Opinion
No. COA12–1120.
2013-05-7
STATE of North Carolina v. Romain Don–Lee DAVIS, Defendant.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Terence D. Friedman, for the State. Brock, Payne & Meece, P.A., by C. Scott Holmes, for defendant-appellant.
Appeal by defendant from judgment entered on or about 3 February 2012 by Judge F. Lane Williamson in Superior Court, Mecklenburg County. Heard in the Court of Appeals 28 February 2013. Attorney General Roy A. Cooper, III, by Assistant Attorney General Terence D. Friedman, for the State. Brock, Payne & Meece, P.A., by C. Scott Holmes, for defendant-appellant.
STROUD, Judge.
Defendant appeals from judgment entered upon the jury's convictions of assault with a deadly weapon with intent to kill inflicting serious injury, attempted robbery with a dangerous weapon, and conspiring to commit robbery with a dangerous weapon. For the following reasons, we find no error.
I. Background
The State's evidence tended to show that in July of 2010 defendant, Sammie Davis, and Josiah Knox stayed in a motel where Davis and Knox discussed robbing a cab driver. On 7 July 2010, Mr. William Strickland of Charlotte Checker Cab picked up defendant, Davis, and Knox in a van. Davis told Mr. Strickland where to drive, and once they arrived at their destination Davis said, “I heard cab drivers make a lot of money.... So you know what time it is!” Davis pointed a gun at Mr. Strickland. Defendant said to Sammie, “You ain't ready to do that.” Davis responded, “Why not? We already planned this before we left.” Davis then shot Mr. Strickland in the head. Defendant, Davis, and Knox ran from the van. Later that day, police found defendant, Davis, and Knox at defendant's grandmother's home.
As used herein “Davis” refers to Sammie Davis, not defendant.
After a trial by jury, defendant was found guilty of assault with a deadly weapon with intent to kill inflicting serious injury (“assault”), attempted robbery with a dangerous weapon (“attempted robbery”), and conspiracy to commit a robbery with a dangerous weapon (“conspiracy”). The trial court entered judgment upon defendant's convictions, and defendant appeals.
II. Motion to Dismiss
Defendant appeals the trial court's denial of his motions to dismiss the charges of aiding and abetting and conspiracy.
The standard of review for a motion to dismiss is well known. A defendant's motion to dismiss should be denied if there is substantial evidence of: (1) each essential element of the offense charged, and (2) of defendant's being the perpetrator of the charged offense. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. The 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. Johnson, 203 N.C.App. 718, 724, 693 S.E.2d 145, 148 (2010) (citations and quotation marks omitted).
A. Aiding and Abetting
The trial court instructed the jury on aiding and abetting. Defendant contends that “the trial court erroneously failed to dismiss the charges of ... [assault] and attempted robbery at the close of evidence because there was insufficient evidence of aiding and abetting as a matter of law[.]” (Original in all caps.) Defendant argues that “there is no evidence that ... [he] contributed to the crime in any way beyond his mere presence.”
The law regarding aiding or abetting is that a person aids when, being present at the time and place, he does some act to render aid to the actual perpetrator of the crime though he takes no direct share in its commission; and an abettor is one who gives aid and comfort, or either commands, advises, instigates or encourages another to commit a crime.
Mere presence, even with the intention of assisting in the commission of a crime cannot be said to have incited, encouraged or aided the perpetrator thereof, unless the intention to assist was in some way communicated to the perpetrator; but if one does something that will incite, encourage, or assist the actual perpetration of a crime, this is sufficient to constitute aiding and abetting.
State v. Villatoro, 193 N.C.App. 65, 72, 666 S.E.2d 838, 843 (2008) (citations, quotation marks, and brackets omitted). “Circumstances to be considered in determining whether [defendant] aided and abetted in the perpetration of the crime are his relationship to the actual perpetrator, the motives tempting him to assist, his presence at the time and place of the crime, and his conduct before and after the crime.” State v. McCabe, 1 N.C.App. 461, 466, 162 S.E.2d 66, 70 (1968).
In State v. Corbin, this Court determined that there was sufficient evidence for a jury to find that a defendant aided and abetted in an armed robbery when the defendant discussed committing the robbery, accompanied two other people to the scene of the crime, watched while the other two people committed the robbery, and drove himself and the other two people from the scene of the crime. State v. Corbin, 48 N.C.App. 194, 195–96, 268 S.E.2d 260, 262,disc. review denied, 301 N.C. 97, 273 S.E.2d 301 (1980). Here, we conclude that defendant was more than “merely present” during the offenses, as he heard Davis and Knox discuss robbing a cab driver, got into a cab with them, left the scene of the crime with them, and stayed with them at his grandmother's house. See id.; McCabe, 1 N.C.App. at 466, 162 S.E.2d at 70. Accordingly, this argument is overruled.
B. Conspiracy
Defendant contends that the trial court erred in failing to dismiss the charge of conspiracy.
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. To hold a defendant liable for the substantive crime of conspiracy, the State must prove an agreement to perform every element of the crime.
State v. Privette, ––– N.C.App. ––––, ––––, 721 S.E.2d 299, 313, disc. review denied, ––– N.C. ––––, 724 S.E.2d 532 (2012) (citations and quotation marks omitted).
Here, the State's evidence at trial included DVD recordings of a police interview with defendant. The State's brief cites to the DVD, and while the State stated that it will “request that the Clerk of Superior Court of Mecklenburg County forward to the court an official copy of” the DVD recordings, we have no such evidence.
North Carolina Rule of Appellate Procedure 9 provides that
[t]he record on appeal in criminal actions shall contain ... copies of all other papers filed and statements of all other proceedings had in the trial courts which are necessary for an understanding of all issues presented on appeal, unless they appear in the verbatim transcript of proceedings[.]
N.C.R.App. P. 9(a)(3)(i) (2010). While it certainly would have been helpful if the State had sent this Court a copy of the DVD recordings, under our rules of appellate procedure “[i]t is the appellant's duty and responsibility to see that the record is in proper form and complete.” State v. Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 644 (1983). As defendant has failed to provide us with what appears to be a substantial portion of the evidence against him on an issue where he is challenging the sufficiency of the evidence against him, we conclude that “defendant has failed to bring forward a record sufficient to allow proper review of this issue and has failed to overcome the presumption of correctness at trial.” State v. Ali, 329 N.C. 394, 412, 407 S.E.2d 183, 194 (1991). This argument is overruled.
III. Hearsay
Defendant next contends that the trial court erroneously admitted hearsay statements during his trial. On reexamination of Frederick Knox, Josiah's father, the State asked, “And did your son plead guilty to conspiracy to commit robbery with a dangerous weapon by conspiring with ... [defendant] and Sammie Davis to commit the felony of robbery with a dangerous weapon against William Strickland?” Defendant objected to the State's inquiry and now appeals the trial court's allowance of this statement during his trial. But before the State's redirect examination, during defendant's cross-examination, defendant's attorney asked Mr. Knox, “Have you thought much about what your involvement was in this case other than the fact that your son was arrested and pled guilty and went to prison?” shortly followed by the question, “Have you thought about what happened and the interview you gave in much detail, I guess, is the better question, other than the fact that your son, Josiah, was arrested and pled guilty and went to prison?”
“A defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct[,]” N.C. Gen.Stat. § 15A–1443(c) (2009), and “a defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review.” State v. Barber, 147 N.C.App. 69, 74, 554 S.E.2d 413, 416 (2001), disc. review denied, 355 N.C. 216, 560 S.E.2d 141 (2002). Here, as it was defendant's own question that led to the introduction of arguably inadmissible evidence, defendant “has waived his right to all appellate review[.]” Id. This argument is dismissed.
IV. Jury Instructions
Lastly, defendant argues the trial court erred in failing to instruct the jury in regard to three questions the jury had asked. During defendant's trial, in response to the jury's questions, the trial judge, defendant's attorney, and the State's attorney engaged in a lengthy discussion regarding the appropriate response. Ultimately, defendant's attorney specifically objected to providing any additional clarification of the instructions. In response to defendant's attorney, the trial judge agreed not to provide any additional clarification beyond telling the jury to refer back to the written instructions they had already received. As once again, defendant invited the error, if any, by specifically requesting that the trial court not clarify the instructions or respond to the jury's questions beyond referring them back to the original instructions, we will not review this issue on appeal. See id.
V. Conclusion
For the foregoing reasons, we find no error.
NO ERROR. Judges STEPHENS and DILLON concur.
Report per Rule 30(e).