Appeal by defendant from judgments entered 15 October 2002 by
Judge Claude S. Sitton in Rutherford County Superior Court. Heard
in the Court of Appeals 20 September 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Michelle B. McPherson, for the State.
William D. Auman, for defendant-appellant.
HUDSON, Judge.
On 15 October 2002, a jury convicted defendant of felonious
breaking and entering, larceny, and possession of stolen goods.
Defendant appeals the conviction, and for the reasons below, we
find no error.
On the evening of 15 December 2001, someone broke into the
Toney family home in Ellenboro, NC and stole several items. No one
was home at the time of the break-in. Blank checks were among the
items taken and the bank later called Mrs. Toney to inform her that
some of the stolen checks had been used at local stores. Detective
Phillip Bailey of the Rutherford County Sheriff's Department
investigated the case. During the investigation, Detective Bailey
developed information on April Hembree, defendant's girlfriend, and
issued a warrant for her arrest. The detective also had
information about defendant and wished to speak with him as well. The evidence tends to show that about four months after the
break-in, April Hembree was apprehended and the arresting officer
contacted Detective Bailey. Defendant was with Ms. Hembree and
Detective Bailey asked defendant to come and speak with him and
defendant agreed. When defendant arrived at the Sheriff's
Department, Detective Bailey gave him
Miranda warnings even though
he was not in custody.
At trial, the detective testified that during their
conversation, defendant confessed to the crime at the Toney home.
The detective typed up the confession and allowed defendant to read
it and defendant requested that the following statement be added:
“Brian Travis Kimbrell states he takes full responsibility for the
crime of anything April Renee Hembree has done.” After this
statement was added, defendant signed the confession. The
confession detailed how defendant and Hembree had broken into the
Toney home and what they had taken, and how after leaving the Toney
home, defendant went with Hembree when she passed a stolen check at
the Goody's store in Shelby. Detective Bailey also testified that
he had a surveillance photo of defendant from the Goody's in Shelby
which he had shown defendant during their interview. Defendant's
confession was admitted into evidence at trial without objection.
Co-defendant Hembree also signed a confession after Detective
Bailey interviewed her. Her statement, which was taken before
defendant's, was consistent with defendant's description of the
crime. At trial, Hembree testified for the defense. She claimed
that she was solely responsible for the Toney break-in but thatdefendant was with her when she passed the stolen checks. When
confronted by the State with her confession, which said that both
she and defendant participated in the break-in, she said that she
had not seen the statement before. Defendant did not offer any
additional evidence aside from Hembree's testimony.
First, defendant contends that the trial court erred by
allowing Detective Bailey's testimony regarding the surveillance
photo of the defendant. Defendant maintains that his statutory
discovery rights were violated, resulting in a Sixth Amendment
confrontation clause violation. In his trial testimony, detective
Bailey explained that while questioning defendant, he showed him a
surveillance photograph taken at the Goody's store in Shelby, NC,
where one of the stolen Toney checks was passed. The detective
testified that defendant admitted the photo depicted him. The
defense objected and, after the jury was excused, explained that
the photograph had not been provided to them during discovery. The
court asked whether a discovery order had been entered and defense
counsel explained that one had not, that the defense relied on the
district attorney's open file policy and the understanding that all
discoverable material would be handed over to the defense. The
prosecutor then explained that the photograph had not been turned
over because it was not in the file.
Defendant argues that the photos were within the possession of
the state and that N.C. Gen. Stat. § 15A-903 (a) (2001) required
the State to turn over the photographs. The State argues that
because there was no discovery order, it had no duty to providediscovery. We conclude that there was no error.
Our Supreme Court has held that even where the State failed to
comply with statutory discovery and the trial court could have
imposed sanctions, such a decision is within the discretion of the
trial court and will only be reversed for abuse of discretion.
State v. Carson, 320 N.C. 328, 336, 357 S.E.2d 662, 667 (1987). In
Carson, the Court held that even though the State undertook to make
voluntary discovery, once it responded to the voluntary discovery
request, it was as if the State was under an order of the court.
Id. Thus, the trial court could have invoked the sanctions of
N.C.G.S. § 15A-910 when the State failed to produce a statement
of a co-defendant to the defense.
Id. However, because the court
has the discretion to determine which, if any, sanctions to apply,
the Court did not reverse the trial court, stating that even though
it did “not approve” of the State's discovery violation, it could
not say that the trial court's failure to impose sanctions was an
abuse of discretion.
Id at 337,
357 S.E.2d at 667.
It is well-established that reversal for abuse of discretion
requires a showing that the trial court's ruling was so arbitrary
that it could not have been the result of a reasoned decision.
State v. Gladden, 315 N.C. 398, 412, 340 S.E.2d 673, 682 (1986).
In the present case, the court questioned both defense counsel and
the district attorney out of the presence of the jury about why the
photograph had not been turned over to the defense. As the Court
did in
Carson, we decline to say that the trial court's failure to
find discovery violations and impose sanctions was an abuse ofdiscretion here. Further, in light of defendant's confession and
the other evidence against him, we fail to see how any error here
could have prejudiced defendant. Thus, we overrule this assignment
of error.
Defendant also contends that the trial court committed plain
error in failing to declare a mistrial after testimony that
defendant and co-defendant were being investigated in five other
similar crimes came in. We disagree. In support of this argument,
defendant cites cases where the State's introduction of such
evidence was plain error. These cases are inapposite as the State
did not introduce the testimony regarding the other offenses here.
The testimony at issue came from Detective Bailey during cross-
examination by the defense. Defense counsel was seeking to
establish that defendant only confessed in order to shield his
girlfriend, Hembree, from prosecution.
The transcript reveals that just prior to the detective's
mentioning the other crimes, the State asked to address the court
outside the presence of the jury. The court responded that it only
ruled on objections and allowed defense counsel to continue.
Defense counsel did not object, but directed Bailey to respond, at
which time he revealed his investigation of other crimes possibly
involving defendant. The court then excused the jury from the
room and asked the defense if they intended to raise this issue and
if defense counsel had defendant's permission to bring in this
information. Defense counsel responded that he did intend to bring
it in, that they felt it was inevitable, and that he had hisclient's permission to bring it in. The court asked defendant
directly if he wanted to pursue this strategy and he confirmed that
his attorney had his permission to ask these questions. Defendant
did not ask for a curative instruction until the court invited him
to, at which time he requested it and the court instructed the jury
to disregard detective Bailey's testimony regarding investigation
of defendant's involvement in similar crimes.
Our Supreme Court has held that reference to an unrelated
charge against a defendant was not grounds for a mistrial where the
court cured any error by giving a curative instruction.
State v.
Thomas, 350 N.C. 315, 344, 514 S.E.2d 486, 503 (1999). Where the
trial court instructs the jury to disregard a statement, the
presumption is that it will disregard the testimony.
State v.
McCraw, 300 N.C. 610, 620, 268 S.E.2d 173, 179 (1980). If there
is no indication that the jury did not disregard the statement,
defendant is not entitled to a mistrial.
State v. Marine, 135 N.C.
App. 279, 285, 520 S.E.2d 65, 69 (1999). Here, as in
Marine, there
is no indication that the jury did not disregard the statement.
The jury in defendant's trial indicated by a show of hands that
they would follow the court's instructions. Furthermore, defendant
asks us to review this issue for plain error. Reversal of the
trial court is rarely warranted for plain error and “the appellate
court must examine the entire record and determine if the
instructional error had a probable impact on the jury's finding of
guilt.”
State v. Odom, 307 N.C. 655, 661; 300 S.E.2d 375, 379
(1983) (internal citations omitted). Here, error, if any, wouldnot constitute plain error in light of the curative instruction as
well as the other evidence of defendant's guilt.
Defendant also assigns error to the trial court's failure to
dismiss all charges against him. Defendant contends that direct
and physical evidence was insufficient to support his conviction as
a matter of law. We disagree. Defendant correctly asserts that
the test for sufficiency of the evidence is whether there is
substantial evidence of all of the elements of the offense charged
such that a rational fact-finder could find beyond a reasonable
doubt that the defendant committed the offense.
State v. Thompson,
306 N.C. 526, 532, 294 S.E.2d 314, 318 (1982).
In considering a motion to dismiss for insufficiency of the
evidence, the court must evaluate the evidence in the light most
favorable to the State, giving the State all reasonable inferences
from the evidence.
State v. Robinson, 355 N.C. 320, 336, 561
S.E.2d 245, 256 (2002). Defendant contends that the only evidence
here was the surveillance photo and the testimony of Detective
Bailey, whose credibility the defense questions. However,
defendant fails to mention that he confessed to the crimes of which
he was convicted. Defendant further fails to mention that
co-defendant Hembree also signed a confession which implicated him,
and which was introduced to impeach Hembree after she gave
testimony contradicting it. The sufficiency of the evidence
standard requires, “that the State's evidence . . . [be] existing
and real, not just seeming or imaginary . . . . [A]nything more
than a scintilla of evidence is 'substantial evidence.'”
State v.Smith, 40 N.C. App. 72, 78, 252 S.E.2d 535, 529 (1979) (internal
citations omitted). We conclude that the confessions of defendant
and co-defendant, along with the other evidence presented by the
State, constitute more than a “scintilla” of evidence. We conclude
that the trial court properly denied defendant's motion to dismiss
for insufficiency of the evidence.
No error.
Chief Judge MARTIN and Judge TIMMONS-GOODSON concur.
Report per Rule 30(e).
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