Opinion
No. COA12–1086.
2013-03-19
STATE of North Carolina v. Caleb Josiah HAIRE.
Attorney General Roy Cooper by Assistant Attorney General Charles G. Whitehead for the State. Appellate Defender Staples S. Hughes by Assistant Appellate Defender Paul M. Green for defendant-appellant.
Appeal by defendant from judgment entered 30 September 2011 by Judge Joseph E. Turner in Moore County Superior Court. Heard in the Court of Appeals 27 February 2013. Attorney General Roy Cooper by Assistant Attorney General Charles G. Whitehead for the State. Appellate Defender Staples S. Hughes by Assistant Appellate Defender Paul M. Green for defendant-appellant.
STEELMAN, Judge.
The trial court did not abuse its discretion in denying defendant's motion for a mistrial when a witness for the State testified she knew defendant from “previous incarceration periods.” Where property was taken from a Days Inn and a Days Inn employee as a result of a single act of threatened force, the trial court erred in not dismissing one of the robbery counts.
I. Factual and Procedural Background
On 15 May 2010, the Southern Pines Police Department responded to a 911 call reporting a robbery at the Days Inn in Southern Pines. Sandra Greene (Greene) was working behind the lobby counter and Michael Mahaley (Mahaley) was volunteering as a bartender. Three assailants burst into the lobby carrying handguns. One assailant leapt over the lobby counter, placed a gun to Greene's head, and demanded money. Greene opened the cash drawer, and the robber took $300.00 in cash. She was also robbed of her purse. Another robber pointed a gun at Mahaley's head, struck him with the gun several times, and took cash and a cell phone from him. Greene was able to identify areas on the lobby counter that the robber had touched when he jumped over the counter. Palm prints, shoe prints, and fingerprints from that area were found. When police ran the prints through the Automated Fingerprint Identification System, Caleb Josiah Haire (defendant) was identified as a possible match. Defendant's left palm print matched the left palm print found on a portion of the lobby counter.
Defendant was indicted for three counts of robbery with a firearm, one for the robbery of the Days Inn, one for the robbery of Greene, and one for the robbery of Mahaley. On 30 September 2011, the jury found defendant guilty of all three charges. The trial court consolidated the charges for judgment and imposed one active sentence of 60 to 81 months.
Defendant appeals.
II. Mistrial
In his first argument on appeal, defendant contends that the trial court abused its discretion by refusing to declare a mistrial after a witness for the State referred to defendant's “previous incarceration periods” in her testimony. We disagree.
A. Standard of Review
The decision to grant a mistrial is a matter that rests in the sound discretion of the trial judge and is appropriate only when there are such serious defects or errors in the proceeding that it would make it impossible to receive a fair and impartial verdict under the law. State v. Calloway, 305 N.C. 747, 754, 291 S.E.2d 622, 627 (1982). Consequently, a trial court's decision will not be disturbed on appeal absent a showing of abuse of discretion. State v. Williamson, 333 N.C. 128, 138, 423 S.E.2d 766, 772 (1992) “The decision of the trial judge is entitled to great deference since he is in a far better position than an appellate court to determine whether the degree of influence on the jury was irreparable.” Id.
B. Analysis
“The general rule is that in a prosecution for a particular crime, the State cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense.” State v. McClain, 240 N.C. 171, 173, 81 S.E.2d 364, 365 (1954). When such evidence is admitted, thereafter withdrawn, and causes substantial and irreparable prejudice, a trial court should grant a mistrial. E.g., State v. Aycoth, 270 N.C. 270, 272–73, 154 S.E.2d 59, 60–61 (1967) (holding it was an abuse of discretion when the trial court failed to grant a mistrial after the State's witness, when asked to identify the owner of the car, testified the defendant had previously been indicted for murder); State v. Foster, 27 N.C.App. 531, 533–34, 219 S.E.2d 535, 537 (1975) (holding a mistrial should have been granted when a co-defendant testified that he and the defendant were previously convicted of armed robbery). “Where the trial court has instructed the jury not to consider improper testimony, and where ... there is ample competent evidence from which the jury could find defendant guilty, a mistrial is not warranted.” State v. Carnes, 18 N.C.App. 19, 22, 195 S.E.2d 588, 591 (1973). Further, our Courts have held that testimony concerning fingerprint cards necessarily suggests that the defendant has had some previous contact with law enforcement. E.g., State v. Jackson, 284 N.C. 321, 333, 200 S.E .2d 626, 634 (1973). Where an officer testified that fingerprint identification cards are printed when someone is arrested on a serious misdemeanor charge, this Court found no prejudicial error. State v. McKnight, 87 N.C.App. 458, 460–61, 361 S.E.2d 429, 431–32 (1987).
In the instant case, defendant made a motion in limine to redact extraneous information from any fingerprint cards introduced and omit the fact that defendant had three cards on file with the sheriff. The issue was resolved by the State agreeing to refer to only one fingerprint card, redact the date of arrest on the card, and omit any information about multiple cards being on file. In laying the foundation for the entry of the fingerprint card into evidence, the State elicited testimony from Shannon Garner (Garner) that she took defendant's fingerprints on 12 August 2009. At the time the State questioned Garner about the date, defendant did not object and in fact, defendant elicited that date from Garner on cross-examination. Garner further testified on cross-examination that she had “no independent recollection of what was going on around [her]” at the time she processed defendant's prints. On redirect, the State asked Garner if she knew defendant and she responded, “just from previous incarceration periods.” Defendant objected and his motion to strike was allowed. Defendant moved for a mistrial outside the presence of the jury.
The trial court stated that while Garner's testimony was regrettable, it was not so significant as to merit a mistrial. After reviewing the record in the instant case, we agree. The State's purpose in offering the fingerprint card was to identify fingerprints taken from defendant. The State did not solicit information concerning the underlying charges that led to the fingerprinting of defendant and did not mention the number of times that defendant's fingerprints had been taken. The mere presence of the fingerprint card necessarily suggested to the jury that defendant had some previous contact with law enforcement, Jackson, 284 N.C. at 333, 200 S.E.2d at 634, and Garner's reference to defendant's “previous incarceration periods,” did not add additional detail to that existing inference. We hold her statement is analogous to the statement in McKnight that fingerprints are taken for serious misdemeanor charges. McKnight, 87 N.C.App. at 460–61, 361 S.E.2d at 431–32. Although the State should have exercised greater care in asking an open-ended question, this testimony, which was ordered stricken by the trial court, did not constitute irreparable prejudice. Further, there was ample competent evidence from which the jury could find defendant guilty: Greene was meticulous about keeping the counter area at the hotel clean; Greene had cleaned the counter area in the afternoon on the day of the attack; one robber leapt over the lower section of the counter top; Greene told officers where the robber had placed his hand; and the palm print found on the counter matched defendant's palm print. The trial court did not abuse its discretion in denying defendant's motion for mistrial.
This argument is without merit.
III. Motion to Dismiss
In defendant's second argument, he contends that the “evidence was insufficient as a matter of law to prove more than two counts of robbery.” We agree.
A. Standard of Review
We review a trial court's denial of a motion to dismiss de novo. State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). “[I]n reviewing the denial of a motion to dismiss, we must examine the evidence adduced at trial in the light most favorable to the State to determine if there is substantial evidence of every essential element of the crime.” State v. McKinnon, 306 N.C. 288, 298, 293 S.E.2d 118, 125 (1982).
B. Analysis
In order to sustain convictions for multiple offenses arising out of the same criminal incident, each charge must rest on different necessary elements. State v. Beaty, 306 N.C. 491, 496, 293 S.E.2d 760, 764 (1982)overruled on other grounds, State v. White, 322 N.C. 506, 369 S.E.2d 813 (1988). “The gravamen of the offense [of armed robbery] is the endangering or threatening of human life by the use or threatened use of firearms or other dangerous weapons ....“ Id. at 499,293 S.E.2d at 766 (quoting State v. Ballard, 280 N.C. 479, 480, 186 S.E.2d 372, 375 (1972)). When an employee is threatened by force incident to a perpetrator taking property from both an employee and the employer, only one offense of armed robbery has occurred because there has been only one assault. Beaty, 306 N.C. at 499–500, 293 S.E.2d at 764;see also State v. Suggs, 86 N.C.App. 588, 596, 359 S.E.2d 24, 29 (1987) (arresting judgment as to one of the three indictments of armed robbery when money was taken from three sources, the store and two employees, but only two assaults had occurred); State v. Bellamy, 172 N.C.App. 649, 653, 617 S.E.2d 81, 85–86 (2005) (“The robbery of an individual of her own property and the property of her employer, occurring at the same time, constitutes only one offense of robbery with a dangerous weapon.”).
In the instant case, the State concedes that the facts of this case are indistinguishable from Suggs. The items taken from the Days Inn and Greene were a result of a single act of threatened force against Greene. Judgment must be arrested as to one of those two convictions.
Consolidation of the convictions for judgment does not resolve this error. State v. Barnett, 113 N.C.App. 69, 78, 437 S.E.2d 711, 717 (1993). Judgment is hereby arrested as to Count II of the indictment, and this matter is remanded to the trial court for resentencing as to the remaining two counts of robbery with a firearm.
NO ERROR IN PART, JUDGMENT ARRESTED IN PART, AND REMANDED FOR RE–SENTENCING. Judges GEER and HUNTER, JR., ROBERT N. concur.
Report per Rule 30(e).