Opinion
No. COA10-673
Filed 17 May 2011 This case not for publication
Appeal by Defendant from three judgments imposing active sentences after a jury found him guilty of robbery with a dangerous weapon, conspiracy to commit first degree burglary, and assault with a deadly weapon causing serious injury, entered 30 September 2009 by Judge Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 17 November 2010.
Attorney General Roy Cooper, by Assistant Attorney General Anne G. Kirby, for the State. William D. Spence for defendant-appellant.
Wake County Nos. 08-CRS-77725,77727-77728.
On 6 January 2009, Bruce Lamont Gorham ("Defendant") was indicted by the Wake County Grand Jury for robbery with a dangerous weapon, assault with intent to kill inflicting serious injury, and conspiracy to commit first-degree burglary. Following the indictment, the State filed a response to Defendant's attorney's request for discovery and gave notice to Defendant that, pursuant to N.C. Gen. Stat. § 8C-1 Rule 609(b), the State would introduce evidence of Defendant's convictions that were more than ten years old. The matter came on for trial at the 28 September 2009 Criminal Jury Session in Wake County.
The State's evidence at trial tended to establish the following. Ms. Lalarnie Lee testified that, on the night of 6 June 2008, she and her 12-year-old daughter were spending the night at the Raleigh home of Lee's boyfriend, Ralph Wright. At approximately midnight, Lee answered a knock on the front door. When she opened the door, a woman told her that her car had broken down and she needed to use a telephone. Lee directed her to a nearby church to seek help, told her that Wright was on his way home, and told her she would send him to the church to help. The woman then asked Lee if she had a cell phone the woman could use, and if she could sit on the patio and wait for help. Lee told her "No," closed the door, and went back inside the house.
As Lee returned to the living room, she heard the back door being kicked open and saw two men enter the room. Lee became frightened, and as she ran towards the front door, one of the intruders shot her in the stomach and threw her on a chair. The man who shot her began to interrogate her, asking, "Where is the money? Where is all the stuff? Where is it?" Lee told the men she did not know and pleaded that they take whatever they wanted and leave. One of the men waived a gun at Lee's head and said, "I should kill you." After grabbing a pocketbook and a briefcase, the men left. An ambulance arrived and transported Ms. Lee to the hospital, where she underwent emergency surgery to remove the bullet, which had lodged near her spine.
At trial, Ashley Wilson, one of the men who participated in these events, testified for the State. Prior to his testimony to these events, Wilson pled guilty to burglary, armed robbery, and felony assault with intent to kill inflicting serious injury. Wilson testified in the hope that his cooperation would be taken into consideration when he was sentenced.
Wilson testified to the events that led up to the incident at Wright's house on the night of 6 June 2008. Wilson was in Washington, North Carolina when Dwante Barnes picked him up to go for a car ride. Barnes and Wilson subsequently met up with Barnes' girlfriend, Christy Small, and Ronnie Brooks. The four then drove to Raleigh in two cars.
When they arrived in Raleigh, the four stopped in a Wal-Mart parking lot, where Defendant arrived a few minutes later. After a brief discussion between Barnes and Defendant, all of the participants piled into one car. Defendant then drove Wilson, Barnes, Small, and Brooks ("the participants") to Wright's house. En route, Defendant explained that he believed Wright had some money and drugs located in his house. After this discussion, Wilson understood that they were planning to rob or break in to Ralph Wright's house. Wilson understood that his role would be to go into the house with Brooks and look for the money and drugs.
When they arrived at Wright's house, Wilson and Brooks got out of the car. The others left. Wilson and Brooks then sat nearby and waited to "determine their next move." About twenty minutes later, Defendant called Wilson's cell phone and told Wilson he was at a bar with Wright. Wilson testified that Defendant was orchestrating their moves and that Wilson was to break into Wright's house after the phone call.
About ten minutes after Defendant's phone call, Wilson saw Small walk to the door of Wright's house. Wilson testified that he and Brooks knew this was the moment they were to leave the woods, stand beside the house, and wait to enter.
As they stood on the side of the house, Wilson and Brooks listened to Small's conversation with Lee. When they heard Lee tell Small that she could not use her phone, Wilson and Brooks went to the back door of the house and kicked in the door. Wilson heard Lee scream and saw her going towards the door. Wilson went to the bedroom, where he encountered Lee's daughter. Wilson asked her where the money was located, and the young girl only shook her head.
Wilson then heard a shot fired. When he heard the shot, Wilson turned around and saw a briefcase and pocketbook on the floor; Wilson grabbed them and ran out the door. Brooks followed. The two men ran towards the car, which was parked down the street. When they got in the car, Barnes drove the car and spoke to Defendant on his cell phone. Barnes picked up Defendant and they drove back to Wal-Mart.
Christy Small also testified for the State on the advice of her attorney that she would receive leniency at her sentencing for pleading guilty to conspiracy to commit armed robbery, accessory after the fact to robbery, assault and burglary. She testified that on 6 June 2008, she met Barnes in Washington. Barnes was her boyfriend at the time. Small testified that she arrived with Barnes, Defendant, and Brooks at the gas station near Wright's home. While everyone was in the vehicle together, Barnes, Defendant, and the other men told Small that she was to go knock on the front door of the house, and when the woman opened the door, she was to get out of the way and return to the car. Small followed the instructions, and when Lee would not open the door, she walked away from Wright's house. As she walked up the street, she heard a noise from the house, then saw Barnes' car driving up the road. She got in his car and saw Brooks and Wilson were already in the car. Small heard the three men arguing in the car about what had transpired and their disappointment with the result of the events of the evening. Small also testified that Barnes was on the phone with Defendant for about an hour discussing what had happened.
Ralph Wright testified for the State. At the time of his testimony, Wright was awaiting sentencing on unrelated criminal charges and his testimony was motivated in part by a desire to provide "substantial assistance" to law enforcement officers.
Wright had known Defendant since 2007 and owed Defendant $2,500 as a result of a drug deal earlier in the year. On 6 June 2008, at 3 p.m. Defendant came by Wright's house asking him to pay this debt. Wright told Defendant that he did not have the money. Later that night, around 6 p.m., Wright received a call from Defendant asking Wright to come meet him.
Detective Kenny Blackwell of the Wake County Sheriff's Office testified about his investigation into the 6 June 2008 robbery. A confidential informant informed him that Christy Small and Ashley Wilson had been involved in the robbery. Detective Blackwell arrested both persons and questioned them after Lee identified them in a photographic lineup. Small and Wilson gave conflicting statements to Detective Blackwell before admitting to their roles and Defendant's role in these events.
Defendant testified he had known Ralph Wright for a few years and considered him a friend. Defendant testified he would buy drugs from Wright and sell drugs for him. Defendant, however, denied Wright owed him money and denied calling Wright to ask him for money. Defendant admitted he had been in Wright's house to visit Wright on many occasions and that Wright's girlfriend was there on at least one such occasion. Defendant denied, however, that he had ever met Small or Wilson and denied he had ever instructed them to commit any crimes. He further testified he knew Mr. Barnes as they "used to shoot pool together," but did not know Mr. Brooks. During his cross-examination, Defendant was asked about convictions for felonies more than ten years old.
At the close of the State's evidence, and again at the close of all the evidence, Defendant filed motions to dismiss for lack of sufficient evidence, which were denied. The trial judge conducted a charge conference, at which time he determined he would instruct the jury on the charges contained in the indictments and would include, over Defendant's objection, a charge on the lesser included offense of assault with a deadly weapon with intent to inflict serious injury.
II. Jurisdiction and Standard of Review
This is an appeal of right and this Court has jurisdiction under N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444(a). Defendant suggests that each of his assignments of error should be addressed under the de novo standard of review except those assignments of error requiring plain error review. We discuss the appropriate standard of review in turn.
III. Analysis A. Trial Court's Denials of Defendant's Motion to Dismiss
In three assignments of error, Defendant argues that the trial court erred in failing to dismiss, for insufficient evidence, the charges of robbery with a dangerous weapon, felony assault with a deadly weapon, and conspiracy to commit first-degree burglary. We disagree.
When a defendant moves for dismissal, the motion should be denied if "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) (citation and quotation marks omitted). In ruling on a defendant's motion for dismissal, evidence is to be considered in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom. State v. Kemmerlin, 356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002). "[I]f there is substantial evidence — whether direct, circumstantial, or both — to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied." State v. Abshire, 363 N.C. 322, 328, 677 S.E.2d 444, 449 (2009) (citation and quotation marks omitted). 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).
1. Robbery with a Dangerous Weapon
Robbery with a dangerous weapon is (1) the unlawful taking or an attempt to take personal property from the person or in the presence of another (2) by a person in possession of, or with the use or threatened use of, a firearm or other dangerous weapon (3) "whereby the life of a person is endangered or threatened." N.C. Gen. Stat. § 14-87 (2009); State v. Willis, 127 N.C. App. 549, 551, 492 S.E.2d 43, 44 (1997). Any person who aids or abets another person in the commission of an armed robbery is guilty of the same offense. N.C. Gen. Stat. § 14-87(a); State v. Donnell, 117 N.C. App. 184, 188, 450 S.E.2d 533, 536 (1994). To be guilty as an aider and abettor, the accused must "aid or actively encourage the person committing the crime or in some way communicate to th[e principal] his intention to assist in its commission." State v. Goode, 350 N.C. 247, 260, 512 S.E.2d 414, 422 (1999).
When ruling on a defendant's motion to dismiss a charge of aiding and abetting, the court may "(1) infer a defendant's communication of his intent to aid from his actions and from his relationship to the actual perpetrators; (2) consider his motives to assist in the crime; and (3) consider the defendant's conduct before and after the crime." State v. Walker, 167 N.C. App. 110, 132, 605 S.E.2d 647, 662 (2004), vacated on other grounds, 361 N.C. 160, 695 S.E.2d 750 (2006). More specifically, when the accused is a friend or relative of the perpetrator and "knows that his presence will be regarded by the perpetrator as an encouragement and protection, presence alone may be regarded as an encouragement." Goode, 350 N.C. at 260, 512 S.E.2d at 422.
Here, taken in a light most favorable to the State, the evidence of Defendant's communication of his intent, his motive to assist, and his conduct before and after the events show that Defendant did aid and abet the other participants in the robbery of Lee. Testimony established that Defendant and Wright were engaged in a criminal enterprise of dealing drugs and, as a result, Wright owed Defendant money; Defendant had been to Wright's home, the situs of the robbery, and directed the participants to this locale; he met the participants in the evening hours and drove them to Wright's home; he instructed Small to knock on the door, and he instructed the others to enter the house when the door was opened; Defendant told the participants they would find drugs and money inside the house. Furthermore, immediately after the events at Wright's home, the other participants in this venture called Defendant to inform him of the results, and Defendant met with them to discuss the results.
Defendant further argues, despite any counseling he may have given the participants, the State failed to present sufficient evidence that he counseled the participants to use a firearm or knew that any of the participants had a firearm during the evening. Based upon this lack of direct evidence, Defendant argues the participants acted contrary to the common design and plan, and he should not be held criminally responsible for such acts. Therefore, he contends, there is a lack of substantial evidence that he aided and abetted armed robbery or assault with a deadly weapon.
The significance of Defendant's argument in this case is heightened by the following question the jury submitted to the trial judge during their deliberations: "Question about the robbery with a firearm, aiding and abetting charge. If a person aided in a robbery, but he had no knowledge a gun would be involved, is he still responsible for that crime."
In answer to this question, the trial judge instructed the jury as follows:
One who aids and abits [sic] is liable for any criminal act which in the ordinary course of things was a natural and probable consequence of the crime that he advised or commanded.
If you find the defendant intended for his accomplices to commit some crime other than the offense of robbery with a firearm, you must also determine beyond a reasonable doubt whether the offense of robbery with a firearm is a criminal act which in the ordinary course of things was a natural and probable consequence of the crime that he did advise or command.
In addition to arguing there was insufficient evidence to support the charge of armed robbery, Defendant contends this instruction to the jury amounted to plain error. The State contends that the use of a dangerous weapon is a natural and probable consequence of a residential robbery. Thus, Defendant should be held liable for the participants' use of a deadly weapon in the commission of the crime he counseled them to commit. See State v. Hewitt, 33 N.C. App. 168, 234 S.E.2d 468 (1977). Whether an unintended crime was a natural and probable consequence of the intended crime must be determined on a case-by-case basis. State v. Bellamy, 172 N.C. App. 649, 669-71, 617 S.E.2d 81, 95-96 (2005). Here, we conclude the trial court gave the proper instruction to the jury for it to determine whether, under the facts presented, the use of arms or a deadly weapon was a natural and probable consequence of Defendant's actions. We further conclude the State presented substantial evidence to permit the jury to determine whether the use of a firearm was a natural and probable consequence of the plan Defendant set in motion.
Defendant also contends that, in addition to the lack of any evidence that he instructed the participants to use a firearm in the commission of these events, there is no evidence he was physically present in sufficient proximity to the events to render aid to his confederates should the need have arisen. Because he would not have been physically able to assist, Defendant contends that there is a lack of substantial evidence to submit the theory of aiding and abetting in the robbery to the jury. We disagree.
As the State correctly maintains, the requirement of constructive or physical presence as an element of aiding and abetting has changed in North Carolina with the enactment of section 14-5.2. See N.C. Gen. Stat. § 14-5.2 (2009) ("Every person who heretofore would have been guilty as an accessory before the fact to any felony shall be guilty and punishable as a principal to that felony."); State v. Bond, 345 N.C. 1, 23-24, 478 S.E.2d 163, 174-75 (1996) (With the enactment of N.C. Gen. Stat. § 14-5.2 "accessories before the fact, who do not actually commit the crime, and indeed may not have been present, can be convicted of first-degree murder under a theory of aiding and abetting. A showing of defendant's presence or lack thereof is no longer required."). Given the evidence that Defendant drove the participants to the site of the robbery and communicated with them immediately before the robbery via cell phone, we conclude the State's evidence meets the substantial evidence standard for aiding and abetting a robbery. The trial court did not err in denying Defendant's motion to dismiss the charge of robbery with a dangerous weapon.
2. Felony Assault with a Deadly Weapon
Defendant also argues the trial court erred in denying his Motion to Dismiss for insufficient evidence to support the charge of assault with a deadly weapon with the intent to kill and inflicting serious injury. Specifically, Defendant alleges there was insufficient evidence to show he was actually or constructively present when Lee was shot. We disagree.
Although indicted for assault with a deadly weapon with the intent to kill and inflicting serious injury, the trial court instructed the jury that Defendant could be found guilty of the lesser included offense of assault with a deadly weapon inflicting serious injury on a theory of acting in concert with the participants. The jury convicted Defendant of the lesser offense.
"To act in concert means to act together, in harmony or in conjunction one with another pursuant to a common plan or purpose." State v. Joyner, 297 N.C. 349, 356, 255 S.E.2d 390, 395 (1979). The acting-in-concert theory of liability permits a defendant to be convicted of a crime if the evidence establishes that a defendant was actually or constructively present at the scene of a crime and that the defendant was acting with another who commits the crime pursuant to a common scheme or purpose. Id. "Constructive presence is not determined by the defendant's actual distance from the crime; the accused simply must be near enough to render assistance if need be and to encourage the actual perpetration of the crime." State v. Combs, 182 N.C. App. 365, 370, 642 S.E.2d 491, 496, aff'd, 361 N.C. 585, 650 S.E.2d 594 (2007).
Here, the evidence established Defendant called the participants during the commission of the crime and told them he was at a bar with the homeowner, thereby encouraging the participants to execute their planned crime. Viewing this evidence in the light most favorable to the State, we conclude this is sufficient evidence to support the charge that Defendant acted in concert with the other participants to commit a felony assault with a deadly weapon. The trial court did not err in denying Defendant's Motion to Dismiss.
3. Conspiracy to commit First Degree Burglary
Next, Defendant argues that there was insufficient evidence presented that Defendant had an agreement with the participants, express or implied, to commit first degree burglary. We disagree.
Our case law does not require an express agreement to show a conspiracy. A criminal conspiracy is "an agreement, express or implied, between two or more persons, to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means." State v. Gell, 351 N.C. 192, 209, 524 S.E.2d 332, 343 (2000). The commission of a criminal conspiracy is complete upon the formation of the agreement to achieve its objective, but it is a continuing offense and may continue over an extended period of time, even a number of years, so long as efforts to pursue the objective continue. State v. Brewer, 258 N.C. 533, 543, 129 S.E.2d 262, 270, appeal dismissed, 375 U.S. 9, 11 L.Ed.2d 40 (1963). In this case, the evidence presented established that Defendant informed the participants that drugs and money were located inside Wright's home and that he instructed the other participants on how to gain entry to Wright's home. Furthermore, Defendant informed the participants that Wright was in a local bar, thereby signaling the nighttime entry into the home. Thus, there was substantial evidence that Defendant conspired with the other participants to commit first-degree burglary.
B. Evidence of Defendant's Prior Convictions
Defendant next alleges the trial court committed plain error in allowing the district attorney to cross-examine Defendant regarding prior convictions that were over ten years old. Although Defendant was served with written notice of the State's intent to use such convictions and he entered a preliminary objection prior to trial as to the use of such convictions, the evidence, when admitted at trial, was allowed without objection. Because this error was not preserved at trial, Defendant has failed to preserve this error for review. State v. Black, 308 N.C. 736, 740-41, 303 S.E.2d 804, 806-07 (1983). Nonetheless, as Defendant has "specifically and distinctly contended" the questioning amounted to plain error, he is entitled to have this evidentiary question reviewed under the plain error standard. N.C.R. App. P. 10(a)(4) (2011).
Plain error occurs when "the error is so fundamental that it undermines the fairness of the trial, or where it had a probable impact on the guilty verdict." State v. Floyd, 148 N.C. App. 290, 295, 558 S.E.2d 237, 240 (2002). Even though it is available, plain error review establishes a high evidentiary hurdle for a defendant to overcome. Given the eyewitness testimony of Defendant's confederates, we cannot say that a jury would have reached a different conclusion had the questioning about Defendant's convictions that were more than ten years old not been allowed. In finding that plain error review is available for Defendant, but not determinative, we make no determination as to whether the trial court erred in admitting the evidence at trial.
C. Jury Instruction for Lesser Included Offense
Defendant was charged with assault with a deadly weapon with intent to kill and inflicting serious injury. In addition to charging the jury with an instruction for this charge, the trial court also charged the jury, over Defendant's objection, with an instruction for the lesser included offense of assault with a deadly weapon inflicting serious injury. The jury found Defendant guilty of the lesser included offense. Defendant contends the trial court erred by instructing the jury on the lesser included offense.
Defendant asks that we decline to follow State v. Jones, No. 01-455, 149 N.C. App. 977, 563 S.E.2d 308, 2002 WL 857383 (2002) (unpublished), in which we concluded a defendant does not have the right to avoid jury instructions on lesser included offenses if properly presented by the evidence. We find no authority, and have not been supplied with any authority, to support Defendant's proposition that a defendant has a right to require the trial court to refrain from charging the jury with an instruction on a lesser included offense when the evidence supports the instruction. Accordingly, we conclude, as in Jones, Defendant has no such right. The trial court properly instructed the jury and Defendant's argument is dismissed.
D. Clerical Error in the Classification of Defendant's Felony Conviction
Defendant also asks that we correct a clerical error on the judgment and commitment form for 08 CRS 77728, conspiracy to commit first degree burglary. The trial court erroneously classified the offense as a Class F felony rather than a Class E felony. The State concedes the error, but contends the trial court is the proper forum to correct this error upon motion by the Defendant. We agree and remand this clerical error to the trial court for correction.
No error in part, no plain error in part, and remanded in part to correct a clerical error.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).