NO. COA02-121


Filed: 18 March 2003


v.                        Durham County
                            Nos. 00 CRS 65482-85
JERMAINE COVINGTON                 01 CRS 7945     

    Appeal by defendant from judgments entered 31 October 2001 by Judge Narley L. Cashwell in Durham County Superior Court. Heard in the Court of Appeals 16 October 2002.

    Attorney General Roy Cooper, by Assistant Attorney General Daniel D. Addison, for the State.

    Megerian & Wells, by Jonathan L. Megerian, for defendant appellant.


    Jermaine Covington (“defendant”) appeals from his convictions of two counts of second-degree kidnapping and two counts of attempted robbery with a dangerous weapon. For the reasons discussed herein, we hold that defendant received a trial free from prejudicial error.
    The State presented evidence at trial tending to show the following: On 25 October 2000, Maurice Ashby (“Maurice”) encountered defendant, Harold Brandon (“Brandon”), and an unidentified male (“the unidentified male”) at his home in Durham, North Carolina (“Ashby house”). Defendant informed Maurice that he “heard [Maurice] had some puppies for sale,” at which time Maurice denied that he had puppies for sale. Upon hearing the denial, the

unidentified male brandished a firearm and ordered Maurice to lie on the ground. As Maurice lay on the ground, his pockets were searched and the unidentified male said, “go get it.” Defendant and Brandon then entered Ashby house. At the time, Lakeish Whitter (“Whitter”), Maurice's girlfriend, and their two children, Daijah Ashby (“Daijah”) and Myah Ashby (“Myah”) were inside of Ashby house. Upon entering the house, defendant and Brandon pushed Whitter to the floor and “rambled through” several rooms.
    Carlos Corbett (“Corbett”), a retired college campus police officer, lived next door. Hearing Maurice's dogs barking in an unusual manner, Corbett secured his gun and flashlight in order to investigate the disturbance. Upon leaving his home, Corbett saw defendant, Brandon, the unidentified male and Maurice, standing outside of Ashby house. Corbett, seeing Maurice with his hands raised in the air, then walked toward a tree and saw Maurice lying on the ground as the unidentified male held a gun to his head. Corbett then yelled, “police, drop the weapon,” and discharged one shot from his weapon into the ground. The unidentified male dropped his weapon, Corbett picked it up, and gave it to Maurice.     As Maurice held the unidentified male at gun point, Corbett went into Ashby house to apprehend defendant and Brandon. Having heard Corbett discharge his firearm and unable to escape through the windows, defendant and Brandon remained inside of a bedroom with Whitter and four-year-old Daijah. Defendant walked out of the bedroom with Daijah in his arms followed by Brandon, who picked up two-year-old Myah. Both men proceeded to walk towards an exit of

Ashby house but Corbett instructed them to release the children and discharged a “warning shot.” Despite the warning from Corbett, defendant proceeded to walk out of Ashby house with Daijah.
    Maurice, who was outside fighting the unidentified male, saw defendant exit Ashby house with Daijah. Maurice pointed his firearm toward defendant who then held Daijah up as a shield. Thereafter, Maurice ran toward defendant and began fighting with him. As Maurice fought with defendant, the unidentified male fled the scene and Whitter took Daijah away from defendant. Corbett, still inside of Ashby house, forcefully removed Myah from Brandon. Police arrived at Ashby house and arrested defendant and Brandon. The unidentified male was never identified, arrested or charged with a crime. Brandon was tried separately. At trial, defendant testified that he was a victim of a crime and present at Ashby house only to purchase a puppy.
    Upon conclusion of the evidence, the jury found defendant guilty of two counts of kidnapping and two counts of attempted robbery with a dangerous weapon. Following trial, defendant admitted his violent habitual felon status. Defendant was sentenced to a term of life imprisonment. Defendant appeals.


    Defendant presents five assignments of error on appeal, arguing that the trial court erred by (1) allowing defective indictments; (2) admitting evidence of defendant's prior conviction; (3) admitting testimony that defendant failed to give a statement to police and requested an attorney; (4) denying his

motion to dismiss the charge of attempted armed robbery. In his final assignment of error defendant asserts that he received ineffective assistance of counsel at trial.
    In his first assignment of error, defendant argues that the trial court committed reversible error by allowing him to be tried for attempted armed robbery. Specifically, defendant contends that the indictments in this matter are flawed, because the description of the property is valued at “$0.” We disagree.
    Generally it is “'true tha[t] an indictment need only allege the ultimate facts constituting the elements of the criminal offense.'” State v. Thomas, ____ N.C. App. ____, 570 S.E.2d 142, 147 (quoting State v. Youngs, 141 N.C. App. 220, 230, 540 S.E.2d 794, 801 (2000)), disc. review denied, 356 N.C. 624, ____ S.E.2d ___ (2002). “The elements need only be alleged to the extent that the indictment (1) identifies the offense; (2) protects against double jeopardy; (3) enables the defendant to prepare for trial; and (4) supports a judgment on conviction.” Id.
    In State v. Owens, 277 N.C. 697, 178 S.E.2d 442 (1971), overruled on other grounds, 320 N.C. 589, 359 S.E.2d 776 (1987), the defendant pointed a gun at a storekeeper and forced him to open the store safe. Id. at 699, 178 S.E.2d at 443. However, another individual interrupted the robbery and subdued the defendant until police arrived. Id. The defendant was charged with attempted armed robbery. The resulting indictment read as follows: “. . . carry[ing] away U. S. currency of the value of ___ from the presence, person, place of business, and residence of . . . .” Id.

at 698, 178 S.E.2d at 443. Our Supreme Court in Owens concluded that
        [t]he gist of the offense as described in this indictment is attempt to commit robbery by the use or threatened use of firearms. The force or intimidation occasioned by the use or threatened use of firearms is the main element of the offense. In such a case, it is not necessary or material to describe accurately or prove the particular identity or value of the property, provided the indictment shows that the property was that of the person assaulted or under his care, and that such property is the subject of robbery and that it had some value.
Id. at 700, 178 S.E.2d at 444.
    In the case sub judice, the indictments read in pertinent part:
        . . . the defendant . . . unlawfully, willfully and feloniously did attempt to steal, take and carry away another's personal property, U.S. Currency of the value of $0, from the presence and person of . . . . [D]efendant committed this act having in possession and with the use and threatened use of firearms and other dangerous weapons, implements, and means, a semi-automatic handgun, whereby the life of . . . was endangered or threatened.

A review of the indictment reveals that it alleged the ultimate facts constituting the elements for attempted robbery with a dangerous weapon. We note that the language approved in Owens is very similar to the language in the present indictment. Some value can be inferred from the description of “U.S. Currency.” See Id. It is clear that the meaning of this was that the amount of currency defendant was alleged to have attempted to steal was undetermined. Thus, the indictment was adequate in that it

sufficiently identified the offense, protected against double jeopardy, sufficiently served the purpose of placing defendant on notice of the charge in order for him to prepare a defense, and supports the judgment on conviction. We find no error.
    By his second assignment of error, defendant argues that the trial court committed reversible error when it allowed testimony from Linda Covington (“Linda”), defendant's mother, pertaining to defendant's prior conviction for armed robbery. We disagree.
    We first note that defendant did not object to testimony given by Linda at trial, and he may not assign her testimony as error on appeal. N.C.R. App. P. 10(b)(2) (2002). Since this issue has not been preserved for appeal, this Court may review it for plain error. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). In order to show plain error, “defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
    In State v. Syriani, 333 N.C. 350, 428 S.E.2d 118, cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341 (1993), the defendant was on trial for murdering his wife. The defendant, on cross examination, elicited testimony from his daughter about his violent behavior. Id. at 378, 428 S.E.2d at 132. On appeal, the defendant contended that testimony from his daughter was inadmissible because it contained prior bad acts. Id. The Syriani Court stated that
        “[t]he law wisely permits evidence not otherwise admissible to be offered to explain or rebut evidence elicited by the defendant himself. Where one party introduces evidence

as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially.”

Id. at 378, 428 S.E.2d at 133 (quoting State v. Hudson, 331 N.C. 122, 154, 415 S.E.2d 732, 749 (1992)). “A defendant is not prejudiced . . . by error resulting from his own conduct.” State v. Greene, 324 N.C. 1, 12, 376 S.E.2d 430, 438 (1989) (holding that a defendant cannot invalidate the trial by inviting error, eliciting evidence on cross-examination which he might have rightfully excluded if the same evidence had been offered by the State).
    In the instant case, defendant called Linda to testify and the following exchange took place:
        Q: Did [defendant] work back during that time?
        A: He was trying to find a job. Because he hadn't been [out of prison] too long . . .

On cross-examination the following colloquy with Linda took place:
        Q: And was [defendant] working?

        A: No.
        Q: Now, he had just been released from prison for what?
        A: Armed robbery.
        Q: And how long did he get?
        A: Seven years.
        Q: He got fourteen years, actually, right?
        A: I'm going to say fourteen years, yeah.

Here, defendant elicited from Linda information about his employment status and such testimony revealed that defendant had been in prison. Since defendant introduced evidence as to the particular reason for his unemployment status, it was permissible for the State to follow with questions explaining that testimony. Defendant cannot argue before this Court that he was prejudiced by conduct resulting from his own actions. Assuming arguendo that there was error, defendant has failed to show that absent the error the jury would have reached a different result. Defendant's argument is overruled.
    In defendant's next assignment of error, he argues that the trial court erred by failing to intervene during cross-examination of defendant regarding his failure to provide a statement to police and his request to consult an attorney. Defendant asserts that his Fifth Amendment right to remain silent was violated. We disagree.
    As with the previous assignment of error, defendant failed to object at trial to the State's questions related to his failure to give a statement to police or his request for counsel. Since defendant did not object, this Court will review the issue only for plain error. N.C.R. App. P. 10(b)(2).
    Defendant appears to rely on State v. Ladd, 308 N.C. 272, 302 S.E.2d 164 (1983), to further his argument that his rights to remain silent and seek counsel were violated. The Ladd Court concluded that the State may not introduce evidence relating to defendant's expression of his right to counsel or his Fifth

Amendment right to remain silent. Id. at 283, 302 S.E.2d at 171. The Ladd decision has no application to this case, because here defendant took the stand at trial and offered an explanation for not talking with police and asking for counsel, thus opening the door for cross-examination on the issue. Where a defendant takes the stand at trial and testifies about his reasons for not making a statement and insisting upon having counsel, he has opened the door to the State's cross examination on that subject. State v. McQueen, 324 N.C. 118, 134-5, 377 S.E.2d 38, 47-8 (1989).
    In the present case, defendant maintained as his defense that he was a victim at Ashby house and was only there to “discuss” the purchase of a puppy. On direct examination defendant testified that he wanted to explain to the police that he was a victim, but did not get the opportunity. Defendant further testified that although he intended to inform police that he was a victim, he instead told them “I prefer to see a lawyer.” On cross-examination the State's questions challenged defendant's claim that he was a victim and that he did not have an opportunity to explain this important fact to the police. The State's questions elicited testimony explaining that defendant had been given an opportunity to inform the police that he was not the perpetrator of a crime, however, he declined to offer this information to police. The State's questions concerning defendant's choice to wait for counsel rather than make a statement clarified testimony given by defendant on direct examination. Therefore, defendant opened the door to questions concerning his behavior with the police and his assertion

of his right to counsel. The trial court did not err in failing to intervene during cross-examination. This assignment of error is overruled.
    In his fourth assignment of error, defendant argues that the trial court erred in denying his motion to dismiss the charges of attempted armed robbery due to the insufficiency of evidence. In this assignment of error, defendant argues that the evidence failed to show that he searched Maurice's pockets or that he attempted to remove property from Whitter in Ashby house. We disagree.
    In considering a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference that may be drawn from the evidence. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). “A motion to dismiss on the ground of insufficient evidence should be denied if there is substantial evidence of each element of the crime, and that defendant [is] the perpetrator.” State v. Cozart, 131 N.C. App. 199, 202, 505 S.E.2d 906, 909 (1998), disc. review denied, 350 N.C. 311, 534 S.E.2d 600 (1999). Evidence is substantial when a jury “could find the fact to be proved beyond a reasonable doubt.” State v. Sumpter, 318 N.C. 102, 108, 347 S.E.2d 396, 399 (1986).
    “'Under the doctrine of acting in concert, if two or more persons act together in pursuit of a common plan or purpose, each of them, if actually or constructively present, is guilty of any crime committed by any of the others in pursuit of the common plan.'” State v. McCullers, 341 N.C. 19, 30, 460 S.E.2d 163, 169

(1995) (quoting State v. Laws, 325 N.C. 81, 97, 381 S.E.2d 609, 618 (1989)). This is true even where “the other person does all the acts necessary to commit the crime.” State v. Jefferies, 333 N.C. 501, 512, 428 S.E.2d 150, 156 (1993).
    Viewing the evidence in the light most favorable to the State, we hold that there was substantial evidence from which a jury could find that defendant attempted armed robbery with a dangerous weapon. The evidence tends to show that defendant arrived at Ashby house with two other assailants, held a gun to the head of Maurice and searched his pockets. Maurice testified that he “thought [he] had a few dollars in [his] pocket.” It is irrelevant as to which of the assailants actually held the gun to Maurice's head or took money from his pocket. Further evidence shows that defendant entered Ashby house, where Whitter resides, instructed her to lie on the floor, and then began to search several rooms inside Ashby house. Although Whitter could not identify which assailant had a weapon, she did testify that one of the assailants was in possession of a weapon upon entering Ashby house. From this evidence, a jury could properly infer that defendant was at the scene acting together with two other assailants in an attempt to rob Maurice and Whitter, while using a dangerous weapon. Therefore, defendant's motion to dismiss was properly denied.
    In his last assignment of error, defendant argues that he received ineffective assistance of counsel at trial. Defendant contends that his trial counsel failed to object, on cross-

examination, to improper testimony from defendant and his witness, Linda. We disagree.    
    In order for defendant to prevail on an ineffective assistance of counsel claim, a two-prong test must be satisfied. State v. Stroud, 147 N.C. App. 549, 555, 557 S.E.2d 544, 547 (2001), cert. denied, 356 N.C. 623, ____ S.E.2d _____ (2002). “'First, he must show that counsel's performance fell below an objective standard of reasonableness. Second, . . . he must show that the error committed was so serious that a reasonable probability exists that the trial result would have been different absent the error.'” Id. (quoting State v. Blakeney, 352 N.C. 287, 307-08, 531 S.E.2d 799, 814-15 (2000)). In analyzing the reasonableness under the first prong of the test, a reviewing court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See id. at 555, 557 S.E.2d at 549.
    Here, defendant refers to arguments raised in assignments of error two and three to develop his ineffective assistance of counsel argument. However, defendant fails to satisfy the test as laid out in Stroud. First, defendant has failed to show that his attorney's performance fell below an objective standard of reasonableness. Second, given the overwhelming evidence against defendant, the failure to object in certain instances would not make it more probable that the outcome of the trial would have been different. Defendant's last assignment of error is overruled.

    For the reasons contained herein, we hold the trial court did not err.
    No error.
    Judges WYNN and HUNTER concur.
    Report per Rule 30(e).