Opinion
No. COA11–1439.
2012-05-1
STATE of North Carolina v. Quinn Tyler GLEASON.
Attorney General Roy Cooper, by Special Deputy Attorney General Victoria L. Voight, for the State. Paul F. Herzog, for Defendant.
Appeal by Defendant from judgments entered 26 May 2011 by Judge Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals 7 March 2012. Attorney General Roy Cooper, by Special Deputy Attorney General Victoria L. Voight, for the State. Paul F. Herzog, for Defendant.
BEASLEY, Judge.
Quinn Tyler Gleason (Defendant) appeals his convictions of two counts of robbery with a dangerous weapon and one count of first degree burglary. For the following reasons, we find no prejudicial error.
Andrew Gore (Gore), Derek Cleary (Cleary), Martin Cagle (Cagle), and Kyle Butcher (Butcher) resided at 318 South Tate Street (the residence). On the evening of 22 October 2010, the young men gave a party at the residence. Defendant attended the party with three of his friends, Jason Scales (Scales), Alex Rose (Rose), and Brandon Vellines (Vellines).
Between 12:30 and 1:00 a.m., Cagle went upstairs to his bedroom and noticed that his drawers had been opened and his belongings were out of place. Cagle was informed that Scales and Rose had been in his room. Cagle confronted the two and a physical altercation ensued. Defendant and Vellines came to the aid of Rose and Scales, and all four men fled the residence. Upon leaving the residence, the four men went to Blake Geddes' house where they continued to consume alcohol, took Klonopin, and talked about getting revenge for the way they had been treated at the party.
In the early morning hours of 23 October 2010, Defendant, Rose, Vellines, and Geddes went to Cagle's residence wearing masks, and armed with a shotgun and a hammer. The men kicked open the front door, entered Gore's room where he was sleeping with his girlfriend, and beat Gore with the shotgun and the hammer. Gore's girlfriend tried to flee, but one of the masked men grabbed her and took money from her purse. Cagle came downstairs after hearing the disturbance and he was also attacked and beaten with the shotgun and the hammer. Cagle fought back and was able to escape. By this time, Gore had already fled the residence and flagged down officers. The men were apprehended while fleeing the scene. After returning to the residence, Cagle discovered that several items were missing including a 42 inch plasma television, a play station, and several guitars.
Defendant was indicted on three counts of robbery with a dangerous weapon, and one count of first degree burglary. After a jury trial, Defendant was found guilty of two counts of robbery with a dangerous weapon and one count of first degree burglary. Defendant gave notice of appeal in open court on 26 May 2011.
Defendant argues that the trial court committed prejudicial error by failing to dismiss the charge of first degree burglary where the State did not offer substantial evidence of Defendant's intent to commit felonious assault with a deadly weapon. We disagree.
“Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense.” State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992) (citation omitted). “In ruling on a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State and the State is entitled to every reasonable inference to be drawn from that evidence.” State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 926 (1996) (internal quotation marks and citation omitted). Moreover, “contradictions and discrepancies are for the jury to resolve and do not warrant dismissal; and all of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is to be considered by the court in ruling on the motion.” State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980) (citation omitted).
The elements of first degree burglary are: “(1) the breaking (2) and entering (3) in the nighttime (4) into a dwelling house or a room used as a sleeping apartment (5) of another (6) which is actually occupied at the time of the offense (7) with the intent to commit a felony therein.” State v. Blyther, 138 N.C.App. 443, 447, 531 S.E.2d 855, 858 (2000) (citation omitted). Intent to commit a felony therein “may be inferred from the circumstances surrounding the occurrence.” State v. Myrick, 306 N.C. 110, 115, 291 S.E.2d 577, 580 (1982) (citation omitted). “[E]vidence of what a defendant does after he breaks and enters a house is evidence of his intent at the time of the breaking and entering.” State v.. Gray, 322 N.C. 457, 461, 368 S.E.2d 627, 629 (1988).
Defendant argues that the State failed to establish Defendant's intent to commit assault with a deadly weapon where there was no direct evidence of Defendant physically attacking the residents. Defendant asserts that his acts after entering the residence do not support a finding that he had the intent to commit assault with a deadly weapon. Although Defendant admits that there was evidence that shows that Defendant and accomplices returned to the residence to seek revenge, he asserts that a general plan to get revenge cannot be converted into intent to commit assault with a deadly weapon.
Defendant acknowledges that the Court is “concerned only with the sufficiency of the evidence to carry the case to the jury and not with its weight”, but still asks us to re-weigh the evidence to find that Defendant's actions support only a plan for revenge and not assault with a deadly weapon. Powell, 299 N.C. at 99, 261 S.E.2d at 117. Viewing the evidence in the light most favorable to the State, the State presented evidence that Defendant and accomplices returned to the residence after an altercation earlier that night; Defendant and accomplices returned to the residence to fight; Defendant and accomplices were masked when they returned to the residence; Defendant was armed with a shotgun and kicked open the door to the residence; and Gore and Cagle were beaten with a hammer and a shotgun. Based on the aforementioned, the trial court properly denied Defendant's motion to dismiss.
Next, Defendant contends that the trial court committed plain error by instructing the jury that the broken shotgun used during the robbery was a deadly weapon per se. We disagree.
“The plain error rule allows review of fundamental errors or defects in jury instructions affecting substantial rights, which were not brought to the attention of the trial court.” State v. Bell, 87 N.C.App. 626, 634, 362 S.E.2d 288, 293 (1987) (quotation marks and citation omitted). “[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[.]” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (internal quotation marks omitted). “It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” State v. Melvin, 364 N.C. 589, 594, 707 S.E.2d 629, 633 (2010) (citation omitted).
Our Supreme Court has stated,
[w]hen a person commits a robbery by the use or threatened use of an implement which appears to be a firearm or other dangerous weapon, the law presumes, in the absence of any evidence to the contrary, that the instrument is what his conduct represents it to be-an implement endangering or threatening the life of the person being robbed.... Thus, where there is evidence that a defendant has committed a robbery with what appears to the victim to be a firearm or other dangerous weapon and nothing to the contrary appears in evidence, the presumption that the victim's life was endangered or threatened is mandatory.
State v. Joyner, 312 N.C. 779, 782, 324 S.E.2d 841, 844 (1985) (citations and emphasis omitted). “[W]hen any evidence is introduced tending to show that the life of the victim was not endangered or threatened, the mandatory presumption disappears, leaving only a mere permissive inference....” Id. at 783, S.E.2d at 844. (internal quotation marks and citation omitted).
In the case sub judice, Defendant contends that the trial court gave an improper jury instruction where Defendant introduced evidence that the shotgun was defective. Defendant argues that “there was a plethora of evidence that the Mossberg shotgun used during the [robbery] was inoperable.”
A review of the record shows that there was substantial evidence that the weapon was defective, but not inoperable. Although the shotgun was recovered in two separate pieces, Carlton Phoenix, a forensic specialist with the Greensboro Police Department, testified that shot gun was functional.
Q. Okay. And what were you asked to do with that particular weapon?
A. You specifically asked me to look at it to see if it looked like it was enough—if the firearm would function; it was in two different pieces. So I took a look at the two pieces of evidence and actually reassembled it and test fired it, and it did function.
....
Q. And when you fired that gun or to, did you put a live round in it?
A. I put a live round in it, but I removed all of the explosive components and just left an empty shot shell with a light primer.
Q. How did you go about assembling the barrel back onto the gun?
A. It just slid in place. There was—everything was in place, with the exception of the retention nut that holds the barrel to the frame. But once it's slid into place, it was one nut away from being a totally functionable shotgun.
Q. And you—did you actually put the nut in, or did you just leave it out when you test fired it?
A. There was no nut. The threaded end of—the retention threaded tube for the magazine tube actually had been crimped. It had been—hit something harder than it and it damaged the thread. So even if I had a retention nut, there would be no way of putting it back on without re-machining the threads.
Q. You just basically put the barrel on the end of it?
A. That's correct.
Q. And this explosive shell that you loaded in there, how did you load it into the gun?
A. Actually loaded it right into the side of the chamber and ratcheted the forearm forward, and that chambers the round.... If the firearm is functional, once the trigger's pulled, the firing pin extends and hits the primer, then the primer explodes. It would be the same thing as shooting a live round.
Q. And once you chambered the round without the shot in it that you put into the gun, did you, in fact, pull the trigger?
A. Yes, I did.
Q. And what happened?
A. It went “bang.”
Although the shotgun was damaged, the shotgun was still functional when the barrel was re-attached to the body of the gun. Defendant also argues that Mr. Phoenix testified that the gun was “damaged to the point that it was unsafe to fire with a fully loaded shotgun shell.” This is a misstatement of the evidence. Mr. Phoenix testified that he would not have fired a live round because in cases of “missing, broke, or misaligned parts, ... the firearm [is] not safe enough for me to hold it in my hands and shoot it.” Here, Mr. Phoenix explained his general practice, and was not stating that the shotgun was inoperable as Defendant suggests. We reject Defendant's assertion that the shotgun was inoperable.
Defendant also relies on statements made by accomplice, Brandon Vellines, to support his contention that the shotgun was inoperable.
Vellines had stated that the shotgun was to kind of scare people. It didn't even work, apparently. Apparently there was a nut missing off the shotgun, so when you cocked the shotgun, the whole thing fell apart, like, the barrel bounced out. So it couldn't be used. But they wanted to—they tied some string around it to hold it together so that they could walk around cocking it to scare people.
In State v. Williams, 335 N.C. 518, 438 S.E.2d 727 (1994), our Supreme Court held that the trial court did not err by instructing the jury on the mandatory presumption that the object Defendant wielded during the robbery was a deadly weapon even where the defendant's alibi testified that the defendant did not “mess with guns” and the defendant did not own a gun. The Williams court held the evidence
simply did not amount to substantial evidence to the contrary tending to show that he did not employ a firearm.... Therefore, the trial court did not err by instructing only with regard to the mandatory presumption that the victims' lives were endangered or threatened and declining to instruct, instead, on a mere permissive inference.
Id. at 523, 438 S.E.2d at 730. (citations omitted).
In this case, Defendant relies solely on an accomplice's statement that the shotgun was inoperable to support his contention. Moreover, the State's evidence showed that officers retrieved a shot gun shell from the residence; officers found the loaded shot gun outside of the residence; and the forensic specialist testified that the gun was operable. Based on Williams, Defendant did not present substantial evidence that was contrary to the State's evidence. Additionally, the State's evidence presented overwhelming evidence that the shotgun was used as a deadly weapon. Accordingly, we find no prejudicial error.
Finally, Defendant argues that the trial court committed prejudicial error by failing to instruct the jury on the defense of automatism. We disagree.
“When a defendant requests an instruction for voluntary intoxication, he essentially concedes that he was in control of his physical actions but submits that his reason was so overthrown as to render him utterly incapable of forming [specific intent].” State v. Morganherring, 350 N.C. 701, 733, 517 S.E.2d 622, 641 (1999) (internal quotation marks and citations omitted). “On the other hand, the rule for automatism is that where a person commits an act without being conscious thereof, the act is not a criminal act even though it would be a crime if it had been committed by a person who was conscious.” Id. (internal quotation marks and citations omitted). “The defenses of voluntary intoxication and automatism are unconsciousness as a result of voluntary ingestion of alcohol or drugs will not warrant the instruction [for automatism] requested here by defendant.” Id. (internal quotation marks and citations omitted). Because the trial court granted Defendant's voluntary intoxication jury charge, the trial court properly denied Defendant's request for an automatism jury instruction. Defendant's argument is without merit.
No Prejudicial Error. Judges BRYANT and HUNTER, JR. concur.
Report per Rule 30(e).