Opinion
No. COA11–1021.
2012-05-15
STATE of North Carolina v. Michael Lee HALL, Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General Kay Linn Miller Hobart, for the State. Russell J. Hollers, III for defendant-appellant.
Appeal by defendant from judgment entered 25 February 2011 by Judge Robert H. Hobgood in Durham County Superior Court. Heard in the Court of Appeals 20 February 2012. Attorney General Roy Cooper, by Special Deputy Attorney General Kay Linn Miller Hobart, for the State. Russell J. Hollers, III for defendant-appellant.
HUNTER, ROBERT C., Judge.
Michael Lee Hall (“defendant”) appeals three of eight convictions for attempted robbery and one conviction for misdemeanor assault with a deadly weapon in the presence of a minor. Defendant argues the trial court erred in denying his motions to dismiss the charges of attempted robbery for insufficient evidence as to four of the alleged victims. Defendant also argues the trial court erred by not giving him credit for the days he spent in jail awaiting trial. After careful review, we find no error in the denial of defendant's motions to dismiss but we remand for correction of a clerical error in the judgments.
Background
The evidence at trial tended to establish the following facts: On 1 June 2010, defendant and Lemuel Sherman (“Sherman”), broke into the house of Claudia Carolina Jimenez Cruz (“Claudia”) in Durham, wearing masks, brandishing guns, and claiming to be police officers. Claudia had several family members living with her who were in the house on the night of the break-in: her father, Luis Jimenez Coronado; her mother, Noriberta Cruz Saucedo; her sister, Cirila Jimenez Cruz; her brother-in-law, Miguel Angel Rivera; her nephews, J.J. and M.J.; her niece, E.J.; her brother, Luis Gerardo Jimenez Cruz; her sister-in-law, Rocio Yaneth Castellio; her brother, Pedro Eduardo Jimenez Cruz and her half-brother, L.G.
Initials are used for victims who were minors at the time of the break-in.
Claudia was sleeping in the living room of the house along with her brother, Pedro, nephew, M.J., and half-brother, L.G. Upon entering the living room, defendant pointed a gun at Pedro's head and told him not to move while Sherman moved down the hallway towards the house's three bedrooms.
Claudia's sister, Cirila, was sleeping in one of the bedrooms along with her husband, Miguel Angel Rivera and her two children, J.J. and E.J. After hearing screaming, Cirila opened her bedroom door and saw Sherman dressed in black and brandishing a gun. Sherman pushed Cirila into the bedroom and pointed his gun at her and her daughter. Cirila's father, Luis Jimenez Coronado, left his wife, Noriberta, in their bedroom and entered Cirila's bedroom where he was struck by Sherman and knocked to the floor.
Hearing the commotion, Claudia's brother, Luis Cruz, opened his bedroom door and saw Sherman pointing a gun at Cirila's head. Luis Cruz closed the door to his bedroom, retrieved his pistol, and loaded it with two bullets. Luis reopened his bedroom door and saw his father being beaten by Sherman. When Sherman pointed his pistol at Luis Cruz, Luis shot and killed Sherman.
Defendant, still in the living room, fired two or three shots down the hallway in the direction of the three bedrooms. Cirila, her husband, and their two children were in the first bedroom. Noriberta was in the second bedroom. Luis Cruz's wife, Rocio, was in the third bedroom.
After firing his gun, defendant ran out of the house. Shortly thereafter, defendant's car was stopped by the police. Defendant attempted to flee, but was arrested. Defendant's car contained a pistol, gloves, and a mask.
At trial, defendant made two motions to dismiss: one after the close of the State's evidence and one after the close of all the evidence. Both motions were denied. The jury found defendant guilty of: first degree burglary; eight counts of attempted robbery with a dangerous weapon; one count of misdemeanor assault with a deadly weapon in the presence of a minor; and one count of conspiracy to commit robbery with a dangerous weapon. The trial court sentenced defendant to a term of imprisonment of 747 to 981 months, plus 75 days. Defendant gave timely notice of appeal.
Discussion
Defendant argues the trial court erred in denying his motion to dismiss due to insufficient evidence regarding four of the charges for attempted robbery with a dangerous weapon. We find no error.
We review the 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). When a defendant makes a motion to dismiss for insufficient evidence “the question for the Court is whether 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. If so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455,cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000). “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). “In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied,515 U.S. 1135, 132 L.Ed.2d 818 (1995).
An attempted robbery with a dangerous weapon in violation of N.C. Gen.Stat. § 14–87 “occurs when a person, with the specific intent to unlawfully deprive another of personal property by endangering or threatening his life with a dangerous weapon, does some overt act calculated to bring about this result.” State v. Allison, 319 N.C. 92, 96, 352 S.E.2d 420, 423 (1987); N.C. Gen.Stat. § 14–87 (2011). Defendant concedes the State's evidence was sufficient to support his conviction for armed robbery with a dangerous weapon for the five victims who testified. The question presented is whether there was sufficient evidence regarding the four victims who did not testify: Miguel Angel Rivera, Rocio Yaneth Castellio, Noriberta Cruz Saucedo, and L.G. We conclude the State's evidence was sufficient to withstand defendant's motion to dismiss.
Defendant first argues that since no property was taken from the home a key element of attempted robbery could not be satisfied. However, this argument ignores the language of N.C. Gen.Stat. § 14–87 (2011) defining robbery with a dangerous weapon as including “ attempts to take personal property from another[.]” (Emphasis added.). Additionally, in State v. Davis, 340 N.C. 1, 13, 455 S.E.2d 627, 633,cert. denied,516 U.S. 846, 133 L.Ed.2d 83 (1995), our Supreme Court rejected a similar argument concluding that drawing guns and threatening a victim without an explicit demand for money or valuables was sufficient evidence of attempted armed robbery. Furthermore, that ownership of the property intended to be taken was not established in a particular victim is irrelevant. See State v. Pratt, 306 N.C. 673, 681, 295 S.E.2d 462, 467 (1982) (“As long as it can be shown defendant was not taking his own property, ownership need not be laid in a particular person to allege and prove robbery.”). All four of the non-testifying victims lived in the house, as did the five victims who testified. It is apparent that defendant was not attempting to take his own property when he broke into the victims' home. This argument is overruled.
Next, defendant argues that the charges should have been dismissed because there was no evidence that the four non-testifying victims were assaulted or threatened. We disagree.
In considering defendant's motion to dismiss the charges of attempted armed robbery with a dangerous weapon, the determinative issue as to each victim is whether the victim's life “was in fact endangered or threatened by defendant's possession, use or threatened use of the [weapon], not whether [the victim] was scared or in fear of (his) life.” State v. Moore, 279 N.C. 455, 459, 183 S.E.2d 546, 548 (1971) (internal quotation marks omitted). Furthermore, when a defendant uses a dangerous weapon to commit the crime of armed robbery there is a “mandatory presumption that the victim's life was in fact endangered or threatened.” State v.. Wiggins, 78 N.C.App. 405, 408, 337 S.E.2d 198, 199–200 (1985).
Here, defendant fired a gun in the direction of three of the four non-testifying victims, while the fourth non-testifying victim, L.G., was in the same room with defendant as he fired the gun. In State v. Thomas, 85 N.C.App. 319, 321–22, 354 S.E.2d 891, 893 (1987), this Court rejected a similar argument that while the defendant robbed one victim at gunpoint there was no evidence that he threatened the victim's wife who was standing close by; the defendant did not point the gun at the wife or speak to her during the robbery. Although the defendant argued the charge of robbery of the wife with a dangerous weapon should have been dismissed, we concluded the “[d]efendant's assault of [the husband] in order to take his property spoke louder than any words of threat could have spoken to [the wife]” and the trial court properly denied the defendant's motion to dismiss the charge. Id.
Additionally, defendant argues there was no testimony to establish that L.G. saw defendant point the gun at him. However, such testimony is not necessary. See State v. Lee, 128 N.C.App. 506, 510, 495 S.E.2d 373, 376 (stating that for an armed robbery conviction “[t]he State need only prove that the defendant represented that he had a firearm and that circumstances led the victim reasonably to believe that the defendant had a firearm and might use it”), appeal dismissed and disc. review denied,––– N .C. ––––, 505 S.E.2d 883 (1998). Thus, there is sufficient evidence from which a reasonable trier of fact could find beyond a reasonable doubt that the life of L.G., as well as every individual inside the house, was in fact in danger or threatened by the actions of defendant. We conclude the State presented substantial evidence of each essential element of the crimes charged as to all victims and the trial court did not err in denying defendant's motions to dismiss.
Lastly, defendant argues, and the State agrees, the trial court erred by not crediting him with time served in custody as he awaited trial as required by N.C. Gen.Stat. § 15–196.1 (2011) (“The minimum and maximum term of a sentence shall be credited with and diminished by the total amount of time a defendant has spent, committed to or in confinement ... as a result of the charge that culminated in the sentence.”). We agree.
It is universally recognized that a court of record has the inherent power and duty to make its records speak the truth. It has the power to amend its records, correct the mistakes of its clerk or other officers of the court, or to supply defects or omissions in the record, and no lapse of time will debar the court of the power to discharge this duty.
State v. Cannon, 244 N.C. 399, 403, 94 S.E.2d 339, 342 (1956).
Here, the trial court stated in open court that “defendant receives credit day for day for time served in custody, awaiting trial.” However, the written judgment does not reflect credit for defendant's time served awaiting trial. In State v. Jarman, 140 N.C.App. 198, 203, 535 S.E.2d 875, 879 (2000), this Court held that a trial court may correct a judgment with respect to time served as a “clerical error” when it is apparent the alleged mistake was not the result of judicial discretion or reasoning. Here, as it is apparent from the transcript that the trial court intended to credit defendant for his time served awaiting trial and did not do so, we remanded to the trial court for correction of this clerical error.
Conclusion
In summary, we conclude the trial court did not err in denying defendant's motions to dismiss. However, the trial court erred in failing to give defendant credit for time served. We remand for correction of the clerical error.
No error, in part, remanded for correction of clerical error, in part. Chief Judge MARTIN and Judge STEPHENS concur.
Report per Rule 30(e).