Opinion
No. COA12–83.
2012-08-7
STATE of North Carolina v. Richard Brian CLOUD, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Kimberley A. D'Arruda, for the State. Edward Eldred, for defendant-appellant.
Appeal by defendant from judgment entered 28 July 2011 by Judge F. Lane Williamson in Mecklenburg County Superior Court. Heard in the Court of Appeals 30 July 2012. Attorney General Roy Cooper, by Assistant Attorney General Kimberley A. D'Arruda, for the State. Edward Eldred, for defendant-appellant.
HUNTER, ROBERT C., Judge.
Defendant appeals from judgment entered after a jury found him guilty of attempted robbery with a dangerous weapon. We find no error.
On 10 June 2009, David Plyler (“Mr.Plyler”) was driving his friend home when he hit a tree limb that had fallen in the roadway during a storm. Mr. Plyler stopped his pickup truck and checked for damage. While Mr. Plyler was checking his truck, two men approached him. Mr. Plyler identified Defendant Richard Cloud (“defendant”) as one of the men who approached him.
Mr. Plyler testified that he asked the men if they were “in trouble” or “broke down.” Defendant responded that they needed a ride. Mr. Plyler testified that he asked where they were going in case he could help. Mr. Plyler testified that defendant then pulled a pistol and stuck it in Mr. Plyler's chest and said, “no, you don't understand, I need a ride.” Eventually, Mr. Plyler managed to get back into his truck and drive away. Mr. Plyler called the police on his cell phone. Defendant was subsequently charged with attempting to rob Mr. Plyler of his 2006 Dodge Dakota truck with the threatened use of a firearm.
At trial, the following occurred on direct examination of Mr. Plyler by the assistant district attorney (“ADA”):
[ADA]: What did you think was happening that night when the defendant pointed a gun at you and demanded a ride?
[DEFENSE COUNSEL]: Objection to the speculation, Your Honor.
THE COURT: Overruled. You can say what your impression was.
[MR. PLYLER]: My impression was that the man wanted my vehicle because he had said I need a ride. I offered to give him a ride, and he said, no, you don't understand. And the tone of the voice and the look in his eyes, I need a ride. So in my impression, he was either going to shoot me and take my vehicle or he wanted me to hand him the keys.
[DEFENSE COUNSEL]: Objection to the speculation, Your Honor.
[MR. PLYLER]: That was my impression.
THE COURT: Overruled.
Defendant argues the trial court committed prejudicial error by allowing Mr. Plyler to tell the jury that in his opinion defendant intended to steal his truck when defendant asked for a ride. Defendant argues Mr. Plyler's testimony should have been limited to what defendant said and did. He asserts that it was for the jury to decide what inferences and conclusions to draw from the testimony.
“[W]hether a lay witness may testify as to an opinion is reviewed for abuse of discretion.” State v. Washington, 141 N.C.App. 354, 362, 540 S.E.2d 388, 395 (2000), disc. review denied, 353 N.C. 396, 547 S.E.2d 427 (2001).
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
N.C. Gen.Stat. § 8C–1, Rule 701 (2011). “Nothing in [this] rule would bar evidence that is commonly referred to as a ‘shorthand statement of fact.’ “ Id., Commentary.
[Our Courts have] long held that a witness may state the “instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time.” Such statements are usually referred to as shorthand statements of facts.
State v. Spaulding, 288 N.C. 397, 411, 219 S.E.2d 178, 187 (1975) (quoting State v. Skeen, 182 N.C. 844, 845, 109 S.E. 71, 72 (1921)), vacated in part on other grounds,428 U.S. 904, 49 L.Ed.2d 1210 (1976). Moreover, “[t]estimony in the form of an opinion or inference is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” N.C. Gen.Stat. § 8C–1, Rule 704 (2011).
Here, we conclude Mr. Plyler's testimony amounted to nothing more than shorthand statements of fact based on his observations. We conclude Mr. Plyler's testimony did not implicate defendant's guilt, but explained Mr. Plyler's perceptions. Accordingly, we hold the trial court did not err in allowing Mr. Plyler's testimony.
No error. Judges ELMORE and McCULLOUGH concur.
Report per Rule 30(e).