Appeal by defendant from judgments entered 1 June 2000 by
Judge B. Craig Ellis in Scotland County Superior Court. Heard in
the Court of Appeals 5 November 2001.
Attorney General Roy Cooper, by Special Deputy Attorney
General James P. Longest, Jr., for the State.
James R. Parish for defendant-appellant.
MARTIN, Judge.
Defendant was charged with robbery with a dangerous weapon in
violation of G.S. § 14-87, and possession of a firearm by a felon
in violation G.S. § 14-415.1. He entered a plea of not guilty.
Briefly summarized, the evidence at defendant's trial tended to
show that Jamonze Brown went to Kinston Street in the Carolina Park
area of Laurinburg to visit relatives. His relatives were not at
home, and he sat in his car waiting to see if they would return.
Two males approached the car, one on each side of the vehicle.
According to Brown, the assailant on the driver's side brandished
a handgun, and the assailant on the passenger side held what
appeared to be an assault rifle. The men ordered him out of thecar and ordered him to give them a gold necklace which he was
wearing. The gunmen then tried to drive away in Brown's car, but
were apparently unable to drive a manual transmission. They ran
away, taking some money which was in the car.
Calvin Martin testified that he, defendant, Derrick Bethea,
Michael Williams, and Joseph Carmichael were together in
defendant's car on the date of the robbery and went to Carolina
Park looking for Robert Breeden. While they were looking for
Breeden, they saw Jamonze Brown sitting in his car. They were
unable to find Breeden and were returning to defendant's car when
defendant and Bethea stopped for a moment and had a conversation.
Defendant pulled a handgun from his waistline and handed it to
Bethea. Defendant, Martin, and Carmichael then returned to
defendant's car; Bethea and Williams turned around and walked in
Brown's direction. Defendant instructed Carmichael to drive the
car to a point near the place where Jamonze Brown was parked, and
watched while Bethea and Williams robbed Brown, stating, “Look at
them boys, they crazy, ain't they? They're soldiers.” After
Bethea and Williams attempted unsuccessfully to steal Brown's car,
both ran to defendant's car and left the area with defendant,
Martin, and Carmichael. The State also offered evidence tending to
show that defendant had been previously convicted of the felony of
common law robbery on 2 June 1999.
Defendant offered no evidence. He was found guilty of robbery
with a dangerous weapon and possession of a firearm by a felon.
The trial court entered judgments on the verdicts imposingconsecutive active terms of imprisonment in the aggravated range.
In addition, defendant was found to have violated the terms of an
earlier probationary sentence. Probation was revoked and his
sentence was activated. Defendant appeals.
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Defendant brings forward four assignments of error. Defendant
has not presented arguments in support of the remaining three
assignments of error contained in the record on appeal and they are
deemed abandoned. N.C.R. App. P. 28(b)(5).
I.
Defendant first contends the trial court erred in admitting
certain statements made by defendant at the time of his arrest. He
argues the statements were not relevant to any issue before the
jury and were unfairly prejudicial. We discern no error in the
admission of defendant's statements.
Relevant evidence is “evidence having any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401. “It is
not required that evidence bear directly on the question in issue,
and evidence is competent and relevant if it . . . reasonably
allows the jury to draw an inference as to a disputed fact.”
State
v. Hunt, 297 N.C. 258, 261, 254 S.E.2d 591, 594 (1979) (citation
omitted). Relevant evidence, nevertheless, “may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice.” N.C. Gen. Stat. § 8C-1, Rule 403. Pursuant to Rule ofEvidence 403, “the determination of whether relevant evidence
should be excluded is a matter left to the sound discretion of the
trial court, and the trial court can be reversed only upon a
showing of abuse of discretion.”
State v. Wallace, 351 N.C. 481,
523, 528 S.E.2d 326, 352-53,
cert. denied, 531 U.S. 1018, 148 L.
Ed. 2d 498 (2000) (citation omitted).
At the time of his arrest over two weeks after Brown was
robbed, defendant made several statements to the arresting
officers. Following a
voir dire hearing, the trial court
determined the statements made by defendant were spontaneous, were
not the result of police interrogation, and were therefore
admissible. Laurinburg Detective Monroe then gave the following
testimony:
After [defendant] was arrested, I advised
him what he was being arrested for and told
him what the charges were. He then told me
that he didn't know anything about a robbery,
that he was not present and that he does not
own a gun. The arrest process continued and
he was fingerprinted and photographed and we
were on our way to the magistrate's office and
on our way to the jail. At that point he said
“f--- you-all, f--- all of you-all.” On the
way to the jail he asked me why wasn't one of
the other guys arrested.
Contrary to defendant's assertions, this statement, taken as a
whole, was relevant to the issue of defendant's guilt or innocence
of the crime of robbery with a dangerous weapon. The statement was
internally inconsistent in that defendant initially denied any
knowledge of the robbery, but later asked why his companions had
not been arrested. Between these inconsistent statements,
defendant made an admittedly profane statement which, standingalone, is not relevant to a fact at issue, though it depicts a
demeanor from which one could infer a guilty knowledge. Even
without drawing such an inference, however, defendant's statements,
taken as a whole, shed light on his knowledge of the robbery and
are relevant and properly admissible. Moreover, the evidence of
defendant's use of profanity is not so unfairly prejudicial as to
substantially outweigh the statement's probative value. N.C. Gen.
Stat. § 8C-1, Rule 403. Probative evidence presented by the State
is necessarily prejudicial to the defendant; “the question is one
of degree.”
State v. Weathers, 339 N.C. 441,
449, 451 S.E.2d 266,
270 (1994). The trial court did not abuse its discretion in
permitting the investigating officer to recount the spontaneous
statements made by defendant, and defendant's assignment of error
is overruled.
II.
Defendant next assigns error to the trial court's denial of
his motion to dismiss the charge of robbery with a dangerous weapon
based on the insufficiency of the evidence. We reject defendant's
argument.
In order to survive a motion to dismiss, the State must
present “substantial evidence” as to the existence of each element
of the offense charged and of defendant's identity as the
perpetrator.
State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370,
387 (1984). “'Substantial evidence' is that amount of relevant
evidence that a reasonable mind might accept as adequate to support
a conclusion.”
State v. Cox, 303 N.C. 75, 87, 277 S.E.2d 376, 384(1981) (citation omitted). In ruling on a motion to dismiss, the
trial court must view the evidence in the light most favorable to
the State, “giving the State the benefit of all reasonable
inferences which can be drawn therefrom.”
State v. Givens, 95 N.C.
App. 72, 76, 381 S.E.2d 869, 871 (1989) (citation omitted).
Under the doctrine of acting in concert, “one may be found
guilty of committing the crime if he is at the scene acting
together with another with whom he shares a common plan to commit
the crime, although the other person does all the acts necessary to
effect commission of the crime.”
State v. Abraham, 338 N.C. 315,
346, 451 S.E.2d 131, 147 (1994) (citations omitted). “[N]either
simultaneous action nor equal participation in the commission of a
crime by two persons is a prerequisite for the application of the
theory of acting in concert.”
State v. Whiteside, 325 N.C. 389,
405, 383 S.E.2d 911, 920 (1989). It has been held that
“'[e]veryone who enters into a common purpose or design is equally
deemed in law a party to every act . . . which may afterwards be
done by any of the others, in furtherance of such common design.'”
State v. Lovelace, 272 N.C. 496, 498, 158 S.E.2d 624, 625 (1968)
(citations omitted).
In the present case, there was evidence tending to show that
defendant had a conversation with Derrick Bethea and passed Bethea
a handgun moments before the robbery occurred. Defendant then
instructed Carmichael to drive him to a point near Brown's car, and
to wait for Bethea and Williams. Defendant watched the robbery in
progress and commented: “Look at them boys, they crazy, ain't they? They're soldiers.” After Bethea and Williams were unable to drive
Brown's car, they ran to defendant's car and left the scene with
him. From this evidence we conclude that a reasonable jury could
infer that defendant was present and acted together with Derrick
Bethea and Michael Williams with a common purpose to rob Brown,
though he did not personally do any of the acts necessary to carry
it out. Defendant's assignment of error is overruled.
III.
Defendant next contends the trial court erred by sentencing
him in the aggravated range of punishment for robbery with a
dangerous weapon because it used the same evidence necessary to
prove an element of the offense as the basis to aggravate his
sentence. We note that defendant failed to object to the trial
court's finding on this ground, and that the question is not
properly preserved for appellate review. N.C.R. App. P. 10(b)(1).
Nevertheless, in the exercise of discretion granted us by N.C.R.
App. P. 2, we will suspend the requirement of Rule 10(b)(1) and
consider defendant's argument.
N.C. Gen. Stat. § 15A-1340.16(d) provides “[e]vidence
necessary to prove an element of an offense shall not be used to
prove any factor in aggravation” of punishment for that crime.
This Court has stated, “[i]t is error for an aggravating factor to
be based on circumstances which are part of the essence of a
crime.”
State v. Hughes, 136 N.C. App. 92, 99, 524 S.E.2d 63, 67
(1999),
disc. review denied, 351 N.C. 644, 543 S.E.2d 878 (2000).
In this case, defendant argues that his conviction was based uponhis acting in concert with Bethea and Williams to commit the
robbery so that the court's finding in aggravation that defendant
“joined with more than one other person in committing the offense
and was not charged with committing a conspiracy” violated G.S. §
15A-1340.16(d). After careful consideration, we reject his
argument.
The elements of robbery with a dangerous weapon are (1) the
unlawful taking or attempted taking of the property from another
person with (2) the possession, use, or threatened use of a firearm
or other dangerous weapon, (3) by which the life of the other
person is endangered or threatened.
State v. Joyner, 295 N.C. 55,
243 S.E.2d 367 (1978),
see N.C. Gen. Stat. § 14-87. Whether one
acts alone or with others is not an element of the crime. Nor is
it material to guilt whether one acts as a principal in the first
degree or a principal in the second degree; both are equally
guilty.
State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970).
In the present case, while evidence that defendant acted with
at least one other person was necessary to prove his participation
as a principal, it was not necessary to prove an element of the
crime. Moreover, the evidence that he “joined with
more than one
other person” was not required to prove either his participation as
a principal or an element of the offense. As noted in
State v.
Thompson, 309 N.C. 421, 307 S.E.2d 156 (1983), and followed by this
Court in
State v. Cinema Blue of Charlotte, Inc., 98 N.C. App. 628,
634, 392 S.E.2d 136, 139 (1990), many of the factors listed in the
present 15A-1340.16(d) (formerly 15A-1340.4(a)(1)) contemplate someduplication in proof, but such duplication does not prohibit the
trial court from using the evidence to find a factor in
aggravation. We conclude the trial judge did not err in finding
the factor in aggravation or in enhancing defendant's sentence by
reason thereof.
IV.
Finally, defendant contends the trial court erred by finding
the same aggravating factor, i.e, that “defendant joined with more
than one other person in committing the offense and was not charged
with committing a conspiracy,” to enhance his sentence for
possession of a firearm by a convicted felon. He contends there
was no evidence to support the factor. After careful consideration
of the evidence, we must agree with his assignment of error.
Initially, we note the transcript reveals that the trial court
orally found that defendant “joined
with one or more other persons
in committing the offense,” while the aggravating factor listed in
the written findings was that defendant “joined
with more than one
other person in committing the offense and was not charged with
committing a conspiracy.” (emphasis added).
However, there is no evidence that defendant possessed the
firearm with “more than one other person.” The evidence showed
only that defendant had a pistol, which belonged to Derrick Bethea,
tucked into his waistband and that he handed the pistol to Bethea
immediately before the robbery. There was no evidence to show when
or how defendant gained possession of the weapon, how long he had
the weapon in his possession before returning it to Bethea, or thatany of the other men had any relationship to the weapon while it
was in defendant's possession. Thus, at most, the evidence showed
that defendant joined with only one other person, Bethea, in
possessing the pistol. Accordingly, it was error to find the
aggravating factor and defendant is entitled to a new sentencing
hearing regarding his conviction for possession of a firearm by a
felon.
We find no error in defendant's trial; case number 99 CRS
8820, in which defendant was convicted of possession of a firearm
by a felon, is remanded for a new sentencing hearing.
No error; new sentencing hearing in 99 CRS 8820.
Chief Judge EAGLES and Judge JOHN concur.
Report per Rule 30(e).
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