1. Criminal Law_motion to dismiss_credibility of witnesses_not for trial court to weigh
There was no error in the denial of a motion to dismiss charges of armed robbery, first-
degree burglary, assault, sexual offense, and other crimes where defendant argued that the only
evidence of identity was from codefendants whom defendant contended lacked credibility. The
trial court was not permitted to weigh the credibility of the witnesses, and all of the evidence
permitted a reasonable inference of defendant's guilt.
2. Criminal Law_request for written instructions_ re-read instead
The trial court did not err by not providing written instructions upon the jury's request in
a prosecution for armed robbery, first-degree burglary, assault, sexual offense, and other crimes.
The fact that the judge re-read the instructions represents compliance with the essence of the
jury's request.
3. Criminal Law_flight_visit to friend's house_not sufficient for instruction
The trial court erred by instructing the jury on flight on evidence that defendant went to
the home of a friend after the crime. There was no evidence that defendant did so to avoid
apprehension; visiting a friend at a residence is not an act that raises a reasonable inference that a
defendant was avoiding apprehension. However, this error was harmless in light of the remaining
evidence in the case, including the identification of defendant as the perpetrator of the crimes
charged.
Attorney General Roy Cooper, by Assistant Attorney General
Leonard G. Green, for the State.
LIGON & HINTON, by Lemuel W. Hinton, attorney for defendant-
appellant.
TIMMONS-GOODSON, Judge.
Thomas Bryant Holland (“defendant”) appeals his convictions of
robbery with a dangerous weapon, first-degree burglary, conspiracy
to commit robbery with a dangerous weapon, assault with a deadlyweapon with intent to kill inflicting serious injury, and first-
degree sexual offense. For the reasons stated herein, we hold that
defendant received a trial free of prejudicial error.
The evidence presented by the State at trial tends to show the
following: On 29 September 2000, C.C. was living in Fuquay-Varina,
North Carolina. On that evening, C.C. and her boyfriend, James
Brooks (“Brooks”), arrived at her home at 9:30 p.m. At
approximately 10:00 p.m., Michael Booker (“Booker”) visited the
residence, purchased marijuana from C.C. and left. Shortly
thereafter, C.C. and Brooks were robbed in the house by two masked
men with guns. C.C. recognized one of these two individuals as
“Scoop Lover.” Lover, whose given name is Donny McNeil (“McNeil”),
had recently visited her residence, accompanied by Booker and
Christopher Shaw (“Shaw”), to purchase marijuana.
McNeil and the unidentified male entered the house and at
gunpoint demanded money and drugs. C.C. gave McNeil money that she
kept in her bedroom. The second, unidentified individual then
directed C.C. into her daughter's bedroom where he sexually
assaulted her while threatening her with a gun. While these events
transpired, Brooks escaped McNeil's grasp and ran toward the front
door of the house. McNeil and the unidentified individual then
fired their guns at Brooks, striking him five times. Brooks
escaped the house, ran to a neighbor's house, and called 911.
The State presented evidence through McNeil, Booker and Shaw's
testimony that defendant participated in the planning and
commission of the sexual assault and robbery of C.C. and the felony
assault of Brooks.
The issues presented on appeal are whether the trial court
erred by (I) denying defendant's motion to dismiss the charges
against him; (II) failing to provide the jury with a written copy
of the jury instructions upon their request; and (III) instructing
the jury on flight of the defendant.
[1] Defendant first-argues that the trial court erred in
denying his motion to dismiss the charges of robbery with a
dangerous weapon, first-degree burglary, conspiracy to commit
robbery with a dangerous weapon, assault with a deadly weapon with
the intent to kill inflicting serious injury, and first-degree
sexual offense. Defendant asserts that the State presented
insufficient evidence to support these charges. We disagree.
In ruling on a motion to dismiss, the trial court must
determine whether there is substantial evidence of each element of
the offense charged. See State v. Bullard, 312 N.C. 129, 160, 322
S.E.2d 370, 387 (1984). “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). When reviewing the evidence, the trial court must
consider all evidence in the light most favorable to the
prosecution, granting the State the benefit of every reasonable
inference. See State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585,
587 (1984). “The trial court is not required to determine that the
evidence excludes every reasonable hypothesis of innocence prior todenying the defendant's motion to dismiss.” State v. Malloy, 309
N.C. 176, 178, 305 S.E.2d 718, 720 (1983).
In the present case, defendant argues that the evidence was
insufficient for three reasons: (I) C.C. and Brooks never
positively identified defendant at trial; (II) there was no
physical evidence linking defendant to the crimes; and (III) co-
defendants provided the only positive identification of defendant.
Defendant argues that his co-defendants lack the credibility to
provide honest testimony. We hold that the co-defendants'
testimony identifying defendant as a co-conspirator provides
substantial evidence that defendant was the unidentified individual
who committed the crimes, and that the evidence was sufficient to
support the trial court's denial of the motion to dismiss.
Defendant argues that “the identity evidence was inherently
weak, biased, and unreliable.” The trial court was required only
to determine whether, in the light most favorable to the State, the
evidence linked defendant to the crimes. The trial court was not
permitted to weigh the credibility of the witnesses. The fact that
neither C.C. nor Brooks could positively identify defendant and the
lack of physical evidence to link defendant to the crimes does not
negate the existence of other evidence that the State presented.
The testimony of McNeil, Booker and Shaw viewed in the light most
favorable to the State shows that defendant was armed during the
commission of the crimes, entered C.C.'s home and robbed her of
personal property, sexually assaulted her, and fired his gun at
Brooks while Brooks was escaping. The defendant did not testify,
nor did he present any witnesses to contradict this testimony. Thus, all of the evidence presented permits a reasonable inference
of defendant's guilt sufficient to defeat a motion to dismiss. We
conclude that the trial court did not err in denying defendant's
motion to dismiss.
We also disagree with defendant's contention that the State's
evidence raises only a mere suspicion of defendant's identity as
the second gunman. We agree that the law requires that when the
evidence raises only a suspicion or conjecture as to the identity
of the defendant as the perpetrator, the motion to dismiss must be
allowed. Malloy, 309 N.C. at 179, 305 S.E.2d at 720. However, in
the present case, the co-defendants positively identified defendant
as the second gunman, which rises to more than a mere suspicion.
Therefore, the trial court properly left the determination of the
witnesses' credibility to the jury.
[2] Defendant next argues that the trial court erred in not
providing written instructions to the jury upon request. During
its deliberations, the jury asked the trial court for written
instructions on the elements of all of the charges which were
submitted for the jury's consideration. The trial court declined
to provide written instructions, but orally repeated the
instructions to the jury.
A trial court has inherent authority, in its discretion, to
submit its instructions on the law to the jury in writing. State
v. McAvoy, 331 N.C. 583, 591, 417 S.E.2d 489, 494 (1992) citing
State v. Bass, 53 N.C. App. 40, 45, 280 S.E.2d 7, 10 (1981). When
a trial court fails to exercise its discretion in the erroneous
belief that it has no discretion as to the question presented,there is error. State v. Lang, 301 N.C. 508, 510, 272 S.E.2d 123,
125 (1980). However, where the trial court declines to provide
written instructions, but repeats the requested instructions for
the jury, thereby complying with the essence of the jury's request,
there is no prejudicial error. McAvoy, 331 N.C. at 591, 417 S.E.2d
at 494-95.
In the present case, the jury requested that the judge provide
a written description of the charges. The judge replied, “[i]f
you're asking about getting a written copy of that description I do
not have that for you. If you're talking about me re-charging you
on some or all of those charges, I can do that.” The jury later
asked to be recharged on two specific counts. It is unclear from
Judge Labarre's reply whether he believed that he had no discretion
to provide written instructions, or whether he was simply stating
that he had no written instructions available. However, the fact
that the judge re-read the instructions for the two charges that
the jury specifically requested represents compliance with the
essence of the jury's request, and therefore we overrule this
assignment of error.
[3] Defendant's final argument asserts that the trial court
erred in instructing the jury on flight of the defendant, because
the evidence was insufficient to merit such an instruction. We
agree.
A trial judge may instruct a jury on a defendant's flight if
"there is some evidence in the record reasonably supporting the
theory that defendant fled after commission of the crime charged."
State v. Thompson, 328 N.C. 477, 489, 402 S.E.2d 386, 392 (1991)(quoting State v. Levan, 326 N.C. 155, 164-65, 388 S.E.2d 429, 433-
34 (1990)). “Mere evidence that defendant left the scene of the
crime is not enough to support an instruction on flight. There
must also be some evidence that defendant took steps to avoid
apprehension.” Thompson, 328 N.C. at 490, 402 S.E.2d at 392.
In the present case, the evidence presented, even in the light
most favorable to the State, shows that defendant left the crime
scene with his accomplices and drove to the home of one of the
accomplices. Following this, defendant was driven to a
girlfriend's residence. There is no evidence that he went there to
avoid apprehension. Visiting a friend at their residence is not an
act that, by itself, raises a reasonable inference that defendant
was attempting to avoid apprehension. Therefore, it was error for
the trial court to instruct the jury on flight. However, in light
of the remaining evidence in this case, including the
identification of defendant as the perpetrator of the crimes
charged, the error in instructing the jury on flight was harmless.
Thus, we conclude that defendant received a trial free of
prejudicial error.
No error.
Judges Hunter and Elmore concur.
*** Converted from WordPerfect ***