STATE OF NORTH CAROLINA
v
.
ANTWANE ANDRE WALKER
Attorney General Roy Cooper, by Assistant Attorney General W.
Wallace Finlator, Jr., for the State.
Jeffrey Evan Noecker, for defendant-appellant.
CAMPBELL, Judge.
Defendant, Antwane Andre Walker (“Antwane”), appeals from a
judgment entered 12 September 2001 convicting him of robbery with
a firearm, first degree burglary and possession of a firearm by a
felon. On appeal, defendant argues five assignments of error by
the lower court: I. The trial court erred by failing to dismiss
the charge of possession of a handgun by a convicted felon and in
instructing the jury on constructive possession based on lack of
sufficient evidence; II. The trial court erred by failing to
dismiss the charges of first degree burglary and armed robbery and
by instructing the jury on acting in concert in relation to these
offenses based on lack of sufficient evidence; III. The trial court
erred by refusing to instruct the jury as to the lesser included
offenses of armed robbery and first degree burglary; IV. The trialcourt committed plain error by failing to sever the possession of
a handgun case from defendant's other cases and in admitting
details of defendant's prior felony; and V. The trial court
committed plain error by determining that defendant had ten prior
record level points.
The relevant facts to this appeal are as follows: On 9 May
2000, Sybreina Jones (“Ms. Jones”) and her three sons, Antonio, 13,
Ricardo, 9, and Christian, 5, were all inside their Wilmington home
when they heard a loud noise. Ms. Jones walked out of her room and
saw three black men approaching her. All three men had guns and
one of them asked, “Where's the money? Where's the jewelry?
Where's the drugs?” The men rummaged through the house,
overturning furniture and looking through cabinets. Only three men
were in the room where they told Ms. Jones and her boys to get down
on the floor and stay. Ms. Jones testified, however, that she
heard a great deal of noise in the back of the house, through which
someone had rummaged. She testified that Ricardo told her, “Mommy,
there's someone else in the house. . . . Mommy, it's Antwane.”
Ricardo told his mother that he recognized defendant's white
Reeboks and baggy jeans. Ricardo said Antwane had “a pillowcase
over his face.” Defendant is Ms. Jones' nephew and the boys'
cousin.
Captain David Smithey (“Captain Smithey”), of the New Hanover
County Sheriff's Office, testified that when he arrived home from
an outing the evening of 9 May 2000, he saw an unknown car in front
of his house. He asked a neighbor about the car, but the neighborknew nothing. While Captain Smithey was walking to ask a second
neighbor, he saw a black male walk hurriedly towards the car and
enter the car. Then three more black males did the same. Captain
Smithey took down the license plate number on the car and called it
in to 911. Detective Kevin Hargrove (“Detective Hargrove”), of the
City of Wilmington Police Department, heard the call over his
police radio regarding a suspicious vehicle. Detective Hargrove
located the vehicle, a burgundy Ford Taurus, “occupied by four
males . . . [with] the same tag that [he] heard over the radio.”
Detective Hargrove followed the car to an apartment complex and
called for backup. Detective Hargrove observed as all four men
entered an apartment. One of the men exited the apartment and left
the area. Detective Hargrove looked in the Taurus and found a
loaded “Cobray 9mm Mac 11 handgun.” Captain Smithey and other
backup arrived on the scene and went to the apartment door, where
Diane Flemming allowed them to enter the apartment.
The officers found two men downstairs and defendant upstairs
wearing baggy blue jeans and white Reeboks. The keys to the Ford
Taurus were in a room across the hall from where defendant was
sitting.
Detective Hargrove arrested the three men and took them to the
Sheriff's Department, where he found a woman's Larex watch in one
of the co-defendant's pockets. Detective Hargrove did not know
about the burglary and robbery at the time he made the arrests.
When he learned of the break-in at Ms. Jones' house, he returned a
few days later to the apartment where he made the arrests, theFlemming residence, and recovered two handguns from upstairs that
matched the description given by Ms. Jones, Antonio, and Ricardo of
the guns used in the burglary.
Diane Flemming, who was babysitting her daughter's three
children on 9 May 2000, testified that between 10:30 and 11:00
p.m., “[f]our young men came [into the residence] . . . [and] they
were acting kind of nervous.” Defendant was one of the men. About
ten minutes later the police knocked on the door and asked to
search the house.
We will consider defendant's five assignments of error in
turn.
I. Failing to dismiss the charge of possession of a handgun by a
convicted felon and in instructing the jury on constructive
possession.
“In ruling upon a motion to dismiss, the trial court must
determine if the State has presented substantial evidence of each
essential element of the offense.” State v. Reid, ___ N.C. App.
___, 565 S.E.2d 747 (2002) (citation omitted). “Whether the
evidence presented is substantial is a question of law for the
court.” State v. Siriguanico, ___ N.C. App. ___, 564 S.E.2d 301
(2002) (citing State v. Stephens, 244 N.C. 380, 384, 93 S.E.2d 431,
433 (1956)). “Evidence is substantial if it is relevant and
adequate to convince a reasonable mind to accept a conclusion.”
State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255 (2002),
cert. denied, ___ U.S. ___, 123 S. Ct. 488, ___ L.Ed.2d ___ (2002)
(citing State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663(1995)). When considering a criminal defendant's motion to
dismiss, the trial court must view all of the evidence presented
“in the light most favorable to the State, and the State is
entitled to all reasonable inferences which may be drawn from the
evidence.” State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138,
141 (1998) (citation omitted). The trial court correctly denies a
motion to dismiss “[if] there is substantial evidence of every
element of the offense charged, or any lesser offense, and of
defendant being the perpetrator of the crime.” State v. Ramseur,
338 N.C. 502, 507, 450 S.E.2d 467, 471 (1994) (citation omitted).
Defendant moved to dismiss the charge of possession of a
handgun by a convicted felon at the close of the State's evidence
and at the close of all the evidence. Defendant does not challenge
the evidence that establishes him being a convicted felon.
Defendant's contention is that there is insufficient evidence to
show that he possessed a handgun during the commission of the
burglary and armed robbery of Ms. Jones. The handgun which
defendant is charged with possessing is the 9 millimeter Mac 11
found by Detective Hargrove in the backseat of the Taurus.
Defendant argues that no evidence links him to having constructive
possession of this handgun. We disagree. Our state Supreme Court
has recently reaffirmed the doctrine of acting in concert as:
[I]f 'two persons join in a purpose to commit
a crime, each of them, if actually or
constructively present, is not only guilty as
a principal if the other commits that
particular crime, but he is also guilty of any
other crime committed by the other in
pursuance of the common purpose . . . or as a
natural or probable consequence thereof.'
State v. Mann, 355 N.C. 294, 560 S.E.2d 776, 784 (2002), cert.
denied, ___ U.S. ___, 123 S.Ct.495, ___ L.Ed.2d ___ (2002) (quoting
State v. Barnes, 345 N.C. 184, 233, 481 S.E.2d 44, 71 (1997), cert.
denied, 522 U.S. 876, 118 S. Ct. 196, 139 L.Ed.2d 134 (1997), and
cert. denied, 523 U.S. 1024, 118 S. Ct. 1309, 140 L.Ed.2d 473
(1998) (citations omitted)). Defendant concedes that there is
substantial evidence that he was present at the scene of the
burglary and robbery. Defendant contends, however, that the
evidence is insufficient to connect him to a common plan or scheme
to break into Ms. Jones' house and to commit armed robbery of the
occupants. Defendant's argument is without merit. To find that
the trial court erred in failing to grant defendant's motion to
dismiss based on insufficient evidence, this Court would have to
find that defendant's presence at Ms. Jones' house at the time of
the burglary and armed robbery was coincidental to and ignorant of
the co-defendants' presence. We find that defendant acted in
concert with the other three men to commit burglary and armed
robbery. Therefore, possession of the gun found in the Taurus that
fits the description of one of the guns used by a co-defendant is
imputed to defendant through his acting in concert to commit
burglary and armed robbery. Accordingly, the trial court did not
err, as defendant further argues, in instructing the jury on
constructive possession. We dismiss this assignment of error.
II. Failing to dismiss the charges of first degree burglary and
armed robbery and by instructing the jury on acting in concert. Defendant argues that there is insufficient evidence to
convict him of first degree burglary and armed robbery because he
was merely present at the crime scene and there is no evidence that
defendant knew that any of the co-defendants were armed. Per the
discussion above regarding acting in concert, we find this argument
to be without merit.
III. Refusing to instruct the jury as to the lesser included
offenses of armed robbery and first degree burglary.
Defendant argues that a trial court must instruct a jury as to
the lesser included offenses of a charge against a defendant if the
State fails to produce strong evidence of one or more of the
elements of the offense charged. While this is true, we find it an
inapplicable argument to this case. The State presented ample
evidence at trial of all seven elements of armed robbery, such that
a jury could find that defendant had knowledge that his accomplices
had guns. See N.C. Gen. Stat. § 14-87 (2001). Defendant further
raises issue with the requisite element of armed robbery that the
life of the victim be threatened or endangered. Defendant contends
that no threats of harm were ever communicated to Ms. Jones or her
children. Antonio testified that his brother, Ricardo, “tried to
run and the man grabbed him and put the gun to his head. . . . And
he told him to be quiet and put a hand over his mouth.” Antonio
said that he “screamed and told [the man] to get off [his]
brother.” Then Antonio testified, another “little short guy came
in, and he pushed me on the ground . . . and put my hands behind my
back and put the gun on my back.” Ricardo testified, “I tried torun, and then [the man] grabbed me and put me under his leg and put
the gun to my head.” This is sufficient evidence to satisfy the
requisite element of armed robbery that the life of the victim be
threatened.
The State also presented sufficient evidence to establish all
the elements of first degree burglary. See N.C. Gen. Stat. § 14-51
(2001). Defendant contends that the trial court should have
instructed the jury on second degree burglary because there was
insufficient evidence of an intent on defendant's part to commit
armed robbery at the time of the breaking and entry. Having
established that defendant was acting in concert with the
co-defendants, he is guilty of the principal crime committed.
Second degree burglary requires that the dwelling place be
unoccupied at the time of the crime. As the house was occupied by
four people, there was sufficient evidence of the elements of first
degree burglary. This assignment of error is dismissed.
IV. Failing to sever the possession of a handgun case from
defendant's other cases and admitting details of defendant's prior
felony.
Defendant argues that the trial court committed plain error by
failing to sever the trial for the possession of a handgun by a
convicted felon offense from the burglary and armed robbery
offenses. We disagree. Defendant, as he concedes, did not object
to the trial court's consolidation of the three charges and
therefore, we can only consider this argument under a plain error
standard. “Plain error is 'fundamental error' amounting to amiscarriage of justice or having a substantial and prejudicial
impact on the jury verdict.” State v. Bartlett, Sr., ___ N.C. App.
___, ___ S.E.2d ___ (2002) (citing State v. Parker, 350 N.C. 411,
427, 516 S.E.2d 106, 118 (1999), cert. denied, 528 U.S. 1084, 120
S. Ct. 808, 145 L.Ed.2d 681 (2000)). “Under this standard,
defendant is entitled to relief if he can show “'(i) that a
different result probably would have been reached but for the error
or (ii) that the error was so fundamental as to result in a
miscarriage of justice or denial of a fair trial.'” State v.
O'Hanlan, ___ N.C. App. ___ , ___ S.E.2d ___ (2002) (citation
omitted). Defendant has failed to show that the jury may have
reached a different result or that the trial court not severing the
trials ex mero motu was so fundamental an error as to deny him a
fair trial.
Defendant argues, in the alternative to the trial court
committing plain error by not severing the trials sua sponte, that
he received ineffective assistance of counsel. We find that
defendant cannot show that by failing to object to the joinder that
his counsel was so deficient that it prejudiced his defense.
V. Determining that defendant had ten prior record level points.
Defendant argues that the State mistakenly counted a prior
class 2 misdemeanor as a point when only class A1 and 1 non-traffic
misdemeanors should count as points. In turn, defendant's sentence
was decided according to him having ten points instead of nine.
The State agrees that it miscalculated defendant's prior points and
the correct number is nine. The miscalculation, however, washarmless because defendant remains a level IV offender, which
requires nine to fourteen points. Since defendant still has nine
points after correcting the State's error and his sentence would
remain the same, we dismiss this assignment of error.
No error.
Judges WALKER and McCULLOUGH concur.
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