Opinion
No. COA12–1569.
2013-08-6
STATE of North Carolina v. James David CORROTHERS.
Attorney General Roy Cooper, by Assistant Attorney General Jill F. Cramer, for the State. Glenn, Mills, Fisher & Mahoney, P.A., by Carlos E. Mahoney for Defendant.
Appeal by defendant from judgment entered 17 May 2012 by Judge R. Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals 8 May 2013. Attorney General Roy Cooper, by Assistant Attorney General Jill F. Cramer, for the State. Glenn, Mills, Fisher & Mahoney, P.A., by Carlos E. Mahoney for Defendant.
ERVIN, Judge.
Defendant James David Corrothers appeals from judgments sentencing him to a term of 16 to 20 months imprisonment based upon his conviction for possession of a firearm by a felon and to two consecutive terms of 82 to 108 months imprisonment based upon convictions for robbery with a dangerous weapon. On appeal, Defendant contends that the trial court erred by failing to instruct the jury to consider the issue of Defendant's guilt of the lesser included offense of common law robbery in one of the two robbery with a dangerous weapon cases and that the trial court erred by ordering Defendant to pay jail fees calculated using an incorrect rate. After careful consideration of Defendant's challenges to the trial court's judgments in light of the record and the applicable law, we conclude that, while there is no basis for overturning the sole conviction that Defendant has challenged on appeal, one of the trial court's judgments must be vacated and the underlying case remanded to the Guilford County Superior Court for correction of the jail fee amount which Defendant was required to pay.
I. Factual Background
A. Substantive Facts
On the evening of 28 November 2010, Defendant, Y.Z. Tucker, and Mr. Tucker's brother-in-law, Donarius Legrand, gathered at the residence of Mr. Legrand's grandmother in High Point for the purpose of smoking marijuana. After leaving the residence in question in Mr. Tucker's white minivan for the purpose of purchasing a blunt, the three men began to discuss the fact that they did not have any money. During the course of this discussion, the three men, at Defendant's suggestion, decided to rob something. Ultimately, the group decided to rob the Little Caesars store at Five Points in High Point in light of its proximity to their current location. Upon arriving at the Little Caesars, the three men decided that Mr. Legrand would remain in the car while Defendant and Mr. Tucker, who planned to remain at the door, would enter the store and actually commit the robbery.
As Defendant and Mr. Tucker entered the front door of the store, LaDesha Dawson and Shanice Lytch were in the process of closing the restaurant. At that time, Ms. Dawson was washing dishes in the rear and Ms. Lytch was cleaning up around the service counter. While Mr. Tucker remained at the entrance, Defendant walked behind the service counter with a gun at his side and demanded that Ms. Lytch open the registers. Although Defendant did not show the gun to her, Ms. Lytch was frightened and complied with his instructions by opening the registers and handing him approximately $160.00 in cash. Upon hearing unusual noises, Ms. Dawson came to the front of the store, saw Mr. Tucker, whom she recognized from school, standing in the doorway, and observed Ms. Lytch handing money to Defendant from the cash register. After Defendant collected the money from Ms. Lytch, the two men exited the restaurant. Once the two men had gone, Ms. Lytch locked the door and contacted both the store manager and the police.
Neither Ms. Dawson nor Ms. Lytch knew or identified Defendant as the individual who came behind the store counter and took the money from the registers. Instead, his identity was established through the testimony of Mr. Tucker.
When investigating officers arrived at the Little Caesars store, they interviewed Ms. Dawson and Ms. Lytch, confirmed that a robbery had occurred, and began attempting to obtain relevant information. During that process, Ms. Dawson told investigating officers that she recognized one of the two perpetrators as Mr. Tucker and Ms. Lytch and Ms. Dawson collectively described the man who had come behind the counter and taken the money from the registers as a tall black male who was wearing large sunglasses, a hoodie or cap, and dark clothing. After the arrival of Ralph Harper, the store manager, investigating officers were allowed to review the surveillance videos.
On 1 December 2010, Defendant, Mr. Tucker, and Mr. Legrand gathered at the residence of Mr. Tucker's sister to smoke marijuana. As they smoked marijuana while driving in Mr. Tucker's white minivan to purchase a blunt, the three men discussed the success that they had had in connection with the robbery of the Little Caesars store and decided to rob the Triangle Grocery. As a result, after Defendant and Mr. Tucker entered the store, Defendant hopped over the counter while in possession of a firearm and grabbed some money and cigarettes. After collecting these items, the two men departed the scene.
B. Procedural History
On 15 December 2010, warrants for arrest were issued charging Defendant with two counts of robbery with a dangerous weapon. On 2 May 2011, the Guilford County grand jury returned bills of indictment charging Defendant with two counts of robbery with a dangerous weapon and one count of possession of a firearm by a felon. The charges against Defendant came on for trial before the trial court and a jury at the 14 May 2012 criminal session of the Guilford County Superior Court. On 16 May 2012, the jury returned a verdict convicting Defendant of two counts of robbery with a dangerous weapon and one count of possession of a firearm by a felon. At the conclusion of the ensuing sentencing hearing, the trial court entered judgments sentencing Defendant to a term of 16 to 20 months imprisonment based upon his conviction for possession of a firearm by a felon, to a consecutive term of 82 to 108 months imprisonment based upon his conviction for robbing the Little Caesars store with a dangerous weapon, and to a consecutive term of 82 to 108 months imprisonment based upon his conviction for robbing the Triangle Grocery with a dangerous weapon. In addition, the trial court ordered Defendant to pay costs in the amount of $5,504.50, including $5,170.00 in jail fees, in the judgment sentencing Defendant for the Little Caesars robbery. Defendant noted an appeal to this Court from the trial court's judgments.
The trial court ordered Defendant to pay $334.50 in costs in the cases in which he was convicted of robbing the Triangle Grocery with a dangerous weapon and $3,029.50 in the case in which he was convicted of possession of a firearm by a felon. Defendant has not challenged the cost amounts set out in either of these judgments or the remaining costs assessed against him in the judgment relating to the Little Caesars robbery in his brief before this Court.
II. Substantive Legal Analysis
A. Common Law Robbery Instruction
In his initial challenge to the trial court's judgment, the Defendant contends that the trial court erred by denying his request that the jury be instructed to consider the issue of his guilt of the lesser included offense of common law robbery. More specifically, Defendant contends that the record would support a determination that he did not utilize a weapon in the course of robbing the Little Caesars store and that the jury could have reasonably convicted him of common law robbery. We do not find Defendant's argument persuasive.
Although Defendant was convicted of possessing a firearm despite having a previous felony conviction at the time of the Little Caesars robbery and of robbing the Triangle Grocery, he has not challenged his conviction for either of those offenses.
“An instruction on a lesser-included offense must be given only if the evidence would permit the jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater.” State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771 (2002). The offense of robbery with a dangerous weapon involves “(1) an unlawful taking or 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. Haselden, 357 N.C. 1, 17, 577 S.E.2d 594, 605,cert. denied,540 U.S. 988, 124 S.Ct. 475, 157 L.Ed.2d 382 (2003) (citing State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998)). On the other hand, the crime of common law robbery involves “the felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear.” State v. Moore, 279 N.C. 455, 457–58, 183 S.E.2d 546, 547 (1971) (citing State v. Lawrence, 262 N.C. 162, 163, 136 S.E.2d 595, 596–97 (1964)). “The critical difference between armed robbery and common law robbery is that the former is accomplished by the use or threatened use of a dangerous weapon whereby the life of a person is endangered or threatened.” State v. Cummings, 346 N.C. 291, 325, 488 S.E.2d 550, 570 (1997) (citing State v. Peacock, 313 N.C. 554, 562, 330 S.E.2d 190, 195 (1985)), cert. denied,522 U.S. 1092, 118 S.Ct. 886, 139 L.Ed.2d 873 (1998). As a result, “in deciding whether it was proper for the trial court to instruct only on armed robbery, the dispositive issue is whether any substantial evidence was introduced at trial tending to show affirmatively that the instrument used by the defendant was not a firearm or deadly weapon.” State v. Spellman, 167 N.C.App. 374, 390, 605 S.E.2d 696, 706 (2004), disc. review denied,359 N .C. 325, 611 S.E.2d 845 (2005) (internal quotations and citation omitted). In making this determination, the evidence must be viewed in the light most favorable to Defendant. State v. Barlowe, 337 N.C. 371, 378, 446 S.E.2d 352, 357 (1994). As long as “the uncontradicted evidence is positive and unequivocal as to each and every element” of the offense charged, the trial court need not instruct on the issue of the defendant's guilt of a lesser included offense. State v. Peacock, 313 N.C. 554, 562, 330 S.E.2d 190, 195 (1985). We review challenges to the correctness of a trial court's refusal to instruct the jury concerning the issue of a defendant's guilt of a lesser included offense using a de novo standard of review. State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009).
In his brief, Defendant argues that the trial court should have submitted the issue of his guilt of the lesser included offense of common law robbery in the case in which he was charged with robbing the Little Caesars store on the grounds that the record contained conflicting evidence concerning whether Defendant used a firearm during the course of the robbery and on the grounds that the State's evidence concerning his alleged use of a firearm was equivocal. According to the contentions advanced in Defendant's brief, the jury could have reasonably inferred that he did not use a gun during the robbery based upon both information gleaned from watching the surveillance videos that were introduced into evidence and the testimony of Ms. Dawson to the effect that she did not see one. In addition, Defendant argues that the fact that the surveillance videos contradicted Ms. Lytch's testimony that Defendant kept his hands by his side throughout the robbery and Mr. Tucker's testimony that Defendant pointed a gun at Ms. Lytch renders the State's evidence to the effect that Defendant was armed with a firearm equivocal. We do not find either assertion persuasive.
At trial, both Ms. Lytch and Mr. Tucker testified that Defendant had a firearm in his possession during the commission of the robbery. Although Ms. Dawson did not claim to have seen a gun during the robbery, she was never directly asked if she had made such an observation. On the contrary, Ms. Dawson specifically testified that she did not make any observations of Defendant's hands. In addition, Ms. Dawson was not near the front of the Little Caesars store when Ms. Lytch began emptying the registers and never had a clear view of the person who ordered Ms. Lytch to give him the money. Simply put, when the record is read in context, the fact that Ms. Dawson did not claim to have seen a firearm in Defendant's possession does not provide any basis for an affirmative determination that he did not have such a weapon on his person.
Similarly, the surveillance videos provide no basis for inferring that Defendant did not have a firearm in his possession at the time of the robbery. With very limited exceptions, the surveillance videos depict Defendant as having one or both of his hands in his pockets throughout the entire robbery. Defendant's right hand is briefly out of his pocket, possibly pointed at Ms. Lytch, as he comes into full view of the camera while walking toward Ms. Lytch. However, his left hand is not visible at that time. In addition, the segment of the surveillance video contained in Video File MVI_ 7514 shows hazy images of Defendant's right hand at time markers 37:12, 37:19, 37:37–37:40, and 37:46–37:49; however, Defendant's left hand is obscured from view on each of these occasions. The only point in the surveillance video images during which both of Defendant's hands are visible at the same time is when he is taking money out of Ms. Lytch's hands. Although the images depicting Defendant's hands as he is taking the money from the registers do not show a firearm, we do not believe that one can infer that Defendant never had a firearm in his possession from these brief images given that a person receiving money would probably not have held a firearm in his or her hand while doing that and given that these images depict only a very small portion of a longer event. Thus, since the record does not contain conflicting evidence in the form of either the testimony of Ms. Dawson or the contents of the surveillance videos concerning the issue of whether Defendant utilized a firearm during the Little Caesars robbery, Defendant was not entitled to have the issue of his guilt of the lesser included offense of common law robbery submitted for the jury's consideration on the basis of Defendant's claim that the record contained conflicting evidence concerning this issue.
The surveillance videos introduced into evidence at trial depicted the events from two different angles, one of which depicted the rear of the service counter on which the registers were placed and the other of which depicted the front of the service counter.
Similarly, we are not persuaded by Defendant's contention that the evidence that he utilized a firearm during the robbery was equivocal. Both Ms. Lytch and Mr. Tucker explicitly stated that Defendant utilized a firearm during the robbery. Although Defendant contends that their testimony to the effect that he utilized a firearm during the robbery was inconsistent with the events depicted in the surveillance videos, that there are substantial reasons for questioning Ms. Lytch's testimony based upon the stress which she experienced during the robbery, and that the testimony of Mr. Tucker was of questionable credibility for a number of reasons, including the inconsistent statements that he made to investigating officers and his status as an interested witness, such arguments do not justify a decision to allow the jury to consider the issue of Defendant's guilt of common law robbery. Instead, the arguments advanced in support of this argument in Defendant's brief relate exclusively to the weight to be afforded the testimony of Ms. Lytch and Mr. Tucker and do not tend to show that their testimony concerning the issue of whether Defendant utilized a firearm during the robbery was in any way equivocal. In essence, Defendant is arguing that, since their testimony concerning his use of a firearm was of questionable credibility, the jury might chose to believe that no firearm was used during the robbery. As this Court stated in State v. Martin, 6 N.C.App. 616, 617, 170 S.E.2d 539, 540 (1969), “it is the function of the jury to weigh the evidence, determine the credibility of the witnesses and the probative force to be given their testimony and determine what the evidence proves or fails to prove.” Contrary to Defendant's assertion, the relevant issue for purposes of analyzing Defendant's challenge to the trial court's refusal to allow the jury to consider the issue of Defendant's guilt of common law robbery is whether either Ms. Lytch or Mr. Tucker equivocated with respect to the issue of whether Defendant used a firearm during the robbery, a subject to which Defendant's credibility-related arguments simply do not relate. After carefully reviewing the record, we conclude that the testimony of Ms. Lytch and Mr. Tucker to the effect that Defendant utilized a firearm during the robbery was direct and unequivocal and would not have supported an inference that Defendant did not use a weapon during the robbery. As a result, given that the positive and unequivocal testimony in the record tended to show that Defendant utilized a firearm while robbing the Little Caesars store, the trial court did not err by denying Defendant's request that the jury be instructed to consider the issue of his guilt of the lesser included offense of common law robbery.
B. Jail Fee Rate
Secondly, Defendant contends that the trial court erred by entering a judgment requiring him to pay $5,170.00 in jail fees. More specifically, Defendant contends that the increase in the statutorily established jail fee rate from $5.00 per day to $10.00 per day should have only been applicable to dates upon which Defendant spent in pretrial confinement after the effective date of that fee increase and that the trial court erred by calculating the amount of jail fees that he owed by multiplying the total number of days that he had spent in pretrial confinement by the $10.00 rate. Defendant's contention has merit.
According to N.C. Gen.Stat. § 7A–313 as it existed prior to 1 August 2011:
Persons who are lawfully confined in jail awaiting trial shall be liable to the county or municipality maintaining the jail in the sum of five dollars ($5.00) for each 24 hours' confinement, or fraction thereof, except that a person so confined shall not be liable for this fee if the case or proceeding against him is dismissed, or if acquitted, or if judgment is arrested, or if probable cause is not found, or if the grand jury fails to return a true bill.
However, the General Assembly amended N.C. Gen.Stat. § 7A–313 in 2011 N.C. Sess. L. 145, s. 31.26(e) by substituting “10 dollars ($10.00)” for “five dollars ($5.00)” effective 1 August 2011. At the time that it passed sentenced upon Defendant, the trial court ordered him to pay $5,504.50 in costs, including a total of $5,170.00 in jail fees. The amount of jail fees which the trial court ordered Defendant to pay was calculated by multiplying the 517 days which Defendant spent in pretrial confinement by the $10.00 rate specified in the 2011 amendment to N.C. Gen.Stat. § 7A–313 despite the fact that 227 of these 517 days of pretrial confinement occurred prior to 1 August 2011. As the State concedes, the amount of jail fees owed by Defendant should have been calculated by multiplying the 227 days which Defendant spent in pretrial confinement prior to 1 August 2011 at the $5.00 rate, calculating the remaining 290 days between 1 August 2011 and the date upon which the trial court's judgment was entered at the $10.00 rate, and added the two totals together, resulting in a total jail fee amount of $4,035.00. As a result, we conclude that the trial court's judgment should be vacated and that this case should be remanded to the trial court for the limited purpose of entering a new judgment in which Defendant is required to pay a properly calculated jail fee amount.
III. Conclusion
Thus, for the reasons set forth above, we conclude that Defendant's challenge to his convictions lacks merit and that the trial court erred by requiring Defendant to pay an incorrectly calculated jail fee amount. As a result, we find no error in Defendant's convictions while vacating the trial court's judgment and remanding this case to the Guilford County Superior Court for the limited purpose of requiring Defendant to pay a properly calculated amount of jail fees.
NO ERROR IN PART; VACATED AND REMANDED IN PART. Judges ROBERT C. HUNTER and STROUD concur.
Report per Rule 30(e).