Opinion
No. COA12–793.
2013-04-16
STATE of North Carolina v. Charles Lamont GREGORY, III.
Attorney General Roy Cooper, by Special Deputy Attorney General David W. Boone, for the State. McCotter Ashton, P.A. by Charles K. McCotter, Jr. and Rudolph A. Ashton, III, for defendant-appellant.
Appeal by defendant from judgments entered 21 September 2011 by Judge Milton F. Fitch, Jr. in Pasquotank County Superior Court. Heard in the Court of Appeals 12 December 2012. Attorney General Roy Cooper, by Special Deputy Attorney General David W. Boone, for the State. McCotter Ashton, P.A. by Charles K. McCotter, Jr. and Rudolph A. Ashton, III, for defendant-appellant.
CALABRIA, Judge.
Charles Lamont Gregory, III (“defendant”) appeals from judgments entered upon jury verdicts finding him guilty of robbery with a dangerous weapon (“RWDW”), conspiracy to commit RWDW, possession of a firearm by a felon, felonious breaking and/or entering and felonious possession of stolen property. We find no error in part and remand in part for resentencing.
I. Background
On 17 August 2010, William Kendall Armstrong, Jr. (“Armstrong”) drove defendant and Iken Wallace (“Wallace”) to Anthony McNeil's (“McNeil”) home in Elizabeth City, North Carolina. Defendant and Wallace (“the men”) were both dressed in black clothing and wore bandanas over their faces when they entered McNeil's home. The men robbed McNeil of at least $1000.00 in cash, several small items including McNeil's cell phone and ransacked the rooms of his home.
Shortly after Armstrong drove away from McNeil's home, he heard a gunshot. Subsequently, Armstrong returned to retrieve the men. One of McNeil's neighbors was outside when she heard the gunshot and observed a vehicle speed away. The neighbor noted the license plate number and provided the information to McNeil. McNeil reported the license plate number of the vehicle to law enforcement.
When an officer stopped the vehicle, defendant and Wallace jumped from the vehicle and escaped on foot. Armstrong remained in the vehicle. Officers searched the vehicle and found several items which McNeil reported as having been stolen located in the seat occupied by defendant. In addition to the stolen items, officers found several articles of the men's clothing. After DNA was gathered from the clothing and other items, it was tested by the SBI.
Defendant was arrested and indicted for RWDW, conspiracy to commit RWDW, possession of a firearm by a felon, felonious breaking and entering, felonious larceny and felonious possession of stolen goods. The State proceeded on all charges except the charge of felonious larceny. Therefore, that charge was not submitted to the jury. After a trial in Pasquotank County Superior Court, the jury returned verdicts finding defendant guilty of all charges.
The trial court sentenced defendant as a Felony Prior Record Level III, and ordered defendant to serve a minimum of 84 and a maximum of 110 months for RWDW, a minimum of 33 and a maximum of 49 months for conspiracy to commit RWDW, and a minimum of 17 and a maximum of 21 months for possession of a firearm by a felon. These sentences were to be served consecutively in the North Carolina Department of Correction. The trial court consolidated the judgments for breaking and/or entering and possession of stolen goods and sentenced defendant to a minimum of 10 and a maximum of 12 months, suspended this sentence and placed defendant on supervised probation that was to begin upon his release from incarceration. Defendant appeals.
II. DNA Evidence
The trial court denied defendant's motion to exclude DNA evidence and his motion to continue. Defendant argues that the trial court erred by denying both motions. We disagree.
As an initial matter, we note defendant contends that the trial court's denial of both motions denied him the constitutional right to prepare a defense and present evidence on his own behalf. Prior to trial, when defendant made his initial motion, the parties had an off-the-record discussion with the judge at the bench. When defendant renewed his motion at the close of the State's evidence, he argued that the evidence “violated the discovery procedure and the discovery statute in that [he] was not given a reasonable amount of time to prepare.” However, defendant failed to make a constitutional argument at trial. Where defendant has not made a constitutional argument at trial, he will not be allowed to argue it for the first time on appeal. See State v. Ellis, 205 N.C.App. 650, 654, 696 S.E.2d 536, 539 (2010) (where this Court refused to address whether the defendant's constitutional rights were violated when the trial court denied his motion to continue when the defendant had not preserved the issue at trial.).
During discovery, “upon motion of the defendant, the court must order” the State to disclose expert witnesses and any reports made by such witnesses to a defendant. N.C. Gen.Stat. § 15A–903 (a)(2) (2011). However, even if the defendant does not make a motion, “[i]f the State voluntarily provides disclosure under G.S. 15A–902(a), the disclosure shall be to the same extent as required by subsection (a)....” N.C. Gen.Stat. § 15A–903(b) (2011). N.C. Gen.Stat. § 15A–902 provides in pertinent part:
(a) A party seeking discovery under [Article 48] must, before filing any motion before a judge, request in writing that the other party comply voluntarily with the discovery request. A written request is not required if the parties agree in writing to voluntarily comply with the provisions of [this Article]....
(b) To the extent that discovery authorized in this Article is voluntarily made in response to a request or written agreement, the discovery is deemed to have been made under an order of the court for the purposes of this Article.
N.C. Gen.Stat. § 15A–902(a)–(b) (2011).
In the instant case, there is no evidence in the record that the parties agreed in writing to voluntarily comply with discovery or that defendant ever made a request for discovery, pursuant to N.C. Gen.Stat. § 15A–902, or that defendant made a motion for discovery pursuant to N.C. Gen.Stat. § 15A–903(a). N.C.R.App. P. 9(a) (2013)(“review is solely upon the record on appeal, the verbatim transcript of proceedings ... and any other items filed pursuant to this Rule....”). Therefore, defendant's contention that the State's disclosure of the expert's information prior to trial violated its duty to timely provide discovery pursuant to N.C. Gen.Stat. § 15A–903 is without merit. See State v. Powell, 61 N.C.App. 124, 126, 300 S.E.2d 270, 272 (1983) (where the Court found that the defendant could not argue that he was denied his right to inspect evidence where there was no evidence in the record that the “defendant made a timely motion to assert [his] statutory right of discovery.”); State v. Harden, 42 N.C.App. 677, 682, 257 S.E.2d 635, 639 (1979). Furthermore, while “the State is required to disclose ‘evidence [that] is material either to guilt or to punishment[,]’ “ the State is only required to “turn over such information at trial, not prior to trial, because ‘[d]ue process is concerned that the suppressed evidence might have affected the outcome at trial and not that the suppressed evidence might have aided the defense in preparing for trial.’ “ State v. Haselden, 357 N.C. 1, 13, 577 S.E.2d 594, 602 (2003) (citations omitted).
Even assuming, arguendo, that the State violated N.C. Gen.Stat. § 15A–903(a), there was no prejudicial error. Given the evidence, defendant cannot show that if the DNA evidence had been excluded, there is a reasonable possibility that the jury would have reached a different verdict. Despite defendant's contentions, N.C. Gen.Stat. § 15A–903(a) does not apply, as the record does not reflect that defendant made a request or motion for discovery. Even assuming, arguendo, the statute applied, defendant has failed to show prejudicial error. Therefore, the trial court did not err by admitting the testimony regarding the DNA evidence or denying defendant's motion to continue.
III. Motion to Dismiss
Defendant next contends that the trial court erred by denying his motion to dismiss the charge of conspiracy because the State's evidence was insufficient to prove an agreement between defendant and Wallace. We disagree.
Upon a defendant's motion to dismiss, the trial court determines “only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.” State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991). Whether substantial evidence exists “is a question of law for the court.” Id. “ ‘Substantial evidence’ is that amount that ‘a reasonable mind might accept as adequate to support a conclusion.’ “ State v. Stevenson, 328 N .C. 542, 545, 402 S.E.2d 396, 398 (1991) (citation omitted). The evidence must be evaluated “in the light most favorable to the State” and “[t]he defendant's evidence is not to be considered unless it is favorable to the State.” State v. Williams, 154 N.C.App. 176, 178, 571 S.E.2d 619, 620–21 (2002).
North Carolina does not require direct evidence of an express agreement between two or more individuals to establish 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 by unlawful means. Direct proof of conspiracy is rarely available, so the crime must generally be proved by circumstantial evidence. A conspiracy may be, and generally is, established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy.
State v. Clark, 137 N.C.App. 90, 95, 527 S.E.2d 319, 322 (2000) (internal quotations and citations omitted).
In the instant case, defendant contends the State failed to present evidence that he and Wallace had a conversation regarding an agreement to commit the crime. However, direct proof of conspiracy is rarely available; generally the agreement is proved by circumstantial evidence. See id. In addition, defendant has provided no authority suggesting that direct proof of a conversation between co-conspirators is necessary to establish a conspiracy.
The State presented considerable circumstantial evidence of a conspiracy between defendant and Wallace. Defendant directed Armstrong to pick up Wallace; both men wore black clothes; defendant instructed Armstrong to take both of them to McNeil's home; upon arriving at McNeil's home, both men entered McNeil's home together; McNeil described the men as acting together; both men left McNeil's home together. Finally, when Armstrong's vehicle was stopped by law enforcement, both men jumped out of the vehicle and ran away together. Viewed in the light most favorable to the State, there was sufficient circumstantial evidence established by a number of acts that, taken collectively, indicated an agreement existed between defendant and Wallace to commit an unlawful act by unlawful means. This argument is overruled.
IV. Prior Record Level
Defendant contends that the trial court erred by sentencing him as a prior record level III because the worksheet assigns points to a prior conviction which the State also used to support the indictment for possession of a firearm by a felon. We disagree.
A defendant's prior convictions may be proved by stipulation of the parties. N.C. Gen.Stat. § 15A–1340.14(f)(1) (2011). Where defense counsel clearly stipulates to a defendant's prior record level and the number of record points assigned, his “prior record level was sufficiently proven.” State v. Renfro, 174 N.C.App. 402, 410, 621 S.E.2d 221, 226 (2005). In addition, a signed stipulation on the prior record level worksheet is also sufficient to establish a defendant's prior record level. State v. Hussey, 194 N.C.App. 516, 523, 669 S.E.2d 864, 868 (2008).
In the instant case, defendant argues that there was “no official stipulation on the record.” However, included in the record on appeal is AOC–CR–600, which is entitled “Worksheet Prior Record Level for Felony Sentencing and Prior Conviction Level for Misdemeanor Sentencing.” Defendant was found to have accumulated six total points and was designated as a prior felony record level III. Defendant's trial counsel signed the prior record level worksheet under the section headed “III. Stipulation[,]” stating: “The prosecutor and defense counsel ... stipulate to the information set out in Sections I and IV, of this form, and agree with the defendant's prior record level ... as set out in Section II based on the information herein.” Defense counsel clearly stipulated to the information contained within the worksheet. Therefore, his prior record level was sufficiently proven.
Defendant attempts to use the prohibition in the habitual felon statute, which indicates that “convictions used to establish a person's status as an habitual felon shall not be used” to determine a defendant's prior record level. N.C. Gen.Stat. § 14–7.6 (2011). In support of this argument, defendant asks this Court to disregard the fact that the legislature does not specifically prohibit use of the previous felony conviction in calculating the prior record level for possession of firearm by a felon convictions, N.C. Gen.Stat. § 14–415.1 (2011), even though the habitual felon statute does. However, the difference between the habitual felon statute and the Felony Firearms Act is a reflection of the fact that they serve fundamentally different purposes. While “[t]he only reason for establishing that an accused is an habitual felon is to enhance the punishment[,]” State v. Allen, 292 N.C. 431, 435, 233 S.E.2d 585, 588 (1977), convicting a person for violating the possession of a firearm by a felon statute punishes that person for an unlawful act. State v. Crump, 178 N.C.App. 717, 722, 632 S.E.2d 233, 236 (2006). Because § 14–415.1 punishes unlawful conduct, rather than a status as § 14–7.6, we deny defendant's request to liken the latter to the former and draw conclusions from the comparison. N.C. Gen.Stat. §§ 14–415.1; 14–7.6 (2011).
V. Sentencing
Defendant argues that the trial court violated the Double Jeopardy clauses of the United States and North Carolina constitutions by sentencing him for robbery with a dangerous weapon and a consolidated judgment for felony breaking and/or entering and felony possession of stolen property arising out of the same criminal transaction. We agree that the trial court erred when sentencing defendant.
As an initial matter, we note that defendant contends that his double jeopardy rights were violated when he was sentenced for both robbery and possession of stolen property. However, as the State correctly notes, these two offenses are separate and do not violate double jeopardy because armed robbery includes the element of the use of a firearm while possession of stolen goods contains no such element. SeeN.C. Gen.Stat. §§ 14–87; 14–71.1 (2011); State v. Etheridge, 319 N.C. 34, 50, 352 S.E.2d 673, 683 (1987).
Defendant relies on State v. Moses in making his argument. 205 N.C.App. 629, 698 S.E.2d 688 (2010). The Moses Court concluded that “the Legislature ... did not intend to subject a defendant to multiple punishments for both robbery and the possession of stolen goods that were the proceeds of the same robbery[.]” Id. at 640, 698 S.E.2d at 696. Therefore, defendant is correct that the holding in Moses regarding improper sentencing is applicable to the instant case. While defendant failed to object at trial, sentencing errors may be reviewed on appeal absent an objection:
Errors based upon any of the following grounds, which are asserted to have occurred, may be the subject of appellate review even though no objection, exception or motion has been made in the trial division ... (18) The sentence imposed was unauthorized at the time imposed, exceeded the maximum authorized by law, was illegally imposed, or is otherwise invalid as a matter of law.
N.C. Gen.Stat. § 15A–1446 (d)(18) (2011). Therefore, we address the merits of defendant's argument.
Even when multiple criminal convictions do not violate a defendant's constitutional rights, the legislature may still ban a dual conviction and punishment by its implied intent. See State v.. Perry, 305 N.C. 225, 236, 287 S.E.2d 810, 816–17 (1982), overruled on other grounds by State v. Mumford, 364 N.C. 394, 402, 699 S.E.2d 911, 916 (2010) (holding that, while larceny and possession of property stolen in that larceny are separate offenses under a constitutional analysis, the legislature did not intend to punish an individual for larceny of property and the possession of the same property which he stole); see also Moses, 205 N.C.App. at 640, 698 S.E.2d at 696 (relying on Perry, holding that a defendant may not be sentenced for both robbery and possession of stolen goods, and arresting judgment on the possession conviction).
In the instant case, defendant received a consolidated sentence within the presumptive range for felony breaking and entering and for possession of stolen goods. He was sentenced separately for RWDW. It has been held that a defendant may not be sentenced for robbery and possession of stolen goods stemming from the theft underlying the robbery charge. See Moses, 205 N.C.App. at 640, 698 S.E.2d at 696. Even though the trial court consolidated the verdicts for breaking and/or entering and possession of stolen goods for sentencing, we are not precluded from arresting judgment. State v. Szucs, 207 N.C.App. 694, 703, 701 S.E.2d 362, 368 (2010) (where the Court arrested judgment for possession of stolen goods when the defendant was convicted of both larceny and possession of stolen property and the trial court consolidated the verdicts). Therefore, we vacate defendant's consolidated sentence for breaking and/or entering and possession of stolen goods and remand for resentencing.
VI. Jury Polling
Defendant contends that the trial court failed to further probe a juror following the juror's equivocal response to the court's questions when the jury was polled after it rendered its guilty verdict. Defendant did not object to the jury polling at trial, and contends that we must review this issue for plain error. We disagree.
“In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N .C.R.App. P. 10(a)(4) (2013); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007). The North Carolina Supreme Court “has elected to review unpreserved issues for plain error when they involve either (1) errors in the judge's instructions to the jury, or (2) rulings on the admissibility of evidence.” State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996).
In the instant case, the claimed error involves the polling of the jury. Thus, despite defendant's claim that the error involves jury instructions, jury polling is not an error in the jury instructions or evidentiary matters. See State v. Osorio, 196 N.C.App. 458, 467, 675 S.E.2d 144, 149 (2009). As such, we cannot review defendant's argument for plain error.
VII. Conclusion
The trial court did not err by admitting testimony regarding DNA evidence or denying defendant's motion to continue because the record does not reflect that defendant made a request or motion for discovery. In addition, the trial court did not err by denying defendant's motion to dismiss the charge of conspiracy to commit RWDW, as the State presented substantial evidence of each element of the crime, and that defendant was the perpetrator. Defendant was properly sentenced as a Level III offender, as he stipulated to this record level prior to sentencing. Furthermore, defendant failed to object during the polling of the jury at trial, and consequently, he waived appellate review of any alleged errors during the jury polling. However, the trial court did err in sentencing defendant for RWDW and possession of stolen goods, and we remand for resentencing.
No error in part; remand in part for resentencing. Judges BRYANT and GEER concur.
Report per Rule 30(e).