Opinion
No. COA12–817.
2013-06-18
STATE of North Carolina v. Siu NAY, Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General Joseph E. Herrin, for the State. Anne Bleyman for defendant-appellant.
Appeal by defendant from judgments entered 9 November 2011 by Judge Ronald E. Spivey in Guilford County Superior Court. Heard in the Court of Appeals 30 January 2013. Attorney General Roy Cooper, by Special Deputy Attorney General Joseph E. Herrin, for the State. Anne Bleyman for defendant-appellant.
GEER, Judge.
Defendant Siu Nay appeals from his convictions of assault with a deadly weapon with intent to kill and discharging a weapon into an occupied dwelling or moving vehicle. On appeal, defendant contends that the trial court erred in denying his motions to dismiss because the State presented insufficient evidence that defendant was the perpetrator of the charged offenses. We hold that the identification of defendant by the victim, coupled with fingerprint evidence tending to show defendant was in the car involved in the shooting, constituted substantial evidence of defendant's identity as the perpetrator of the offenses.
Facts
The State's evidence tended to show the following facts. In March 2011, Mr. Vaddana Leng and Ms. Helena Uch worked together at Beverly Nails in Greensboro, North Carolina. Ms. Uch's husband, Ly Ksor, suspected that Ms. Uch was having an affair with Mr. Leng.
On 8 March 2011, at approximately 9:30 p.m., Mr. Leng left a friend's house and started driving home. Mr. Leng realized that he was being followed by a silver BMW that he recognized as belonging to Mr. Ksor. Mr. Ksor was driving the car, and a man Mr. Leng later identified as defendant was riding in the front passenger's seat.
After Mr. Leng turned onto High Point Road in Greensboro, the BMW accelerated and began to pass Mr. Leng's car in the left lane. When the BMW was beside and “really close” to the driver's side of Mr. Leng's car, Mr. Leng saw defendant fire a gun out of the passenger's side window of the BMW into the driver's side door of Mr. Leng's car. The BMW then accelerated in front of Mr. Leng's car and maneuvered to the right side of the road so that the BMW was travelling on the right of Mr. Leng's car.
When the BMW drew even with the front right of Mr. Leng's car, Mr. Leng saw defendant partially exit the passenger's side window of the BMW, reach his arm over the roof, and fire two additional shots at Mr. Leng's car. While defendant was firing the second and third shots, Mr. Leng made a U-turn to the left, but the BMW also made a U-turn and continued following Mr. Leng. Mr. Leng made a second U-turn, but the BWM again also turned. As Mr. Leng approached the intersection of High Point Road and Holden Road, the stoplight was red, and he was forced to stop behind an Acura because each lane of travel was blocked by a car.
After the BMW also stopped at the light, Mr. Ksor got out of the BMW, walked up to Mr. Leng's car, and shattered a passenger's side window with a tire iron. Mr. Leng drove forward into the rear bumper of the Acura, continued into the intersection, and turned right onto Holden Road. Although the BMW ultimately also turned right onto Holden Road, Mr. Leng was able to first hide his car in a darkened parking area. The BMW drove past him and continued travelling down the road.
Mr. Leng called 911 to report the shooting, turned back onto Holden Road, and drove towards Interstate 40 (“I–40”). At approximately 11:00 p.m., Mr. Leng pulled over on the side of I40 near the Randleman Road exit and again called 911 and reported his location. Officers responded to Mr. Leng's location within 10 minutes. Mr. Leng gave statements to responding officers and was treated by Guilford County EMS for a bullet graze wound to his shin.
Also at approximately 11:00 p.m., Officer William Sizemore of the Greensboro Police Department responded to the scene of the shooting and began searching for evidence. During the search, Officer Sizemore located an unspent 9 millimeter Lugar round of ammunition in the roadway, roughly 13 to 15 feet from the intersection where Mr. Leng had been stopped at the red light.
Early the next morning, at about 3:10 a.m., Officer Adrien Dellinger of the Greensboro Police Department located a silver BMW matching Mr. Leng's description of the car that followed him. The car was registered to Mr. Ksor and was parked at Pho Nui Coffee Shop, which is located less than half a mile from the intersection of High Point and Holden Roads. Officer Dellinger noticed a dent in the roof on the passenger's side above the window which, according to Officer Dellinger, “looked like a gun blast, like if someone fired a gun close to the car, and it would have grazed off the top with the muzzle flash and the burn on the paint.” In addition, Officer Dellinger saw a tire iron on the front passenger's side floorboard of the car.
That same day, on 9 March 2011, fingerprint evidence was collected from the BMW. Later analysis of that evidence revealed that five of defendant's fingerprints were located on the exterior of the front right door of the BMW and one of defendant's fingerprints was located on the interior of the front right door of the BMW.
Leslie Popik, a crime scene investigator with the Greensboro Police Department, inspected Mr. Leng's car and observed three bullet holes, one in the driver's door and one each in the two passenger's side doors. She inserted dowel rods into the holes to determine the trajectory of the bullets. She determined that the bullet fired into the rear passenger's side door entered from a right rear angle and that the bullet fired into the front passenger's side door entered at a less severe right rear angle. She collected a spent round from the left side of the driver's floorboard.
On 10 March 2011, Mr. Leng contacted Detective Ethan Ellsworth of the Greensboro Police Department. He told Detective Ellsworth that he had located pictures of the shooter on Facebook by looking through pictures associated with Mr. Ksor's Facebook account. The Facebook name provided for the man in the pictures was “Diven Nay,” but Detective Ellsworth read comments posted on one of the pictures and determined the man depicted was defendant. The photographs matched the description of the shooter that Mr. Leng had provided to Detective Ellsworth.
On 14 March 2011, Detective Ellsworth prepared a photographic lineup of six similar-looking men, including defendant, and presented the lineup to Mr. Leng at Mr. Leng's residence. Mr. Leng looked through all six photos, and identified defendant as the shooter. When asked by Detective Ellsworth how certain he was of the identification, Mr. Leng replied, “I saw his face when he leaned out of the car and shot at me. I am positive.”
On 4 April 2011, defendant was indicted for assault with a deadly weapon with intent to kill and discharging a weapon into an occupied dwelling or moving vehicle. At trial, defendant's evidence consisted solely of four exhibits: three portions of the officers' narratives of the incident that had been used during cross-examination of the State's witnesses and a photograph of the dowel rods inserted through the bullet holes in Mr. Leng's car that had been used during the cross-examination of Officer Popik.
The jury found defendant guilty of both charges. The trial court sentenced defendant to a presumptive-range term of 64 to 86 months imprisonment for discharging a weapon into a moving vehicle and sentenced defendant to a consecutive, presumptive-range term of 25 to 39 months imprisonment for assault with a deadly weapon with intent to kill. Defendant timely appealed to this Court.
Discussion
Defendant's sole argument on appeal is that the trial court erred in denying his motions to dismiss because the State presented insufficient evidence that defendant was the perpetrator of the charged offenses. “This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007).
“ ‘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. If so, the motion is properly denied.’ “ State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). “In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994).
Here, the State presented evidence that two days after the shooting, Mr. Leng positively identified defendant in pictures by searching through Facebook pictures associated with Mr. Ksor and that the pictures that Mr. Leng found and provided to Detective Ellsworth matched the description of the shooter that Mr. Leng had previously given the detective. Also prior to trial, Mr. Leng identified defendant in a photographic lineup of six similar-looking men prepared by Detective Ellsworth and stated: “I saw his face when he leaned out of the car and shot at me. I am positive.” At trial, Mr. Leng identified defendant as the shooter a third time, testifying that he “[a]bsolutely” saw defendant's face when the BMW drove “really close ... next to” the driver's side of Mr. Leng's car, and defendant fired a gun at Mr. Leng out of the open, front passenger's side window of the BMW.
In addition to Mr. Leng's identifications, the State presented fingerprint evidence. All five of the identifiable prints found on the exterior of the front passenger's side door of the BMW belonged to defendant. One of the fingerprints found on the inside of the front passenger's door of the BMW also belonged to defendant.
Defendant nonetheless argues that under State v. Miller, 270 N.C. 726, 154 S.E.2d 902 (1967), Mr. Leng's identification of defendant was inherently incredible. In Miller, our Supreme Court explained that, even though the question whether a witness' identification of a defendant as the perpetrator of a crime has any probative value is generally one for the jury, that general rule does not apply “where the only evidence identifying the defendant as the perpetrator of the offense is inherently incredible because of undisputed facts, clearly established by the State's evidence, as to the physical conditions under which the alleged observation occurred.” Id. at 731, 154 S.E.2d at 905. However, “[w]here there is a reasonable possibility of observation sufficient to permit subsequent identification, the credibility of the witness' identification of the defendant is for the jury....” Id. at 732, 154 S.E.2d at 906.
The Court in Miller held that a witness' identification of the defendant as the perpetrator was inherently incredible because the witness only saw the perpetrator from a distance of 286 feet, he only saw the perpetrator's face when the perpetrator “ ‘peep[ed]’ “ around a corner and looked in the witness' direction, the defendant was a stranger to the witness, and six hours after the witness observed the perpetrator he picked out the defendant “in a police ‘lineup,’ so arranged that the identification of [the defendant] with the man seen earlier would naturally be suggested to the witness.” Id., 154 S.E.2d at 905.
Moreover, in Miller, although the area where the perpetrator peeped around a corner was well lighted, it was dark outside at the time the witness viewed the perpetrator, and the Court reasoned that the distance of 286 feet, along with the other physical conditions, did not permit the witness to have a reasonable opportunity to observe the perpetrator. Id. Finally, the Court also relied on the fact that, immediately after observing the perpetrator, the witness described the man to the police as one “substantially taller than the defendant” and “otherwise described him only as a man dressed in dark clothing.” Id. Based upon all of these factors, the Court determined the witness' identification of the defendant was inherently incredible. Id., 154 S.E.2d at 906.
Defendant asserts that, as in Miller, Mr. Leng had never before seen defendant and Mr. Leng's identification was uncorroborated by other eyewitnesses. Defendant further contends that based on the time of the shooting, it was dark outside when Mr. Leng claimed to see defendant's face. Finally, defendant asserts that, given the State's evidence of the angles of the bullet holes in Mr. Leng's car, the two shots fired into the passenger's side of the car entered from the rear right of the car, and “[f]or Mr. Leng to have seen the perpetrator, he would have had to look backwards in the direction of a common blind spot on the passenger side of his car.”
Defendant's arguments fail to recognize that, in Miller, the witness' testimony was inherently incredible based upon the totality of the circumstances surrounding the witness' identification. See id., 154 S.E.2d at 905. In contrast to Miller, when Mr. Leng saw defendant, he was “really close” to defendant—not 286 feet away. Further, Mr. Leng stated he “[a]bsolutely” saw defendant's face when defendant reached out of the window to shoot into the driver's side of Mr. Leng's car, unlike in Miller where the witness only briefly saw the man's face when he peeped around a corner.
In addition, Mr. Leng's description of defendant matched the pictures of defendant that Mr. Leng obtained from Facebook and provided to Detective Ellsworth, unlike the Miller witness' description of the perpetrator which described a man substantially taller than the defendant. Finally, unlike in Miller, defendant does not contend that the photographic lineup here was improperly suggestive. Miller is, therefore, distinguishable.
We believe that the issue whether Mr. Leng's identification was inherently incredible is controlled by State v. Hoff, ––– N.C.App. ––––, 736 S.E.2d 204 (2012). There, the defendant argued on appeal that there was insufficient evidence of his identity as the perpetrator of a burglary because, in part, the victim, in his convoluted trial testimony, did not actually identify the defendant as the perpetrator. Id. at ––––, 736 S.E.2d at 206–07. This Court determined that, although the victim's testimony was “convoluted and self-contradictory,” including cross-examination testimony that the victim could not positively identify the defendant as the burglar, the testimony was nonetheless some evidence of the defendant's identity as the burglar. Id. at ––––, 736 S.E.2d at 208.
In reaching its conclusion, the Court in Hoff analyzed whether the victim's identification testimony was inherently incredible. Id. at ––––, 736 S.E.2d at 208. In concluding that it was not, the Court relied on the following undisputed facts: (1) “the entire interaction between [the victim] and the intruder took place in the space between [the victim's] bedroom and bathroom”; (2) there was “no evidence that the burglar's face was entirely covered with a mask, although he was wearing a hooded jacket”; and (3) the victim “turned on his light and had a brief conversation with the intruder, giving [the victim] a clear opportunity to see the intruder.” Id. at ––––, 736 S.E.2d at 208. Given these facts, the Court held that the victim's testimony identifying the defendant as the burglar was not inherently incredible even though the testimony “was not clear and unequivocal.” Id. at ––––, 736 S.E.2d at 208.
The physical conditions surrounding Mr. Leng's opportunity to observe defendant are analogous to those relied upon by the Court in Hoff. As in Hoff, Mr. Leng had the chance to see defendant at close proximity, and there is no evidence that defendant's face was covered in any way. Moreover, Mr. Leng's certainty in his identification was significantly more compelling than the victim's identification in Hoff. Unlike the victim in Hoff, Mr. Leng consistently and positively identified defendant as the shooter twice prior to trial and a third time at trial. Given the physical conditions surrounding Mr. Leng's observation of defendant and Mr. Leng's consistent identifications of defendant, we conclude, as in Hoff, that there is a reasonable possibility that Mr. Leng had a sufficient opportunity for observation to permit subsequent identification of defendant as the shooter.
Moreover, defendant does not challenge the admission of the fingerprint evidence. Defendant does, however, contend that evidence of his fingerprints was not, alone, sufficient evidence of defendant's identity as the perpetrator to survive his motion to dismiss. In support of this argument, defendant cites State v. Reynolds, 18 N.C.App. 10, 13, 195 S.E.2d 581, 583 (1973), for the rule “that evidence given by a qualified expert that fingerprints found at the scene of a crime correspond with those of an accused, when accompanied by substantial evidence of circumstances from which the jury can find that such fingerprints could have been impressed only at the time the offense was committed, is sufficient to withstand a motion for nonsuit.” Even assuming, as defendant argues, that the State's evidence tended to show defendant and Mr. Ksor were friends and that defendant could, therefore, have left fingerprints on Mr. Ksor's car at any time, the fingerprint evidence here served to corroborate Mr. Leng's identification testimony. Therefore, Reynolds, where the only evidence identifying the defendant as the perpetrator was fingerprint evidence, id. at 11, 195 S.E.2d at 582, is inapplicable here.
Defendant further contends that the fingerprint evidence also showed that there were some fingerprints on the interior of the front passenger's side door of the BMW that did not belong to defendant or Mr. Ksor. Defendant is essentially arguing that because there were some fingerprints inside the vehicle that did not belong to him or Mr. Ksor, the fingerprint evidence did not tend to show his identity as the shooter. Defendant's argument asks the Court to view the evidence in the light most favorable to defendant, contrary to the well-established standard of review for motions to dismiss.
Finally, defendant argues that the State did not present substantial evidence that defendant was the shooter because there was no physical evidence linking defendant to any bullets or a gun. Defendant cites State v. Hayden, 212N.C.App. 482, 711 S.E.2d 492,supersedeas denied and disc. review denied, 365 N.C. 349, 717 S.E.2d 737 (2011). In contrast to Hayden, in which no one saw the defendant shoot the victim and, therefore, the defendant's access to the potential murder weapon was relevant, in this case, Mr. Leng specifically identified defendant as the man who was shooting at him.
We conclude that, in the light most favorable to the State, Mr. Leng's consistent, positive identifications of defendant, along with the fingerprint evidence, constituted substantial evidence that defendant was the shooter. See Hoff, ––– N.C.App. at ––––, 736 S.E.2d at 208 (holding victim's “convoluted and self-contradictory” testimony identifying defendant as burglar, victim's testimony that defendant had never been permitted access to his home, and evidence that defendant's fingerprints were found on outside of home at point where burglar entered, collectively constituted substantial evidence identifying defendant as burglar). Consequently, the trial court did not err in denying defendant's motion to dismiss.
No error. Judges STEELMAN and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).