NO. COA02-641
Appeal by defendant from judgments entered 3 October 2001 by
Judge Michael E. Helms in Guilford County Superior Court. Heard in
the Court of Appeals 12 May 2003.
Attorney General Roy Cooper, by Special Deputy Attorney
General Gerald K. Robbins, for the State
Richard E. Jester for defendant appellant.
TIMMONS-GOODSON, Judge.
Raleigh Lawrence Williams (“defendant”) appeals from his
conviction of two counts of robbery with a dangerous weapon and one
count of being an habitual felon. For the reasons that follow, we
uphold defendant's convictions.
The State presented evidence at trial tending to show the
following: On 8 August 2000, Ruth Digennaro (“Ruth”) and her
husband, Frank Digennaro (“Frank”), were returning to their home in
Greensboro, North Carolina, after taking a trip to Cherokee, North
Carolina. Upon entering their driveway, Frank exited their vehicle
in order to let their dog outside. Frank then took the dog to a
grassy patch next to their home. Shortly thereafter, Ruth exitedthe vehicle and heard voices. Ruth then noticed that Frank was
“scuffling” with three men. One of the men ordered Frank to give
him his wallet, and Frank refused. The men hit Frank, threw him to
the ground, and removed his wallet. Defendant then pointed a
firearm at Frank's head and asked Ruth where her purse was located.
Ruth informed defendant that her purse was in her vehicle. Upon
learning this information, defendant “ran around, jumped in the car
and took off like a bullet.” The other men also fled the scene.
Defendant was convicted of two counts of robbery with a
dangerous weapon and one count of being an habitual felon.
Defendant was then sentenced to two consecutive terms of
imprisonment, with 167 months as the minimum term and 210 months as
the maximum term for each conviction. Defendant appeals.
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Defendant contends that the trial court erred by (1)
proceeding with his trial when he was absent from court; and (2)
failing to dismiss the case at the close of the evidence. In his
final assignment of error, defendant contends that he received
ineffective assistance of counsel. For the reasons set forth
herein, we conclude that the trial court committed no error.
In his first assignment of error, defendant argues that the
trial court erred by holding a hearing in his absence. Defendant
asserts that he was entitled to be present at all times during his
trial and therefore he is entitled to a new trial. We disagree.
“It is well-established that under both the federal and North
Carolina constitutions a criminal defendant has the right to beconfronted by the witnesses against him and to be present in person
at every stage of the trial.”
State v. Braswell, 312 N.C. 553, 558,
324 S.E.2d 241, 246 (1985)
. “The right to be present at all
critical stages of the prosecution is subject to harmless error
analysis.”
State v. Wise, 326 N.C. 421, 433, 390 S.E.2d 142, 149,
cert. denied, 498 U.S. 853, 112 L. Ed. 2d 113 (1990).
We find the facts in this case remarkably similar to the facts
presented in
Wise. In
Wise,
the defendant's counsel was present
during the charge conference, and the trial court subsequently
announced the proposed instructions on the record and gave defense
counsel the opportunity to be heard.
Id. at 433, 390 S.E.2d at
149-50. Furthermore, the defendant was present when the actual
charge was given to the jury and did not object to its contents.
See id. Based on these facts, the Court in
Wise found that any
error in excluding defendant from the
charge conference was
harmless.
Id. at 433, 390 S.E.2d at 149. Likewise, in the case
sub judice, the defendant was absent from a short discussion on
instructions to be given to the jury, was present when the charge
was read to the jury, and failed to object to the contents of the
jury charge. Defendant has failed to show how he was prejudiced
due to his absence from the charge conference. Therefore, this
assignment of error is overruled.
In his second assignment of error, defendant argues that there
was insufficient evidence to convict him of robbery with a
dangerous weapon. Defendant notes the following deficiencies in
the State's case: (1) failure by the victim to identify thedefendant; (2) failure to provide a witness, other than a co-
conspirator, to place defendant with his conspirators or the
victims' vehicle; (3) the lack of physical evidence tending to show
that defendant was in the victims' vehicle; and (4) evidence that
defendant was forty miles away when the victims' vehicle was
stolen. Finally, defendant notes that one of the witnesses
testified that he had been coerced by the State to “say what the
State wanted to hear, which included that [defendant] was
involved.” We disagree.
To survive a motion to dismiss, the State must present
substantial evidence of each essential element of the charged
offense.
State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434
(1997). “'Substantial evidence is relevant evidence that a
reasonable mind might accept as adequate to support a conclusion.'”
Id. at 717, 483 S.E.2d at 434 (quoting
State v. Olson, 330 N.C.
557, 564, 411 S.E.2d 592, 595 (1992)). Our Supreme Court has
stated that:
In considering a motion to dismiss, the trial
court must analyze the evidence in the light
most favorable to the State and give the State
the benefit of every reasonable inference from
the evidence. The trial court must also
resolve any contradictions in the evidence in
the State's favor. The trial court does not
weigh the evidence, consider evidence
unfavorable to the State, or determine any
witness' credibility.
State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001)
(citations omitted).
Defendant was charged with two counts of robbery with a
dangerous weapon. The essential elements of robbery with adangerous weapon are: “(1) an unlawful taking or an 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, (3) whereby the life of a person is endangered or
threatened.”
State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518
(1998).
In the present case, several witnesses testified to
defendant's involvement in the robbery. Ruth testified that she
and Frank were robbed by three assailants, one of whom pointed a
firearm at Frank's head, took her purse, and drove away in her
vehicle. Courtney Watlington, who admitted to taking part in the
robbery, testified that defendant pointed a firearm at Frank while
attempting to rob him and removed Frank's wallet. Asaac Walker,
who was also at the robbery, testified that he saw defendant with
a firearm. Thus, the State presented sufficient evidence for a
jury to find that defendant used a firearm to rob Frank and Ruth.
Although defendant cites evidence tending to contradict the State's
witnesses, as well as inconsistencies in the State's evidence,
“'contradictions and inconsistencies do not warrant dismissal; the
trial court is not to be concerned with the weight of the
evidence.'”
State v. Williams, 355 N.C. 501, 579, 565 S.E.2d 609,
654 (2002) (
quoting State v. Lee, 348 N.C. 474, 488, 501 S.E.2d
334, 343 (1998)). Accordingly, in viewing the evidence in the
light most favorable to the State, a reasonable mind could infer
from the evidence that defendant committed the offense of robbery
with a dangerous weapon. This assignment of error is overruled. In his final assignment of error, defendant argues that he
received ineffective assistance of counsel when his counsel (1)
failed to call witnesses who could have testified as to defendant's
alibi; (2) failed to present any arguments to support his motion to
dismiss; (3) neglected to inform defendant of the contents of a
hearing held in his absence; (4) failed to exploit witnesses
inconsistencies during cross-examination; and (5) failed to
adequately prepare for trial.
“The accepted practice is to raise claims of ineffective
assistance of counsel in post-conviction proceedings, rather than
direct appeal.”
State v. Dockery, 78 N.C. App. 190, 192, 336
S.E.2d 719, 721 (1985). This Court will review a defendant's
ineffective assistance of counsel claims “brought on direct review
[only] when the cold record reveals that no further investigation
is required, i.e., claims that may be developed and argued without
such ancillary procedures as the appointment of investigators or an
evidentiary hearing.”
State v. Fair, 354 N.C. 131, 166, 557 S.E.2d
500, 524 (2001).
Here, defendant's claim of ineffective assistance of counsel
cannot be determined without further development of the record.
There is an insufficient showing in the record as to the contents
of the testimony which would have been provided by defendant's
witnesses. Accordingly, the best course of action is for defendant
to make a motion for appropriate relief and a hearing held on
whether he received effective assistance of counsel. Once there is
a record developed, this Court can review it by way of a petitionfor writ of certiorari.
We finally note that the trial court erred in sentencing
defendant. Defendant was sentenced to two consecutive terms of
imprisonment, with 167 months as the minimum term and 210 months as
the maximum term for each conviction. In both judgments, the trial
court determined that defendant should be sentenced from the
aggravated range of punishment. However, defendant's sentence for
robbery with a dangerous weapon is outside the aggravated range of
punishment for a Class D, Level IV felony. There appears to be no
error in sentencing in defendant's other judgment, 01 CRS 23286,
because the robbery with a dangerous weapon charge was enhanced by
defendant's status as a habitual felon. In that judgment,
defendant was sentenced as a Class C, Level IV felon, and
defendant's sentence was within the aggravated range of punishment
for that class and level of offense. Accordingly, the sentence is
vacated in 01 CRS 23287 and remanded for resentencing.
No error in part; vacated in part; and remanded for
resentencing in part.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
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