Opinion
No. COA09-1289
Filed 4 May 2010 This case not for publication
Appeal by defendant from judgments entered 28 May 2009 by Judge Yvonne M. Evans in Catawba County Superior Court. Heard in the Court of Appeals 10 March 2010.
Attorney General Roy Cooper, by Assistant Attorney General Allison A. Angell, for the State. William D. Auman, for defendant-appellant.
Catawba County Nos. 08 CRS 8544-45.
Cathie Guiffrida Norton ("defendant") appeals judgments entered upon jury verdicts finding her guilty of two counts of felony larceny. We find no error.
I. BACKGROUND
On 6 March 2008, some time after 1:00 a.m., Jonathan Smart ("Smart") called defendant and asked her to drive him to a gas station near the Mike Johnson Toyota dealership ("Mike Johnson Toyota") in Hickory, North Carolina. Smart did not have a driver's license, did not own an automobile, and lived between ten and twelve miles from Mike Johnson Toyota. Although defendant was married to Ray Norton ("Mr. Norton") at the time, she and Smart had a romantic relationship, and Smart was the father of defendant's infant child. Defendant drove Smart to a gas station on Lenoir-Rhyne Boulevard in Hickory. Some time before 5:00 that morning, Smart called defendant and asked her to pick him up on the side of Interstate 40. When defendant returned, Smart had two or three catalytic converters ("converters") with him. Defendant then picked up Smart and the converters.
A few weeks later, at approximately 1:00 a.m. on 27 March 2008, defendant again drove Smart in her vehicle. This time, she dropped him off across the street from the Nissan of Hickory dealership ("Nissan of Hickory"). Smart lived approximately seven to eight miles from Nissan of Hickory. Defendant "knew where they were going." Defendant saw Smart cross the street and head toward Nissan of Hickory with ratchets. At approximately 4:39 a.m., defendant returned and picked up Smart along with two friends, Tonya Hodge ("Hodge") and Tony Frasier ("Frasier"). Defendant saw Smart put two converters in the back of her vehicle. Smart had cut his finger while taking the converters, so defendant drove him to the hospital. At around 5:30 a.m., defendant and Smart left the hospital and took the converters to a boat landing in Dudley Shoals, North Carolina, where Smart hid the converters in a tree. Defendant stated that Smart took the converters because "[h]e just needed money," and Smart "stated that he would give [defendant] a hundred dollars to take him to the Nissan [dealership] to steal the converters." Smart paid defendant $80.00 for her assistance. Defendant then drove to a hotel where she, Smart, Frasier and Hodge spent the night. The total value of the converters taken from Mike Johnson Toyota was approximately $7,000.00, and the total value of the converters taken from Nissan of Hickory was approximately $13,000.00.
On 7 April 2008, Sergeant Phillip Demas ("Sergeant Demas") of the Hickory Police Department ("HPD") received a phone call from an employee of Nissan of Hickory claiming to have information about the missing converters. Sergeant Demas then contacted Nissan of Hickory and as a result, he was given the name of Richard Weaver ("Weaver"). Sergeant Demas subsequently met with Weaver, who stated that Mr. Norton told him that Smart took the converters. Sergeant Demas contacted Mr. Norton, who stated that defendant drove Smart to and from Nissan of Hickory and another automobile dealership in Boone, North Carolina, and that defendant accompanied Smart when he took the converters. Sergeant Demas then interviewed defendant, who stated that she drove Smart to and from Mike Johnson Toyota and Nissan of Hickory and also drove Smart to Dudley Shoals to hide the converters. Defendant stated that she was involved in another theft at an automobile dealership in Boone on 29 March 2008.
Defendant was subsequently arrested and indicted on two counts of felony larceny. The case was heard before a jury during the 25 May 2009 session of Catawba County Superior Court. At the close of the State's evidence and at the close of all the evidence, defendant moved to dismiss the charges and the trial court denied both motions. On 28 May 2009, the jury returned verdicts of guilty on both charges. On each count, the trial court sentenced defendant to a minimum term of five months to a maximum of six months in the custody of the North Carolina Department of Correction, ordered the sentences be served consecutively, and then suspended the sentences, placing defendant on supervised probation for forty-eight months. The trial court also ordered defendant to pay restitution. Defendant appeals.
II. RULE 403
Defendant argues that the trial court erred by overruling her objection to questions regarding the theft in Boone because it was unduly prejudicial under N.C. Gen. Stat. § 8C-1, Rule 403 (2008) ("Rule 403"). We disagree.
Rule 403 states, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." N.C. Gen. Stat. § 8C-1, Rule 403.
Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure provides that "[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context."
State v. Mabrey, 184 N.C. App. 259, 263, 646 S.E.2d 559, 562 (2007) (quoting N.C. R. App. P. 10(b)(1) (2006)). See N.C. Gen. Stat. § 8C-1, Rule 103(a)(1) (2008) (stating that when asserting error regarding a ruling admitting or excluding evidence, "[n]o particular form is required in order to preserve the right to assert the alleged error upon appeal if the motion or objection clearly presented the alleged error to the trial court" (emphasis added)).
In State v. Garcia, the defendant argued that the trial court erred in admitting an officer's testimony because it was impermissible character evidence under N.C. Gen. Stat. § 8C-1, Rule 404(b) ("Rule 404"). 358 N.C. 382, 414, 597 S.E.2d 724, 747 (2004). Our Supreme Court disagreed, stating, "defendant did not raise a Rule 404 objection to the evidence. Likewise, in the absence of a specific objection based on Rule 404, defendant has failed to preserve this matter for review." Id. at 416, 597 S.E.2d at 748 (emphasis added).
In the instant case, during Sergeant Demas' testimony, the following exchange occurred:
Q [The State]: What did — To summarize, what did [defendant] then say about the Nissan dealership in Boone?
[Defendant's counsel]: Objection, Your Honor.
THE COURT: What's the basis?
[Defendant's counsel]: Well, I think it's [Rule] 404, number one. But they're trying to argue other incidents that's [sic] outside the purview of what we're trying here today. We have Nissan and Toyota, but it's not out of Boone.
THE COURT: The objection is overruled. You may answer.
As defendant did not contend before the trial court that such evidence was inadmissible based on Rule 403, this issue has not been preserved for our review. Id. See also State v. Williams, 355 N.C. 501, 565, 565 S.E.2d 609, 646 (2002) (noting that although the defendant objected to certain evidence as inadmissible pursuant to N.C. Gen. Stat. § 8C-1, Rule 608 and as inadmissible hearsay, he did not object on those specific grounds at trial, and thus, the "defendant did not preserve these specific arguments for appellate review."). Accordingly, defendant's objection was insufficient to preserve this issue for appellate review. Defendant's assignment of error is dismissed.
III. Rules 401 and 402
Defendant argues that the trial court erred by sustaining the State's objection to questions regarding an assault warrant taken by defendant against Smart because the testimony corroborated her defense of duress and was relevant under N.C. Gen. Stat. § 8C-1, Rules 401 ("Rule 401") and 402 ("Rule 402") (2008). We disagree.
"[I]n order for a party to preserve for appellate review the exclusion of evidence, the significance of the excluded evidence must be made to appear in the record and a specific offer of proof is required unless the significance of the evidence is obvious from the record." State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985). "[T]he essential content or substance of the witness' testimony must be shown before we can ascertain whether prejudicial error occurred." Id. (citation omitted). When the excluded evidence does not appear in the record, the defendant has not preserved the issue for appeal. State v. Norman, ___ N.C. App. ___, ___, 675 S.E.2d 395, 398 (2009).
In the instant case, during defendant's cross-examination of Sergeant Demas, the following exchange occurred:
Q [Defendant's counsel]: Where did you interview Mr. Smart at?
A [Sergeant Demas]: In the booking area at the police department.
Q: He was in booking because he was arrested for an assault on female warrant, wasn't he?
A: That is correct.
Q: Who took out that warrant?
A: [The defendant].
[The State]: Objection
THE COURT: What's the basis?
[The State]: Relevance, Your Honor.
[Defendant's counsel]: I don't think because he doesn't like the answer he can argue relevance.
THE COURT: I'm going to sustain the objection.
There is nothing in the record showing that defendant made an offer of proof showing the "essential content or substance" of Sergeant Demas' testimony, and the significance of this testimony is not obvious from the record. When no proffer is made in the trial court, "[t]his Court will not speculate as to what the answer would have been or its significance." State v. Howell, 191 N.C. App. 349, 352, 662 S.E.2d 922, 925 (2008) (citation omitted). Therefore, "[t]his issue has not been properly preserved for our review and is dismissed." Id.
IV. MOTION TO DISMISS
Defendant argues that the trial court erred in failing to dismiss the charges against her because the evidence was insufficient as a matter of law. We disagree.
We review a trial court's denial of a motion to dismiss criminal charges de novo, to determine "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." State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). "Substantial evidence is evidence that a reasonable mind might find adequate to support a conclusion." State v. Hargrave, ___ N.C. App. ___, ___, 680 S.E.2d 254, 261 (2009) (citation omitted). "The evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom. . . ." Powell, 299 N.C. at 99, 261 S.E.2d at 117. "[C]ontradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve[.]" State v. Prush, 185 N.C. App. 472, 478, 648 S.E.2d 556, 560 (2007). "In addition, the defendant's evidence should be disregarded unless it is favorable to the State or does not conflict with the State's evidence." State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002) (internal quotations and citation omitted).
"A person who aids or abets another in the commission of a crime is equally guilty with that other person as principal." State v. Noffsinger, 137 N.C. App. 418, 425, 528 S.E.2d 605, 610 (2000) (citation omitted). "A person is guilty of a crime by aiding and abetting if (i) the crime was committed by some other person; (ii) the defendant knowingly advised, instigated, encouraged, procured, or aided the other person to commit that crime; and (iii) the defendant's actions or statements caused or contributed to the commission of the crime by that other person." State v. Goode, 350 N.C. 247, 260, 512 S.E.2d 414, 422 (1999) (citation omitted). "[T]o be guilty [she] must aid or actively encourage the person committing the crime or in some way communicate to this person [her] intention to assist in its commission." Id. (citation omitted). "The communication or intent to aid does not have to be shown by express words of the defendant but may be inferred from [her] actions and from [her] relation to the actual perpetrators." Id. (citation omitted).
In the instant case, defendant was Smart's girlfriend, had dated him for more than a year, and had a child by him. Some time after 1:00 a.m. on 6 March 2008, defendant drove Smart to a gas station on Lenoir-Rhyne Boulevard near Mike Johnson Toyota. Smart did not have a driver's license, did not own an automobile, and lived many miles away from Mike Johnson Toyota. Later that morning, Smart called defendant and asked her to pick him up on the side of Interstate 40. When defendant returned, Smart had two or three converters with him. Defendant then picked up Smart and the converters. Defendant further testified:
Q [The State]: So [Smart] couldn't have — at least at Mike Johnson Hickory Toyota, he couldn't have done it without you because he couldn't haul those converters back, could he, without a car or a vehicle?
A [Defendant]: No, sir.
Q: So he couldn't have done it without you at Mike Johnson Hickory Toyota?
A: No, sir.
At approximately 1:00 a.m. on 27 March 2008, defendant again drove Smart in her vehicle. This time she dropped him off across the street from Nissan of Hickory. Defendant "knew where they were going." Defendant saw Smart cross the street toward Nissan of Hickory with the ratchets. At approximately 4:39 a.m., defendant returned and picked up Smart along with Frasier and Hodge. When defendant picked up the three individuals, she saw Smart put two converters in the back of the vehicle. Defendant took Smart and the converters to a remote location, where Smart hid them in a tree. Defendant knew Smart took the converters because "[h]e just needed money," and Smart "stated that he would give [defendant] a hundred dollars to take him to the Nissan [dealership] to steal the converters." Smart paid defendant $80.00 for her help in taking the converters.
Defendant testified as follows:
Q [The State]: And along the same lines. The theft that occurred at Nissan of Hickory, again, because it was so many miles away from [Smart's] residence, the weight of the objects, the fact that it needed to be done surreptitiously at night, he couldn't have done it without you either because he needed someone to drive him away; is that right?
A [Defendant]: Yes, sir.
Viewed in the light most favorable to the State, the evidence tends to show: (1) that Smart committed the crime of felony larceny on two occasions; (2) that defendant "knowingly advised, instigated, encouraged, procured, or aided" Smart in the commission of the crimes; and (3) defendant's "actions or statements caused or contributed to the commission of the crime" by Smart. Goode, 350 N.C. at 260, 512 S.E.2d at 422. Based on defendant's actions and her relation to Smart, the jury could infer that defendant communicated or intended to aid Smart in the commission of the crimes of felony larceny. See id. Substantial evidence existed to submit the two counts of felony larceny to the jury. Defendant's assignment of error is overruled.
V. CONCLUSION
Defendant received a fair trial free from error.
No error.
Judges HUNTER, Robert C. and HUNTER, JR., Robert N. concur.
Report per Rule 30(e).