An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-282

NORTH CAROLINA COURT OF APPEALS

Filed: 07 December 2004

STATE OF NORTH CAROLINA

v .                         Mecklenburg County
                            No. 02 CRS 244566-71
EDWIN JOHNSON

    Appeal by defendant from judgment entered 13 July 2003 by Judge Robert P. Johnston in Mecklenburg County Superior Court. Heard in the Court of Appeals 20 October 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Thomas R. Miller, for the State.

    William D. Auman, for the defendant-appellant.

    STEELMAN, Judge.

    In the early morning of 22 June 2002, defendant, Shelton Sapp (Sapp), Patrick Beckham (Beckham), and a third man were walking down Alpha Street in Charlotte when they saw two men, Jason Mullis (Mullis) and George Cole (Cole)(strangers to defendant and his companions), sitting on the front stoop of a small house. Beckham spoke with the two men while his three companions stood by. Defendant and his companions then went on their way, and Cole and Mullis went back inside. Defendant testified that Beckham told Sapp that the Cole and Mullis had drugs inside the house, and that Sapp decided to rob them. Sapp had produced a pistol, and Beckham was holding a shotgun. Defendant further testified that Sapp entered the house through the front door, which was cracked open,and then defendant heard what he believed at the time to be three shots. In fact, Sapp had shot Mullis three times, and he had shot Cole once. According to defendant, upon hearing the shots he ran to the house. Mullis and Cole both lay on the floor, where they were stepped on by the assailants as they ransacked the house in search of money. Both Mullis and Cole testified that they believed there were four men who participated in the robbery (Mullis testified that he heard four distinct voices as he lay on the floor, Cole testified that he saw four men enter the house one after the other). Defendant maintains that there were only three men there, Sapp, Beckham and himself. Defendant claims he never entered the house, but merely stood in the open doorway.
    Robin Jenkins (Jenkins) was asleep in a back room when the incident began. He was awoken by Sapp kicking his leg, then he was hit in the face by Sapp with a pistol. Jenkins testified that three separate men entered his room that night, each of whom demanded money, and he believes he heard four distinct strange voices in the house. Hundreds of dollars in cash was taken by the assailants as they ransacked the house and checked the pockets of Mullis and Cole. A bag of marijuana was also taken. Sapp found keys to Cole's new pickup truck and threw them to defendant, asking him to bring the truck around. Defendant complied and the men fled. Defendant testified that he ran away from the house after he brought the truck around, and that Sapp and Beckham drove off in the truck. Defendant further testified that he saw Sapp and Beckham later that morning, and that they all smoked some of themarijuana taken from the house. Sapp testified, and claimed that defendant and Beckham were not there at the robbery that night, that he and someone known as Jay Black were the only two present. Beckham refused to testify, citing his Fifth Amendment privilege against self-incrimination. No fourth man was ever charged with any crime resulting from the events of that morning. Defendant subsequently discovered that there was a warrant out for his arrest, and he spoke with police on two occasions by phone, but would not turn himself in. He was finally apprehended attempting to flee out the back door of his family's house.
    Defendant was convicted 13 June 2003 of two counts of assault with a deadly weapon inflicting serious injury, two counts of robbery with a dangerous weapon, one count of attempted robbery with a dangerous weapon, and one count of first degree burglary. The trial court consolidated the three robbery convictions and the first-degree burglary conviction into one judgment and imposed an active sentence of 69 to 92 months. The assault charges were consolidated into one judgment imposing a sentence of 26-41 months, which ran consecutive to the first judgment, and was suspended, with defendant placed on probation. Defendant appeals.
    In defendant's first assignment of error, he argues that the trial court committed plain error in failing to make inquiry into the matter of a juror who was observed falling asleep during the trial. We disagree.
    The appellate courts of this state only apply plain error analysis, when properly presented, to issues of “jury instructionsand evidentiary matters in criminal cases.” State v. Freeman, __ N.C. App. __, __, 596 S.E.2d 319, 322 (2004), citing State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109 (1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999). Because defendant's argument addresses neither, we decline to review it. This assignment of error is without merit.
    In his second assignment of error, defendant argues that the trial court erred in failing to allow the hearsay statement of a co-defendant into evidence as a statement against penal interest pursuant to Rule 804(b)(3) of the North Carolina Rules of Evidence. We disagree.
    “'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C.R. Evid. Rule 801(c). Hearsay evidence is not admissible unless allowed by statute or the Rules of Evidence. N.C.R. Evid. Rule 802. Rule 804 provides exceptions for the admissibility of hearsay in certain circumstances when the declarant is unavailable. Rule 804(a)(1) states that a declarant is “unavailable” under the rule if he is exempted by ruling from the court from testifying due to privilege. Rule 804 further states:
    (b) Hearsay exceptions. _ The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

        (3) Statement Against Interest. _ A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him againstanother, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability is not admissible in a criminal case unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Admission of evidence under the provision of Rule 804(b)(3) concerning criminal liability requires satisfying a two prong test: 1) the statement must be against the declarant's penal interest, and 2) the trial judge must find that corroborating circumstances insure the trustworthiness of the statement. State v. Kimble, 140 N.C. App. 153, 157, 535 S.E.2d 882, 885 (2000). In order for a hearsay statement to pass the first prong of the test, it must actually subject the declarant to criminal liability, State v. Singleton, 85 N.C. App. 123, 129, 354 S.E.2d 259, 263 (1987), and it “also must be such that the declarant would understand its damaging potential” (i.e. that a reasonable man in declarant's position would not have said it unless he believed it to be true). State v. Tucker, 331 N.C. 12, 25, 414 S.E.2d 548, 555 (1992).
    In order to satisfy the second prong, there needs to be “some other independent, nonhearsay indication of the trustworthiness” of the statement. State v. Artis, 325 N.C. 278, 305-06, 384 S.E.2d 470, 485 (1989), vacated and remanded on other grounds by Artis v. North Carolina, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990). “The determination of whether the trustworthiness of the statement is indicated by corroborating circumstances is a preliminary matter to be decided by the trial judge.” State v. Wardrett, 145 N.C. App. 409, 415, 551 S.E.2d 214, 218 (2001)(citation omitted).         “[B]road discretion [must] be afforded the trial judge in determining the reliability of the declaration and the declarant by consideration of such factors as spontaneity, relationship between the accused and the declarant, existence of corroborative evidence, whether or not the declaration had been subsequently repudiated and whether or not the declaration was in fact against the penal interests of the declarant.”

Wardrett, 145 N.C. App. at 415, 551 S.E.2d at 218-19 (2001)(citation omitted). “The facts and circumstances surrounding the commission of the crime and the making of the declaration must corroborate the declaration and indicate the probability of trustworthiness.” Haywood, 295 N.C. at 730, 249 S.E.2d at 442. The existence of a motive for declarant to have offered a false statement will be evidence arguing against its admission. Id. at 729, 249 S.E.2d at 441.
    In the instant case the trial court determined that the statement of Beckham failed to meet the requirements for admission under Rule 804(b)(3). Specifically, the trial court found that the statement was not of “such a nature that a . . . reasonable man, in his position, would not have made the statement, unless he believed it to be true,” that it didn't “possess the indicia of trustworthiness, which would otherwise make it admissible,” that the “statement speaks for itself. Certainly seems to . . . exculpate him from criminal conduct,” and that considered in light of all the circumstances it was not inherently trustworthy.
    The statement does appear to be an attempt by Beckham to distance himself from the acts of that night, and place the blamesquarely and solely on Sapp. In the statement Beckham tells Detective Dozier that he attempted to talk Sapp out of committing the crime; that he lied to Sapp, telling him that the victims had a gun, in an attempt to deter Sapp from his intended action; that he went along with what Sapp wanted because “he might f*** around and go in there and do that [shoot the victims] and come back out and get us [shoot us] or whatever,” and again: “So I'm thinking if I run right now and try to get away he might do me the same way in the back;” that he was drunk (and possibly high) and in a daze; that he jumped into the back of the “getaway” truck because he was afraid that people would see him there and “think I had something to do with this s***;” and that he “had no choice but to go with them . . . .” Beckham then told the detective that he didn't want to have anything to do with the events of that night, that he did not take anything from the victims, and never received any of the stolen money. Finally, he also told the detective that he did not have anything to do with some other charges that Sapp's cousin had apparently implicated him in, and when the detective said: “If what you say is true... uh, you know.. I think that these things work themselves out. If you don't have anything to do with it then you should be alright,” Beckham agreed with him.
    This statement provides ample evidence suggesting that Beckham was making the statement in an effort to insulate himself from criminal liability. It does not indicate that he made the statement knowing that it would subject him to criminal prosecution, and thus it fails the requirement that a “reasonableman in declarant's position would not have made the statement unless he believed it to be true.” Failing this requirement, defendant fails the first prong of the test for admission under Rule 804(b)(3), and the trial court did not err by excluding the statement. Williamson v. United States, 512 U.S. 594, 601, 129 L. Ed. 2d 476, 483 (1994)(“'The arrest statements of a codefendant have traditionally been viewed with special suspicion. Due to his strong motivation to implicate the defendant and to exonerate himself, a codefendant's statements about what the defendant said or did are less credible than ordinary hearsay evidence.'”)(citations omitted).
    We further note that our review of the record, including the evidence stated above, supports the trial court's finding that the statement also failed the second prong of the test, that corroborating circumstances insure the trustworthiness of the statement, thus the trial court also committed no abuse of discretion in excluding the statement based on this finding. This assignment of error is without merit.
    In his third assignment of error, defendant argues that the trial court erred in failing to allow the hearsay statement of a co-defendant into evidence pursuant to the Rule 804(b)(5) residual exception of the North Carolina Rules of Evidence. We disagree.
    Nowhere in the record is there evidence that defendant argued at trial for the admission of Beckham's statement under Rule 804(b)(5). Defendant's citations to the record in his brief do not support his argument, in violation of Rule 28(b)(6) and Rule 28(e). Having failed to raise this issue at trial, defendant may not now first raise it on appeal. N.C. R. App. P. Rule 10(b)(1); State v. Holliman, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685 (2002). This assignment of error is without merit.
    In his fourth assignment of error, defendant argues that the trial court erred in failing to dismiss all charges against defendant due to insufficiency of the evidence. We disagree.
    “Upon defendant's motion for dismissal, the question for the [trial court] is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.” State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)(citations omitted). Substantial evidence is relevant evidence that a reasonable person would find sufficient to support a conclusion. State v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 355 (1987)(citation omitted). When reviewing a motion to dismiss based on insufficiency of the evidence, this Court must
        view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve. . . . Once the court decides that a reasonable inference of defendant's guilt may be drawn from the circumstances, then “'it is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.'”

State v. Barnes, 334 N.C. 67, 75-6, 430 S.E.2d 914, 918-19 (1993)(citations omitted)(emphasis removed). “In addition, thedefendant's evidence should be disregarded unless it is favorable to the State or does not conflict with the State's evidence.” State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455 (2000)(citation omitted), cert. denied, Fritsch v. North Carolina, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).
    In the instant case it is undisputed that defendant was at the crime scene, and that he was aware of Sapp's intent before he went to the crime scene. Defendant testified that upon hearing the shots, instead of running away from the danger and the crime being committed, he ran to the house. Defendant retrieved the “getaway” car, and rejoined Sapp and Beckham after the crime to smoke marijuana that was stolen from the victims. All that is required for conviction under the theory of acting in concert is that defendant joined in the purpose of committing a crime, and that defendant is present, actually or constructively, at the commission of the crime. State v. Barnes, 345 N.C. 184, 233, 481 S.E.2d 44, 71 (1997)(citations omitted). If the State proves this, then defendant “is also guilty of any other crime committed by the other in pursuance of the common purpose . . . or as a natural or probable consequence thereof.” Id.
    There was plenary evidence, when reviewed in the light most favorable to the State, for the trial court to submit the issue to the jury. It was then up to the jury to weight the evidence and render their verdict, which they did. This assignment of error is without merit.
    NO ERROR    Judges CALABRIA and GEER concur.
    Report per Rule 30(e).

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