Opinion
No. COA02-1555
Filed 7 October 2003 This case not for publication
Appeal by defendant from judgments entered 17 May 2002 by Judge Thomas D. Haigwood in Cleveland County Superior Court. Heard in the Court of Appeals 16 September 2003.
Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O'Brien, for the State. Carlton, Rhodes Carlton, by Gary C. Rhodes, for defendant — appellant.
Cleveland County Nos. 01 CRS 053720; 01 CRS 053721; 01 CRS 053722; 02 CRS 000077.
Marty Lee Rorie ("Defendant") appeals from a jury's verdict convicting him of robbery with a firearm, felonious breaking and entering, second-degree kidnapping, and felony operation of a motor vehicle to elude arrest. The jury also found defendant guilty of being an habitual felon.
I. Background
The State's evidence tended to show that on 20 July 2001, between 7 and 8 p.m., Nancy Evans ("Evans") was working in the youth director's office at the Lafayette Street United Methodist Church in Shelby, North Carolina. She heard someone enter the building, looked up, and saw defendant and another black male, later identified as Michael Sibley ("Sibley"), enter the office. Defendant held a gun in his hand. Evans instinctively moved toward the floor when defendant led her back up and demanded her money and car keys. Evans told him that her keys and money were located outside in her car. Sibley searched through the drawers and stole the church's night deposit bag. He left the building while defendant led Evans down the hall to the parlor, holding a gun to her back. Defendant demanded Evans to surrender her gold necklace and she complied. Defendant ordered Evans to lie on the floor while he searched through the drawers. He took Evans back to the office and tied her hands behind her back with a cell phone cord. Defendant left the building. Evans freed her hands and went outside. As the car drove away, she saw defendant in the passenger seat of her Blazer. Evans called 911 and gave the dispatcher a description of her car and the license plate number.
A police officer arrived on the scene and dispatched a radio lookout for Evans' burgundy 1999 Chevrolet Blazer. Cleveland County Sheriff's Deputy Christopher Hutchins ("Deputy Hutchins") spotted the Blazer about an hour later. He matched the license plate number with the number from the radio dispatch. Deputy Hutchins engaged his blue lights and tried to initiate a stop. The Blazer increased speed, weaving in and out of traffic. The Blazer drove over the median to pass cars at a stoplight, drove through a red light, and accelerated to about 85 to 90 m.p.h. in a 55 m.p.h. zone. A North Carolina Highway Patrol trooper assumed primary pursuit and followed the Blazer for several more miles. Cleveland County deputies deployed spike strips to stop the fleeing Blazer. To avoid the spike strips, the Blazer swerved into the median, which caused the car to travel on two wheels and to almost flip over. When the car came to a stop, the driver jumped out and fled into the woods on foot. The passenger, Sibley, was shaken up by the vehicle nearly overturning and was apprehended in the car.
A canine unit from the Cleveland County Sheriff's Department arrived on the scene and searched the area. Officers followed a trampled path and found defendant at the end of the path. Defendant jumped up as if he was going to run. When the canine pursued him, defendant stopped and laid back down on the ground. Defendant was arrested and transported to the police station.
Upon arrival, officers photographed defendant for evidentiary purposes. Defendant was wearing a green pullover jersey with patches indicating "Women's Softball Champion," along with the team name "Lady Drillers," and the number "7." Evans, the victim, had told police that her Blazer contained several items when it was stolen, including a green softball jersey with "Lady Drillers" written on it. As officers removed the jersey from defendant, a .38 caliber bullet fell onto the floor.
When Evans arrived at the police station, she could not identify with certainty who had held a gun to her at the church. At the probable cause hearing in August, Evans positively identified defendant as the man who held the gun to her. Evans identified defendant again at trial.
Sibley testified for the State in exchange for a plea to lesser offenses. He testified that he and defendant went to a "boarding house" named the Toll House in Charlotte on 20 July 2001 to rent a Mitsubishi. While at the Toll House, Sibley heard a shot, ran around the corner, and observed defendant standing there. Sibley, defendant, and another man left in the Mitsubishi heading away from Charlotte. Upon arriving in Shelby, the men heard a radio report of a shooting at the Toll House. The men abandoned the car and entered into some woods. After Sibley and defendant saw a Blazer parked by a church, they went inside the church. Defendant put a gun to a lady's head and told Sibley to go get the Blazer. Sibley started the car and waited on defendant. Defendant got in the car and said, "Let's go, let's go." He was directing Sibley where to drive and kept "hollering," so Sibley told defendant to drive. The two men switched places. After about twenty minutes, the men stopped and bought snacks with money from the Blazer's glove compartment. The men resumed driving after about thirty minutes when a police car got behind them and turned on its blue lights.
Defendant did not present any evidence. The jury convicted defendant on all charges. Defendant appealed.
II. Issues
Defendant contends the trial court erred by: (1) denying his motion to suppress evidence based on his unlawful arrest; (2) denying his motion to suppress identification testimony; (3) failing to declare a mistrial ex mero motu based upon the testimony of a co-defendant that defendant had been charged with murder in another county; (4) excusing Juror No. 12 and replacing him with an alternative juror; (5) failing to dismiss all charges against defendant at the close of the State's evidence based on insufficiency of the evidence; and (6) imposing enhanced habitual offender sentences for each underlying felony based upon one habitual felon indictment.
III. Motion to Suppress Evidence
Defendant assigns as error the trial court's denial of his motion to suppress evidence and asserts no probable cause existed to arrest him. "Police officers may arrest without a warrant any person who they have probable cause to believe has committed a felony." State v. Hunter, 299 N.C. 29, 34, 261 S.E.2d 189, 193 (1980). Probable cause is "a suspicion produced by such facts as to indicate a fair probability that the person seized has engaged in or is engaged in criminal activity." State v. Schiffer, 132 N.C. App. 22, 26, 510 S.E.2d 165, 167 (1999). Defendant does not contest the trial court's findings of fact made after hearing on defendant's motion to suppress. Our review is limited to whether the trial court's findings of fact support its conclusions of law. State v. Cheek, 351 N.C. 48, 63, 520 S.E.2d 545, 554 (1999).
Here, arresting officers received a dispatch to be on the lookout for a stolen burgundy Blazer bearing a specific license plate. When police spotted the Blazer with a matching license plate and attempted to stop the vehicle, the driver led them on a high-speed chase, violating numerous traffic laws. Once the Blazer stopped, the driver jumped out wearing a green shirt or jacket and ran off the highway into the woods. The officers found defendant lying in thick kudzu and identified him as the driver who had earlier jumped out of the Blazer. These findings of fact support the trial court's conclusions of law that deputies had probable cause to arrest defendant. The motion to suppress was properly denied. This assignment of error is overruled.
IV. Motion to Suppress Identification Testimony
"In determining whether out-of-court identification procedures are impermissibly suggestive, the trial judge must evaluate several factors." State v. McGuire, 49 N.C. App. 70, 73, 270 S.E.2d 526, 529 (1980). The court must then determine "whether under the totality of the circumstances the out-of-court procedures were so impermissibly suggestive and conducive to irreparable mistaken identification as to be a denial of due process." Id. We have held that:
it is not error to admit the in-court identification of defendant as the perpetrator of the crime by the witness, when the record discloses that the out-of-court identifications are not impermissibly suggestive, and the in-court identification is of independent origin and based solely on what the witness observed during the commission of the crime.
Id. at 74, 270 S.E.2d at 529. The trial court's findings and conclusions are binding on appeal if the record contains evidence supporting its findings and conclusions. Id. at 73, 270 S.E.2d at 529.
Defendant moved to suppress evidence of any in-court identification that Evans might make during trial. The court received evidence on voir dire and denied defendant's motion. The court found by "clear and convincing evidence" that Evans had ample opportunity during the commission of the crime to view the accused. Evans was presented with a photo array of suspects and identified defendant as the perpetrator, with some uncertainty. No suggestive statements were made by law enforcement before or during the identification procedures. A hearing was later held where Evans immediately recognized and identified defendant upon seeing him in person. The record supports the trial court's findings of fact and conclusions that Evans' identification of defendant was admissible before the jury. This assignment of error is overruled.
V. Failure to Declare a Mistrial
Defendant argues the court erred by not declaring a mistrial on its own motion when Sibley, a co-defendant, testified and revealed that defendant had been charged with murder in another county. Sibley testified against defendant pursuant to a plea agreement with the State. In an attempt to reveal this to the jury, defendant's counsel asked Sibley:
Q. Did it also provide that, in addition, you will be required to testify truthfully against your co-defendant with regard to any charges that are brought against your co-defendant for murder in Mecklenburg County with an offense date of July 21, 2001?
A. Yes, Sir.
Defendant subsequently informed his counsel of his objection to the question. Defendant's counsel requested the court for a curative instruction. The court asked defense counsel to confer with defendant and to draw up exactly what they desired the court to instruct. The court instructed the jury in accordance with the defendant's request. Defendant did not request a mistrial.
We have held that when "defendant failed to request a mistrial from the trial court, our review is limited to whether the court's failure to declare a mistrial constituted `plain error.'" State v. Hinton, 155 N.C. App. 561, 564, 573 S.E.2d 608, 612 (2002). If defendant fails to allege plain error in his assignments of error, he fails to preserve the issue for appeal. Id. Defendant failed to allege plain error and has not preserved this issue for appeal. We do not address defendant's third assignment of error.
VI. Substitution of an Alternate Juror
The trial court has discretion to "excuse a juror and substitute an alternate at any time before final submission of the case to the jury panel." State v. Nelson, 298 N.C. 573, 593, 260 S.E.2d 629, 644 (1979). "These kinds of decisions relating to the competency and service of jurors are not reviewable on appeal absent a showing of abuse of discretion, or some imputed legal error." Id.
After defendant's trial had begun, defendant's mother was observed speaking with Juror No. 12, who was wearing his juror's badge. The court examined both the juror and defendant's mother. Despite the court's repeated instructions to not speak to anyone involved in the case, both admitted to speaking to each other outside the courtroom about the location of the nearest restaurant. The court did not abuse its discretion in disqualifying Juror No. 12 and replacing him with an alternate. This assignment of error is overruled.
VII. Motion to Dismiss
In ruling on a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State and give the State every reasonable inference to be drawn from the facts and evidence presented. State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998). The State must present substantial evidence of each element of the offense charged. Id.
"The trial court should consider all evidence actually admitted, whether competent or not, that is favorable to the State." State v. Jones, 342 N.C. 523, 540, 467 S.E.2d 12, 23 (1996). "If 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. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988). Substantial evidence is defined as "relevant evidence which a reasonable mind could accept as adequate to support a conclusion." Lee, 348 N.C. at 488, 501 S.E.2d at 343. "The evidence need only give rise to a reasonable inference of guilt for the case to be properly submitted to the jury." State v. Barnett, 141 N.C. App. 378, 383, 540 S.E.2d 423, 427 (2000), aff'd, 354 N.C. 350, 554 S.E.2d 644 (2001).
A. Robbery with a Firearm
Robbery is: "(1) the unlawful taking or attempt to take personal property from the person or in the presence of another; (2) by use or threatened use of a firearm or other dangerous weapon; [and] (3) whereby the life of a person is endangered or threatened." State v. Wiggins, 334 N.C. 18, 35, 431 S.E.2d 755, 765 (1993); N.C. Gen. Stat. § 14-87(a) (2001). Defendant argues that the indictment for robbery with a dangerous weapon was fatally defective because the indictment failed to name the person from whom the property was taken. We disagree.
Our Supreme Court has repeatedly held that:
it is not necessary that ownership of the property be laid in a particular person in order to allege and prove armed robbery. . . . An indictment for robbery will not fail if the description of the property is sufficient to show it to be the subject of robbery and negates the idea that the accused was taking his own property.
State v. Jackson, 306 N.C. 642, 654, 295 S.E.2d 383, 390 (1982) (quoting State v. Spillars, 280 N.C. 341, 345, 185 S.E.2d 881, 884 (1972)). An indictment will be sufficient if it includes allegations that the victim's life was threatened with the weapon and puts defendant on notice of the substance of the offense. State v. Rankin, 55 N.C. App. 478, 285 S.E.2d 119, appeal dismissed and disc. review denied, 305 N.C. 590, 292 S.E.2d 11 (1982). "A bill is sufficient in form for all purposes if it expresses the charge in a plain, intelligible and explicit manner. . . ." Id.
Here, defendant assigns as error the blank line on the indictment after "from the presence, person, place of business, and residence, and residence of." The indictment does allege that defendant did "steal, take and carry away . . . another's personal property." Following this, the indictment lists "one radio, one necklace and a 1999 Chevrolet Blazer." The indictment identified Evans as the person whose life was endangered and threatened. The indictment put defendant on notice of the substance of the offense, showed the subject of robbery, and negated any idea that the accused was taking his own property. The trial court properly denied defendant's motion to dismiss based on the indictment. This assignment of error is overruled.
B. Felonious Breaking or Entering
A defendant commits felonious breaking or entering where he: (1) breaks or enters, (2) any building, (3) with the intent to commit any felony or larceny therein. State v. Gray, 322 N.C. 457, 461, 368 S.E.2d 627, 629 (1988); N.C. Gen. Stat. § 14-54(a) (2001). Defendant contends the State did not produce sufficient evidence regarding his intent to commit a felony when he entered the church. We disagree.
We have held that intent may be inferred from the circumstances when the defendant has not offered any exculpatory evidence regarding his intent. State v. Roberts, 135 N.C. App. 690, 696, 522 S.E.2d 130, 134 (1999), appeal dismissed and disc. review denied, 351 N.C. 367, 543 S.E.2d 142 (2000). "Evidence of what a defendant does after he breaks and enters a house is evidence of his intent at the time of the breaking and entering." Gray, 322 N.C. at 461, 368 S.E.2d at 629. The State's evidence tended to show that defendant entered the church office and pointed a gun at Evans. He demanded money and car keys. Defendant took items from the church and fled in Evans' car. The State produced sufficient evidence such that a reasonable juror could infer defendant's intent upon entering the building. This assignment of error is overruled.
C. Second-Degree Kidnapping
A person is guilty of second-degree kidnapping when he: (1) confines or restrains or removes from one place to another, (2) a person, (3) without that person's consent, and (4) for the purpose of facilitating the commission of a felony or facilitating flight following the commission of a felony. N.C. Gen. Stat. § 14-39 (2001). Defendant argues the State did not produce evidence of both the first element, "restraint and removal," and the fourth element, "for the purpose of facilitating a felony." We disagree.
Evidence that shows defendant increased a victim's helplessness and vulnerability beyond what was necessary to enable the robbery constitutes sufficient evidence to satisfy the restraint element under N.C. Gen. Stat. § 14-39(a). State v. Beatty, 347 N.C. 555, 559, 495 S.E.2d 367, 369 (1998). Our courts have sustained kidnapping convictions where the defendant bound the victim's hands. Id.; see also State v. Pigott, 331 N.C. 199, 415 S.E.2d 555 (1992).
The State's evidence tended to show that defendant pulled Evans up from the floor, held a gun to her head, and restrained her with one arm. While restraining her, defendant demanded money and car keys and Sibley searched through drawers looking for things to steal. Still restraining Evans, defendant moved her out of the office, down the hallway, and into the parlor. Defendant looked for money and other items to steal. Defendant took Evans back to the office, while continuing to point the gun at her. Defendant forced Evans to lie on the floor and tied her hands with a cord. Defendant and Sibley fled in Evans' stolen Blazer.
The State's evidence tended to show that defendant restrained Evans for the purpose of committing armed robbery and larceny. The restraint used in binding Evans' hands was more than that necessary to accomplish the robbery. Id. The State produced sufficient evidence to withstand defendant's motion to dismiss the charge of second-degree kidnapping. This assignment of error is overruled.
VIII. Habitual Felon Indictment
Defendant contends the trial court erred in imposing enhanced habitual offender sentences for each underlying felony based upon one habitual felon indictment. The State submitted one indictment that enumerated four felony charges, including: (1) Second Degree Kidnapping, (2) Robbery with a Dangerous Weapon, (3) Breaking or Entering, Larceny, and Possession of Stolen Goods, and (4) Fleeing to Avoid Arrest.
Our Supreme Court has held that "a separate habitual felon indictment is not required for each substantive felony indictment." State v. Patton, 342 N.C. 633, 635, 466 S.E.2d 708, 709 (1996). Defendant argues that Patton was wrongly decided and submits that we should overturn that decision. We are bound by the Supreme Court's precedent and overrule this assignment of error. Id. at 635, 466 S.E.2d at 709.
IX. Conclusion
Defendant failed to assert any argument regarding his other assignments of error. These are deemed abandoned and are not addressed. N.C.R. App. P. 28(a) and (b)(5) (2002). Defendant's assignments of error presented and argued in his appeal are overruled.
No error.
Judges WYNN and LEVINSON concur.
Report per Rule 30(e).