An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-679

NORTH CAROLINA COURT OF APPEALS

Filed: 4 March 2003

STATE OF NORTH CAROLINA

v .                         Union County
                            No. 01 CRS 53844
                             01 CRS 53896
PRENTIS RENARDA ROBINSON

    Appeal by defendant from judgments entered 6 March 2002 by Judge Sanford L. Steelman, Jr. in Union County Superior Court. Heard in the Court of Appeals 29 January 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Sandra Wallace-Smith, for the State.

    James M. Bell for defendant-appellant.

    TYSON, Judge.

    A jury found Prentis Renarda Robinson (“defendant”) guilty of making a false report concerning a destructive device after calling the district attorney's office and making a false report concerning a destructive device after calling the Clerk of Superior Court's office. Defendant was sentenced to two consecutive terms of ten to twelve months each. Defendant appeals.

I. Background
    Defendant was convicted of assault on a female and placed on probation on 5 September 2001. After speaking with a probation officer, defendant requested and was allowed to speak with the trial judge. Defendant contended that his case should have been dismissed. Defendant went to the district attorney's office andpersonally told employee Kimberly Laney that he should not be on probation. Defendant continued to call the office and talked with Ms. Laney again that day. Defendant was told to come to court the next day, and request to speak to the judge.
    On 7 September 2001, Ms. Laney received a call from a male caller who stated that he had eight sticks of dynamite in the courthouse that would go off at 10:00 a.m. Based on the prior telephone conversations with defendant, Ms. Laney identified the voice on the telephone to be that of defendant.
    Trisha Simpson received a call from a male caller at the clerk of court's office later that day. The caller stated that this was the second call regarding a bomb in the building. Later that day, Ms. Simpson received yet another call from the same man who told her that he was “not kidding” about the bomb in the building. When she stated that she had informed someone and nothing had happened, the caller became irritated and hung up. Ms. Simpson identified defendant as the caller.
    Union County Deputy Sheriff David Linto investigated the bomb threats. After being told by Ms. Laney that defendant had made the threats, Detective Linto encountered defendant in a ten by ten office in the Union County Courthouse speaking with Sergeant Allen Burns, a bailiff. Detective Linto testified that defendant was sitting in the chair closest to an open door and was told that he was not under arrest. Detective Linto asked defendant whether they could talk for a few minutes and defendant agreed because he was waiting for court to reconvene.    Detective Linto and defendant discussed the threat phoned in to the district attorney's office and defendant's actions the previous day. Detective Linto asked whether defendant had called in the threats. Defendant stated, “You're not going to trick me into admitting anything. You must think I'm stupid.” With the door remaining open and defendant unsupervised, Detective Linto left the room and went down the hall to retrieve the report regarding the second bomb threat. While Detective Linto was talking with other deputies in the hallway, defendant left the room and visited the restroom and water fountain. Defendant then walked up to Detective Linto and re-engaged him in conversation. Defendant asked whether this was a serious charge. When defendant went to the elevator and pressed the call button, Detective Linto placed him under arrest.
    Defendant was transported to the Sheriff's Department where he was placed into a room while Detective Linto retrieved a tape recorder and a Miranda form. Upon returning to the room, Detective Linto placed the tape recorder on the table. Without questioning, defendant began making utterances and spoke “rambling” words which were recorded by Detective Linto. After defendant stopped “rambling”, Detective Linto informed defendant of his Miranda rights. Defendant invoked his right to an attorney and the questioning of defendant immediately ended. The tape recording of defendant was played for Ms. Simpson and she identified defendant as the caller.
    On 10 September 2001, Robert Rollings of the Union CountySheriff's Office went to the jail to speak with defendant. Sergeant Rollings had known defendant for twenty-three years and had several messages from defendant requesting Rollins to contact or visit him. Sergeant Rollins informed defendant of his Miranda rights which he waived by signing the Miranda form. Defendant told Sergeant Rollins that he called the district attorney's office and said “You shouldn't treat people this way or somebody might drop a bomb on you.” Defendant also said, “Y'all are going to mess around and make Union County . . . have something like an Oklahoma City bombing.”
    Defendant did not move to suppress any statements until Detective Linto took the stand. After a voir dire hearing, the trial court found that the statements and tape recording made prior to defendant being given his Miranda warnings were admissible. The court found that defendant was not “in custody” for purposes of Miranda while at the courthouse and that statements made while defendant was at the police station were not as a result of questioning by law enforcement. When Sergeant Rollins took the stand, defendant moved to suppress statements he made to Rollins. The trial court denied the motion finding that defendant had waived his Miranda rights, prior to making the statements.
II. Issues
    Defendant contends the trial court erred: (1) in finding defendant was not “in custody” while at the courthouse, (2) in admitting statements of defendant prior to being given his Miranda warnings at the courthouse, (3) in admitting portions of the taperecording made by Detective Linto, (4) in admitting identification testimony by Simpson, (5) in admitting statements he made to Sergeant Rollings, and (6) in denying defendant's motions to dismiss and judgment notwithstanding the verdict.
III. Statements at the Courthouse
    Defendant contends that he was “in custody” while at the courthouse and that the trial court erred in admitting into evidence statements made there. We disagree.
    Our review of a determination of whether an interrogation is conducted while a person is in custody is de novo. State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001).
        [B]ased on United States Supreme Court precedent and the precedent of this Court, the appropriate inquiry in determining whether a defendant is “in custody” for purposes of Miranda is, based on the totality of the circumstances, whether there was a “formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.”

Id. at 339, 543 S.E.2d at 828. The trial court must determine “whether a reasonable person in defendant's position, under the totality of the circumstances, would have believed that he was under arrest or was restrained in his movement to the degree associated with a formal arrest.” Id. at 340, 543 S.E.2d at 828. The intent of the officer is not relevant unless conveyed to defendant in some manner. Id.
    
Detective Linto testified that he told defendant multiple times that he was not under arrest. Detective Linto asked defendant whether they could talk and defendant said yes. The door remained open and defendant was seated nearest the door. WhenDetective Linto left the room, defendant was left alone with the door open and was told that he could stay or he could leave. Defendant voluntarily left the room, went to the bathroom, and went to the water fountain unaccompanied. Defendant voluntarily walked up to Detective Linto and reinitiated their conversation. We hold that defendant was not in custody for the purposes of Miranda based on the totality of the circumstances. If defendant was not in custody, statements he made were properly admitted at trial. Id. These assignments of error are overruled.
IV. Tape Recorded Statement
    Defendant contends the trial court erred in admitting the tape recording made at the sheriff's office prior to defendant being given his Miranda warnings and in admitting Simpson's pre-trial identification of defendant based upon the recording. Defendant argues that, because defendant was in custody at the time the recording was made and no warnings given, the statements are inadmissible. We disagree.
    The heart of Miranda is custodial interrogation by law enforcement. State v. Ladd, 308 N.C. 272, 280, 302 S.E.2d 164, 170 (1983). The United States Supreme Court defined interrogation as “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 308 (1980). Although defendant was in custody, the trial court found his statements were “not in response to any questioningby Detective Linto, and are admissible.” Defendant does not argue on appeal that this finding is in error. We hold that the trial court did not err in admitting the tape recording of defendant's statements made prior to being given his Miranda warnings. As the recording was admissible, there was no error in allowing the identification of defendant by Ms. Simpson based upon the tape. These assignments of error are overruled.
V. Statements to Rollins
    Defendant contends the trial court erred in admitting into evidence defendant's statements made to Sergeant Rollins. Defendant contends that he did not understand that statements made to a life-long acquaintance would be used against him.
    After a voir dire hearing, the trial court found that defendant freely and voluntarily waived his Miranda rights after being informed of them. “[T]he trial court's findings of fact '“are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.”'” Buchanan, 353 N.C. at 336, 543 S.E.2d at 826 (citations omitted). Although defendant had previously asked for an attorney, defendant independently initiated and requested contact with Rollins after asserting his right to counsel. Rollins informed defendant of his rights and defendant signed a waiver. Defendant does not contend that Rollins failed to read him his rights or that he did not sign them. We hold that the trial court did not err in finding that defendant waived his Miranda rights. Defendant's statements to Rollins are admissible. This assignment of error is overruled.
VI. Motion to Dismiss
    Defendant contends the trial court erred in denying his motion to dismiss the charges relating to the bomb threat made to the Clerk's Office and denying his motion for judgment notwithstanding the verdict. We disagree.
    A motion to dismiss should be denied when, reviewed in a light most favorable to the State, the State presents sufficient evidence of every element of the crime charged. State v. Powell, 299 N.C. 95, 98-99, 261 S.E.2d 114, 117-18 (1980). 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). The elements of making a false report concerning a destructive device in a public building are: (1) falsely reporting (2) by any means of communication (3) to any person (4) that “there is located in any public building any device designed to destroy or damage the public building by explosion, blasting, or burning” (5) knowing or having reason to know the report is false. N.C. Gen. Stat. § 14-69.1(c) (2001).
    Ms. Simpson testified that on 7 September 2001, a male called the Union County clerk's office and stated that it was the second call about the bomb and that if she wanted to save anyone she needed to tell someone about it. The same caller called back approximately an hour and fifteen minutes later and stated that this was the last warning. Ms. Simpson continued to talk to the man until he became irritated and hung up the telephone. On that afternoon, Ms. Simpson was played a tape recording from which sheidentified one of the voices as the caller. The voice on the tape was that of defendant. Further, the caller to the clerk's office stated that call was the second call regarding a bomb in the building. Defendant was identified as the caller to the district attorney's office also located in the courthouse.
    This evidence, taken in a light most favorable to the nonmoving party, is sufficient to survive a motion to dismiss and a motion for judgment notwithstanding the verdict. The trial court did not err in denying defendant's motions. These assignments of error are overruled.
VII. Conclusion
    The trial court did not err: (1) in concluding that defendant was not “in custody” for purposes of Miranda while at the courthouse and admitting those statements during the trial; (2) in admitting the tape recording taken prior to defendant being read his Miranda rights or in allowing the identification of defendant based on that recording; (3) in admitting statements defendant made to Rollins, and (4) in denying defendant's motion to dismiss and motion for judgment notwithstanding the verdict.
    No error.
    Judges TIMMONS-GOODSON and LEVINSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***