NO. COA03-227

NORTH CAROLINA COURT OF APPEALS

Filed: 06 January 2004

    Appeal by defendant from judgment entered 15 October 2002 by Judge Orlando F. Hudson in Durham County Superior Court. Heard in the Court of Appeals 20 November 2003.

    Roy Cooper, Attorney General, by Linda Kimbell, Assistant Attorney General, for the State.

    Winifred H. Dillon for defendant-appellant.

    STEELMAN, Judge.

    Defendant, Harold James Brandon, appeals convictions of first- degree kidnapping and first-degree burglary. For the reasons discussed herein, we find no error.
    The State's evidence tended to show that on 25 October 2000, Maurice Ashby was in a bedroom with his daughter, Daijah, helping her with her reading. Ashby's fiancée, Lakesha Whitted, was in the living room with their sleeping daughter, Myah. Suddenly, Ashby heard his two pit bulls barking in a “frantic” manner. Ashby went to the front door and saw three men approaching his home. One ofthe men, later identified as Jermaine Covington, asked Ashby if he sold puppies. Ashby replied that he did not. The barking dogs distracted Ashby and when he looked back at the three men, a different man had put a bandana around his face and pulled out a gun. The masked man told Ashby to get on the ground and then told Covington and the third man, later identified as defendant, to “go get it.” Covington and defendant went into the house while the masked man searched Ashby's pockets.
    Covington pointed a gun at Whitted, made her get on the floor, and told her not to look at him. Defendant began “rambling” through the house.
    Meanwhile, Carlos Corbett, Ashby's neighbor and a former police officer, had heard the commotion in Ashby's yard. He saw the masked man order Ashby to the ground. Corbett got a flashlight and shotgun and walked toward Ashby's home. He fired a shot in the air, yelling “Freeze! Police!” The masked man “froze up” and put the gun down. Ashby retrieved the gun and began to beat the masked man with it, while Corbett went inside the house. Ashby asked the masked man who had sent them. The masked man replied “Mann Wallace.”
    Upon hearing the gunshot, Covington and defendant attempted to escape through the windows, which were covered in plastic. One of them said “grab the kids.” After hearing that, Whitted attackedCovington, who had grabbed Daijah. While moving toward the door, defendant picked up Myah. Corbett pointed his gun at Covington and defendant and told them that he would not let them leave the house with the children.
    Ashby then looked up and saw Covington in the doorway. Ashby pointed the gun at Covington, who held Daijah up in front of him. Ashby ran up to Covington and began to hit him with the gun. While Ashby was fighting with Covington, the masked man ran away. Corbett fought with defendant, who was forced to release Myah. Whitted grabbed both little girls and ran to Corbett's home. Corbett then came out of Ashby's home with defendant. Ashby and Corbett asked the men who had sent them. They replied that “Mann Wallace” had sent them. Ashby and Corbett held both men at gunpoint until the police arrived.
    Officer Charles Kirkman of the Durham City Police Department arrived on the scene and arrested Covington and defendant.
    Defendant did not present any evidence.
    Defendant was charged with two counts of second-degree kidnapping and two counts of attempted robbery with a dangerous weapon. The case initially went to trial in July 2001, but ended in a mistrial. Subsequently, defendant was charged in superceding indictments with two counts of first-degree kidnapping and one count of first-degree burglary. The jury found defendant guilty oftwo counts of first-degree kidnapping, two counts of attempted robbery with a dangerous weapon (one as to Ashby and one as to Whitted) and first-degree burglary. Defendant was sentenced in a series of consecutive judgments totaling 617 to 788 months in prison. Defendant appeals.
    In his first assignment of error, defendant argues that the trial court erred in allowing Ashby to testify to statements made by the masked man, an unidentified person. We disagree.
    An assertion of one other than the presently testifying witness is hearsay. Livermon v. Bridgett, 77 N.C. App. 533, 335 S.E.2d 753 (1985), cert. denied, 315 N.C. 391, 338 S.E.2d 880 (1986). “Hearsay is not admissible except as provided by statute or by [the Rules of Evidence].” N.C. Gen. Stat. § 8C-1, Rule 802 (2001). Rule 801(d)(E) of the North Carolina Rules of Evidence provides that “[a] statement is admissible as an exception to the hearsay rule if it is offered against a party and it is ... a statement by a coconspirator of such party during the course and in furtherance of the conspiracy.” N.C. Gen. Stat. § 8C-1, Rule 801 (d)(E) (2001).
    However, the State must establish a prima facie case of conspiracy for the declarations of a co-conspirator to be admissible. State v. Mahaley, 332 N.C. 583, 423 S.E.2d 58 (1992), cert. denied, 513 U.S. 1089, 130 L. Ed. 2d 649 (1995); State v.Brooks, 83 N.C. App. 179, 349 S.E.2d 630 (1986). A prima facie case of criminal conspiracy includes the following elements: (1) an agreement; (2) between two or more persons; (3) to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means. State v. Jackson, 103 N.C. App. 239, 244, 405 S.E.2d 354, 357 (1991), aff'd, 331 N.C. 113, 413 S.E.2d 798 (1992). The existence of a conspiracy may be established by direct or circumstantial evidence. State v. Lyons, 102 N.C. App. 174, 183, 401 S.E.2d 776, 781, cert. denied, 329 N.C. 791, 408 S.E.2d 527, aff'd, 330 N.C. 298, 412 S.E.2d 308 (1991). The essential elements of robbery with a dangerous weapon are: (1) the unlawful taking or attempted taking of personal property from another; (2) the possession, use or threatened use of “firearms or other dangerous weapon, implement or means;” and (3) danger or threat to the life of the victim. N.C. Gen. Stat. § 14-87(a) (2003); State v. Gibbons, 303 N.C. 484, 279 S.E.2d 574 (1981).
    The State presented evidence showing that the suspects conspired to commit armed robbery. This evidence included: (a) the men approaching Ashby's home together; (b) Covington telling the other two men to “go get it;” whereupon they entered Ashby's home; (c) Covington and defendant standing over Ashby while the masked man held a gun to Ashby's head; (d) the masked man going through Ashby's pockets while Covington and defendant ransacked the house;(e) all of the men stating that “Mann Wallace” had sent them; and (f) Whitted's statement, included in the record, which noted that one of the men put a silver handgun to Whitted's head while the other searched the house for money. This evidence was sufficient to show a prima facie case of criminal conspiracy to rob Ashby and his family. Consequently, the trial court did not err in allowing Ashby about testify to the statements of the masked man. This assignment of error is without merit.
    In his second and fourth assignments of error, defendant argues that the trial court erred in denying his motion to dismiss the charge of attempted armed robbery of Lakesha Whitted because he did not possess a weapon during the commission of the crime and because there was insufficient evidence that he perpetrated that offense. We disagree.
    In considering a defendant's motion to dismiss, the only issue for the trial court is whether there is substantial evidence of each essential element of the charged offense and of the defendant being the perpetrator. State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). The court must consider the evidence in the light most favorable to the State and give the State the benefit of everyreasonable inference from that evidence. State v. Jaynes, 342 N.C. 249, 274, 464 S.E.2d 448, 463 (1995), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996). Contradictions and discrepancies in the evidence are resolved in favor of the State. State v. Gibson, 342 N.C. 142, 150, 463 S.E.2d 193, 199 (1995).
    “An attempted robbery with a dangerous weapon occurs when a person, with the specific intent to unlawfully deprive another of personal property by endangering or threatening his life with a dangerous weapon, does some overt act calculated to bring about this result.” State v. Allison, 319 N.C. 92, 96, 352 S.E.2d 420, 423 (1987) (citations omitted).
    Defendant contends that there was no evidence that Whitted was endangered by any use of a dangerous weapon because there was no evidence that defendant had a gun. This is not correct. The State's Exhibit # 11, Whitted's statement to Detective Jackson, was received into evidence without objection and without limitation, and clearly noted that the person later identified as Covington held a silver handgun to her head while defendant searched the house for money.
    Defendant was convicted on an acting in concert theory. Under this theory, “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 inpursuit of the common plan.” State v. Golphin, 352 N.C. 364, 456, 533 S.E.2d 168, 228 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001) (quoting State v. Laws, 325 N.C. 81, 97, 381 S.E.2d 609, 618 (1989), sentence vacated on other grounds, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603 (1990)). A person is constructively present during the commission of a crime if he is close enough to provide assistance and encourage the actual execution of the crime. Id.; State v. Willis, 332 N.C. 151, 175, 420 S.E.2d 158, 169 (1992).
    In the instant case, defendant entered the Ashby home with Covington and actively searched the residence while Covington held a gun to Whitted's head. He was in close proximity to Covington and provided assistance during the attempted robbery. Therefore, even though there was no evidence that defendant actually possessed a weapon during the attempted robbery, there was evidence that a person with whom defendant was acting in concert used a gun during the attempted robbery.
    Further, there was evidence that defendant was one of the perpetrators of the attempted robbery. Although when on the stand, Whitted stated that she did not see defendant's face, both Ashby and Corbett testified that defendant was one of the men who broke into Ashby's home. Corbett also testified that defendant was trying to leave the house with Myah as a shield between himself andCorbett. Corbett wrestled with defendant and pulled him outside. Defendant was on the ground, being held at gunpoint when the police arrived and arrested him. The trial court did not err in refusing to grant defendant's motions to dismiss. These assignments of error are without merit.
    In his third assignment of error, defendant argues that the trial court committed plain error in failing to submit to the jury the lesser included offense of the attempted common law robbery of Whitted. We disagree.
    Defendant did not object to the trial court's submission of attempted robbery with a deadly weapon without a lesser included offense and assigns plain error. Plain error is an error “'so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'” State v. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118 (1999), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681 (2000) (quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988)).
    A trial court must instruct on a lesser included offense of the crime charged where there is evidence from which the jury could infer that the defendant had committed the lesser offense. State v. Redfern, 291 N.C. 319, 230 S.E.2d 152 (1976), overruled on othergrounds by State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993). However, when all the evidence tends to show that defendant committed the crime charged and did not commit a lesser included offense, the trial court is correct in refusing to charge on the lesser included offense. Id.; State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971). The use or threatened use of a dangerous weapon is not an essential element of common law robbery. State v. Moore, 279 N.C. 455, 183 S.E.2d 546 (1971).
    Defendant contends that the lesser included offense should have been submitted because there was no evidence that he used a dangerous weapon. As aforementioned, at trial, Whitted testified that one of the men had a gun and that she never saw a masked man. Whitted's statement to the police was that the person later identified as Covington held a gun to her head. Defendant introduced no evidence at trial. Therefore, all of the evidence presented as to the attempted robbery of Whitted was that Covington had a gun, which he pointed at Whitted. We find that the trial court did not commit plain error by failing to submit the lesser offense of common law robbery to the jury. This assignment of error is without merit.
    In his fifth and final assignment of error, defendant argues that the State failed to prove his five prior criminal convictions pursuant to N.C. Gen. Stat. § 15A-1340.14(f). We disagree.    Section 15A-1340.14(f) provides that:
A prior conviction shall be proved by any of the following methods:
    (1) Stipulation of the parties.
    (2) An original or copy of the court record of the prior conviction.
    (3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts.
    (4) Any other method found by the court to be reliable.

N.C. Gen. Stat. § 15A-1340.14(f) (2001). In this case, the State did not present original records or copies of records, nor did the trial court find that defendant's record was established by another “reliable method.” Therefore, the issue is whether there was a stipulation by the parties as to defendant's prior record.
    We recognize that the State's presentation of a prior record level worksheet is insufficient by itself to comply with section 15A-1340.14(f). See State v. Riley, ___ N.C. App. ___, 583 S.E.2d 379 (2003). In State v. Eubanks, 151 N.C. App. 499, 506, 565 S.E.2d 738, 743 (2002), this Court held that statements by defense counsel that he had seen the State's worksheet and had no objection to it could “reasonably be construed as a stipulation by defendant that he had been convicted of the charged listed on the worksheet.” (Quoting State v. Hanton, 140 N.C. App. 679, 690, 540 S.E.2d 376, 383 (2000)). Hanton held that defense counsel's statement that there was no disagreement about the defendant's prior convictions “may reasonably be construed as an admission by defendant that he had been convicted of other charges appearing on the prosecutor's work sheet.” Hanton, 140 N.C. App. at 690, 540 S.E.2d at 383.
    In both Eubanks and Hanton, counsels' lack of objection to the convictions shown on the worksheets were found to constitute a stipulation under section 15A-1340.14(f). In the instant case, the State presented a prior record level worksheet and described each conviction:
    [Prosecutor]: Judge, you have the defendant's prior record in front of you. But I would, as regards to sentencing, go through that with the Court because I think it's very important for the Court to know what process this defendant has gone through in his criminal history and why we're here today.
    Judge, when he was seventeen years old, he was charged and convicted of unauthorized use of a motor vehicle where he was given probation. He failed to comply with the conditions of probation; that probation was revoked.
    And then shortly thereafter, Judge, he was convicted of attempted breaking and entering and injury to real property. Went to prison and was paroled on December 3, 1993. And those accounts were in Durham County.
    And then, Judge, in 1994, he was convicted of felony breaking and entering in Wake County where he was given probation. And then shortly thereafter, Judge, he was also convicted of felony possession of burglary tools.
    And then after that sentence, he was convicted here in Durham County of robbery with a dangerous weapon in 1995, where he was given a fifty-three month minimum sentence and a seventy-three month maximum sentence.    While in the Department of Correction he escaped and was convicted of felony escape and that was in July of 1998, and was given a five to six month sentence to run at the expiration of the previous sentence. . . .
    Based on the fact that [defendant] was just released from prison for serving time on an armed robbery, had just been out one month and these occurred. I'm asking the Court to give him every day possible on every one of these offenses. . . .

In response to the State's assertions concerning defendant's record, defense counsel stated:
Your Honor, you've heard from the Assistant District Attorney that [defendant] has been incarcerated essentially most of his life. He has been in jail starting with two misdemeanor offenses at the age of 17. He received that fifty-three month sentence in 1995 and he is before you today[.]

Here, defense counsel affirmatively acknowledged, in broad, sweeping terms, defendant's criminal convictions and subsequent incarcerations. Based upon the detailed discussion of defendant's criminal convictions by the assistant district attorney, the broad acknowledgment of this record by defense counsel, and the lack of objection to any of defendant's convictions, we hold that defendant stipulated to the convictions shown on the worksheet. We further note that defendant does not contend before this Court that any of the convictions shown on the worksheet do not exist or that there was an error in the computation of his prior record. This assignment of error is without merit.    NO ERROR.
    Judges HUDSON and TYSON concur.
    Report per Rule 30(e).

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