noticed there was one vehicle in the parking lot — a burgundy Oldsmobile Bravada. Officer Riggs did not see anyone in the parking lot or around the building. When questioned by Officer Riggs, Lattimore described the perpetrators of the offense: One man was "approximately 6, 2, slim in build[,] black male[,] . . . wearing dark-colored pants, red shirt, and had a second red shirt covering his face[;]" the other man was "[approximately 6, 6, slim in build as well[,] [w]earing dark pants[,] black hooded sweatshirt with a ski mask on and armed with a black pistol."
Later in the investigation, Lattimore was unable to identify the perpetrators of the offense in a photo lineup. Lattimore "never got a good look at the subjects[,]" and his "[o]nly look [was] when the guy was about 50 feet away[.]" However, surveillance monitors captured images of Defendant in the vault and in the manager's office.
Lattimore told Officer Riggs he thought the men had stolen his car because they took his car keys; however, Officer Riggs explained there was a burgundy Bravada in the parking lot. Lattimore walked outside with Officer Riggs to confirm that the vehicle in the parking lot was his vehicle, and Officer Riggs noticed that "the interior was filled with [pink] . . . smoke" and that the vehicle was running. Officer Riggs also noticed "some currency . . . stained with a pink color" in the back seat of the vehicle. Lattimore told Officer Riggs that the suspect had taken a dye pack from the business. A photograph from the surveillance monitor shows one man "reaching into the till and pulling out the dye pack" during the course of the robbery, and this photograph was admitted as evidence at trial.
On 27 May 2006, the same day as the robbery, Crime Scene Search Technician Angela Flanders ("Officer Flanders") took latent fingerprints from the exterior left front door and the exterior left front window of Lattimore's vehicle. Flanders testified that the prints belonged to Defendant.
Jawquetta Nasandra Walker, an employee of Pawn Mart, contacted the police in May 2006 regarding the following "suspicious activity" at the pawn shop: After the store had closed, which on that day was a little earlier than 6:00 p.m., Walker saw "[Defendant] pulling on the door [of Pawn Mart] with . . . [t]wo black bags in his hand." Walker "knew [and recognized Defendant] from the neighborhood." Several days after Walker reported the incident at Pawn Mart to the police, a detective contacted Walker and asked her to identify a suspect in several photographs. Walker identified the person in the photographs as Defendant. At trial, Walker again identified Defendant in several photographs taken from the surveillance video at Cash America Pawn during the perpetration of the robbery on 27 May 2006.
Pawn Mart and Cash America Pawn are different businesses, and Pawn Mart was located on North Tryon, while Cash America Pawn was located on Wilkinson Boulevard.
Walker testified that the person depicted in State's Exhibit Numbers 2, 3, 4, and 5, was Defendant.
Detective Kenneth Ball also testified at trial, stating that Walker told him "she had recognized some subjects in a white Lincoln Town Car that seemed to be casing the Pawn Mart on North Tryon Street where she worked and that she knew both of the subjects." One of the men, Walker said, was Defendant. According to Detective Ball, Walker further stated that "[t]hey came up to the store twice on different days pulling on the door after hours[,] [and] [o]ne time they actually displayed firearms." Detective Ball showed Walker "copies of the surveillance footage" from the robbery at Cash America Pawn, and "she immediately recognized the person in the photos as [Defendant]."
After Detective Ball obtained a warrant for Defendant's arrest, but before Defendant's actual arrest, Detective Ball "submitted [Defendant] to Charlotte's Ten Most Wanted List" and "to the North Carolina's Most Wanted List." The "Ten Most Wanted List submission that [Detective Ball] filled out on [Defendant]" was admitted, without objection, as evidence at trial and was published to the jury.
Defendant did not testify, nor did he put on any evidence in this case. On 27 January 2010, the trial court entered judgment convicting Defendant of robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon, and sentencing Defendant as a prior record level III offender to a minimum term of 103 months to a maximum term of 133 months incarceration. From this judgment, Defendant appeals.
I: Jury Instruction
On appeal, Defendant contends the trial court erred by failing to instruct the jury on fingerprint evidence, specifically that fingerprints corresponding to those of the accused are without probative force unless the circumstances showed that they could have only been impressed at the time the crime was committed. We disagree.
The standard of review for appeals regarding jury instructions to which Defendant has properly lodged an objection at trial is the following:
This Court reviews jury instructions . . . contextually and in its entirety. The charge will be held to be sufficient if it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed[.] . . . Under such a standard of review, it is not enough for the appealing party to show that error occurred in the jury instructions; rather, it must be demonstrated that such error was likely, in light of the entire charge, to mislead the jury.
State v. Glynn, 178 N.C. App. 689, 693, 632 S.E.2d 551, 554, appeal dismissed, disc. review denied, 360 N.C. 651, 637 S.E.2d 180 (2006) (quotation omitted). This Court has also held that "[w]hen a requested instruction, however, is correct in law and supported by the evidence, the Court must give the instruction in substance." State v. Bradley, 65 N.C. App. 359, 363, 309 S.E.2d 510, 513 (1983) (citing State v. Monk, 291 N.C. 37, 229 S.E.2d 163 (1976)).
In the present case, fingerprint evidence taken from the exterior left front door and the exterior left front window of Lattimore's vehicle tended to show that Defendant was the perpetrator of the robbery of Cash America Pawn on 27 May 2006. Walker also testified that the person depicted in State's Exhibit Numbers 2, 3, 4, and 5 — photographs from the surveillance video recorded during the perpetration of the robbery — was Defendant. The testimony of the first officer to the scene, Officer Riggs, revealed that the vehicle from which Defendant's fingerprints had been extracted was in the parking lot of Cash America Pawn when Officer Riggs arrived. Minutes later, Officer Riggs "noticed that the interior was filled with" pink smoke, and the vehicle "was running." Officer Riggs saw "what appeared to be some currency" in the back seat "that was stained with a pink color." Lattimore told Officer Riggs that Defendant had taken a "dye pack" from Cash America Pawn. Lattimore also testified that when the police arrived "the police told me the car was still sitting outside[;] the car was running[;]" and, "[i]t was full of a red fog." This, Lattimore said, was not how he had left his vehicle. Lattimore further stated that he did not know Defendant, had never given Defendant a ride in his vehicle, and had never given Defendant authorization to "touch" his vehicle. Officer Flanders, who extracted the fingerprints from the vehicle, testified that the time on the complaint number was 7:02 p.m., which represented "the time the call came in[.]" The robbery had begun at approximately 6:45 p.m. The transcript does not indicate the exact interval of time between Lattimore's call to the police and the arrival of Officer Riggs to the scene. However, no evidence was admitted at trial by Defendant or the State tending to show that Defendant could have placed his fingerprints on Lattimore's vehicle at any other time than during the perpetration of the robbery.
Defendant submitted a request in writing asking that the court instruct the jury that "[f]ingerprints corresponding to those of the defendant are without probative force, unless the circumstances show that they could only have been impressed at the time the crime was committed." The trial court did not give the requested fingerprint instruction in its charge to the jury.
In ascertaining whether the requested jury instruction, that fingerprints corresponding to those of the accused are without probative force unless the circumstances showed that they could have only been impressed at the time the crime was committed, was "supported by the evidence[,]" Bradley, 65 N.C. App. at 363, 309 S.E.2d at 513, we have thoroughly examined the facts of this case and the application of the law to similar facts in previous decisions. We believe the facts of this case are most closely analogous to State v. Miller, 69 N.C. App. 392, 317 S.E.2d 84 (1984). In Miller, the Court stated, "[i]n the case before us . . . the record is devoid of evidence from which the jury could even infer that the prints were left by the defendants at a time or under circumstances not directly related to the crimes charged." Id., 69 N.C. App. at 402, 317 S.E.2d at 91. There was "no evidence from which the jury could have concluded the fingerprints were placed under circumstances unrelated to the crimes[.]" Id. The Court in Miller found no error in the trial court's failure to give the requested fingerprint instruction. Likewise, here, neither Defendant nor the State presented any evidence whatsoever from which the jury could infer that the prints were left by Defendant at a time or under circumstances not directly related to the crimes charged. In fact, all of the evidence was to the contrary. Walker positively identified Defendant in photographs from the surveillance video recorded during the perpetration of the robbery; Lattimore stated that the perpetrators stole his car keys and that he believed they were unloading the stolen goods into his car; when Officer Riggs arrived at the scene, the car was still running and filled with pink smoke from an exploded dye pack; Officer Flanders extracted Defendant's fingerprints from the vehicle; Lattimore stated that he did not know Defendant, had never given Defendant a ride in his vehicle, and had never given Defendant authorization to "touch" his vehicle; and Defendant gave no testimony tending to show the possibility that he had left his prints on the vehicle at some other time and not in the perpetration of the robbery.
For the foregoing reasons, we conclude the trial court did not err by failing to give the requested jury instruction, that fingerprints corresponding to those of the accused are without probative force unless the circumstances showed that they could have only been impressed at the time the crime was committed, as this jury instruction was not supported by the evidence of this case. See Miller, 69 N.C. App. 392, 317 S.E.2d 84. In this particular case, there was no evidence to show that the fingerprints could have been impressed at any time other than when the crime was committed.
II: Ten Most Wanted List
In Defendant's next argument on appeal, he contends that the trial court committed plain error by admitting a "Ten Most Wanted List" poster into evidence. We disagree.
Defendant did not object to the admission of the Ten Most Wanted List at trial; therefore, our review is for plain error. "Plain error analysis applies to evidentiary matters and jury instructions." State v. Garcell, 363 N.C. 10, 35, 678 S.E.2d 618, 634 (2009). "A prerequisite to our engaging in a `plain error' analysis is the determination that the instruction complained of constitutes `error' at all[;] [t]hen, `[b]efore deciding that an error by the trial court amounts to plain error, the appellate court must be convinced that absent the error the jury probably would have reached a different verdict.'" State v. Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468, cert denied, 479 U.S. 836, 107 S. Ct. 133, 93 L. Ed. 2d 77 (1986) (quoting State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986) (internal quotation omitted)). Our Courts have further stated, with regard to plain error review, the following:
[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quotations omitted) (Emphasis in original). Defendant bears the burden of showing that an error arose to the level of plain error. State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997).
In the present case, a warrant for Defendant's arrest was obtained on 17 June 2006, but Defendant was not "arrested right away[.]" Rather, Detective Kenneth Ball gave the following testimony regarding the Most Wanted List:
Q. What did you do in the meantime while you were waiting for him to be arrested?
A. I did two things. Once he was not arrested right away I submitted him to Charlotte's Ten Most Wanted List where he was posted and he [was] also submitted to the North Carolina's Most Wanted List.
Q. Detective, I'm going to show you what I've marked as State's Exhibit Number 26. Do you recognize this document?
A. Yes, sir, I do.
Q. What do you recognize it to be?
A. This is the Ten Most Wanted List submission that I filled out on Jerel Lamar Davis and submitted it to the committee.
Q. Is it in the same or substantially similar condition as it was the day you submitted it?
A. Yes, sir.
MR. BUNTING: Your Honor, at this time I'd offer State's Exhibit Number 26 into evidence.
MS. SURLES: I don't have any objection.
THE COURT: Without objection State's 26 is admitted.
Defendant was ultimately arrested two years later, in September 2008. The evidence presented was likely more than necessary to show defendant avoided prosecution; however, we do not believe there was prejudicial error in the admission of the "Ten Most Wanted List submission[.]" See State v. Bright, 131 N.C. App. 57, 59, 505 S.E.2d 317, 319 (1998), disc. review improvidently allowed, 350 N.C. 82, 511 S.E.2d 639-40 (1999) ("As part of the effort to secure his arrest, defendant was featured on America's Most Wanted and Unsolved Mysteries[;] [f]rom tips received in response to these programs, defendant was ultimately captured") (quotations omitted). The evidence here was simply a submission to a committee, which contained information on the last known whereabouts of Defendant and a photograph of Defendant. We conclude Defendant has failed to carry his burden of proof to show plain error, and we do not believe that absent the admission of the Ten Most Wanted List, the jury would probably have reached a different verdict. The claimed error did not rise to the level of "a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done." Odom, 307 N.C. at 660, 300 S.E.2d at 378 (quotation omitted) (Emphasis in original). Therefore, the trial court did not commit plain error by allowing the introduction of the Ten Most Wanted List as evidence.
III: Motion to Dismiss
In Defendant's third argument on appeal, he contends the trial court erred by failing to grant Defendant's motion to dismiss the charges of robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon based on insufficiency of the evidence. We disagree.
"When reviewing a defendant's motion to dismiss a charge on the basis of insufficiency of the evidence, this Court determines whether the State presented substantial evidence in support of each element of the charged offense." State v. Abshire, 363 N.C. 322, 327-28, 677 S.E.2d 444, 449 (2009) (quotation omitted). "Substantial evidence is relevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion." Id., 363 N.C. at 328, 677 S.E.2d at 449 (quotation omitted). "In this determination, all evidence is considered in the light most favorable to the State, and the State receives the benefit of every reasonable inference supported by that evidence." Id. (quotation omitted). "Additionally, a substantial evidence inquiry examines the sufficiency of the evidence presented but not its weight, which is a matter for the jury." Id. (quotation omitted) (Emphasis in original). "Thus, if there is substantial evidence — whether direct, circumstantial, or both — to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied." Id. (quotation omitted).
The elements of robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon are the following: "(1) an unlawful taking or an attempt to take personal property from the person or in the presence of another; (2) by use or threatened use of a firearm or other dangerous weapon; (3) whereby the life of a person is endangered or threatened." State v. Gwynn, 362 N.C. 334, 337, 661 S.E.2d 706, 707-08 (2008). "A criminal conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means." State v. Tabron, 147 N.C. App. 303, 306, 556 S.E.2d 584, 586 (2001) (quotation omitted), disc. review improvidently allowed, 356 N.C. 122, 564 S.E.2d 881 (2002).
In Defendant's brief, Defendant challenges only the identity of Defendant as the perpetrator of the offenses, stating that there is insufficient "evidence to show that the fingerprints that are on the vehicle could have only been made at the time in which the offense occurred." We disagree. We reiterate that Walker positively identified Defendant in photographs from the surveillance video recorded during the perpetration of the robbery; Lattimore stated that the perpetrators stole his car keys and that he believed they were unloading the stolen goods into his car; when Officer Riggs arrived at the scene, the car was still running and filled with pink smoke from an exploded dye pack; Officer Flanders extracted Defendant's fingerprints from the vehicle; Lattimore stated that he did not know Defendant, had never given Defendant a ride in his vehicle, and had never given Defendant authorization to "touch" his vehicle; and Defendant presented no evidence tending to show the possibility that he had left his prints on the vehicle at some other time and not in the perpetration of the robbery. Based on the foregoing, we conclude there is substantial evidence to support a finding that the offense charged was committed and that the defendant committed it. Therefore, we conclude the trial court did not err by denying Defendant's motion to dismiss.
NO ERROR.
Judges STROUD and HUNTER, JR., concur.
Report per Rule 30(e).