In his first assignment of error, Defendant does not challenge
the admissibility of the evidence regarding the 12 July 2002
robbery under Evidence Rule 404(b),
(See footnote 1)
allowing for the admission of
evidence as to other crimes or bad acts for certain purposes.
Rather, Defendant contends that the trial court erred because such
evidence “was unduly prejudicial to the defendant.”
Because “the
scope of review on appeal is confined to a consideration of those
assignments of error set out in the record on appeal[,]” N.C. R.
App. P. 10(a), we look only to whether the evidence
regarding the
12 July 2002 robbery
was unduly prejudicial. Rule 403 of North Carolina's Evidence Code states that,
“[a]lthough relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.”
N.C. Gen. Stat. § 8C-1, Rule
403
. Whether to exclude relevant evidence under
Rule 403
falls
within the sound discretion of the trial court, and this Court
reviews the trial court's decision solely for an abuse of that
discretion.
State v. Sims, 161 N.C. App. 183, 190, 588 S.E.2d 55,
60 (2003). “A trial court may be reversed for an abuse of
discretion only upon a showing that its ruling was so arbitrary
that it could not have been the result of a reasoned decision.”
Id.
(quotation omitted). A trial court does not abuse its discretion
pursuant to Rule 403 where it “guard[s] against the possibility of
prejudice by instructing the jury to consider [admissible evidence]
only for” permissible purposes under Rule 404(b).
State v. Hyatt,
355 N.C. 642, 662, 566 S.E.2d 61, 74-75 (2002) (prior misconduct
not unduly prejudicial under Rule 403 where trial court gave
limiting instruction regarding permissible uses of Rule 404(b)
evidence);
State v. Lemons, 348 N.C. 335, 352-53, 501 S.E.2d 309,
320 (1998),
sentence vacated on other grounds, 527 U.S. 1018, 144
L. Ed. 2d 768 (1999) (same).
Here, Defendant did not except to the admissibility of the 12
July 2002 robbery evidence under Evidence Rule 404(b). Further,
the trial court gave the jury a lengthy limiting instructionregarding the evidence, stating, in part:
. . . I want to caution you, that that
evidence was received in this case, solely,
for the purpose of showing, if it does so
show, the identity of the person who committed
the crime charged in this case, if it was
committed.
And that there existed in the mind of
this defendant, a plan, scheme, system, or
design involving a particular crime charged in
this case.
If you believe this evidence concerning
[the 12 July 2002] incident[], you may
consider this evidence, but only for the
limited purpose for which it was received[.]
Given that the trial court guarded against the possibility of
prejudice by instructing the jury to consider the evidence
concerning the 12 July 2002 robbery only for limited, permissible
purposes under Evidence Rule 404(b), we hold that the trial court
did not abuse its discretion in admitting the evidence.
Hyatt, 355
N.C. at 662, 566 S.E.2d at 74-75.
In his next assignment of error, Defendant contends that the
trial court erred by admitting Rule 404(b) evidence of the 2 August
2002 robbery, “as such was unduly prejudicial.” Defendant did not
assign error to the admissibility of the evidence pursuant to Rule
404(b), and the trial court gave the same limiting instruction
quoted above as to the 2 August 2002 robbery evidence. Therefore,
for the reasons previously stated, the trial court did not abuse
its discretion in admitting the evidence.
Hyatt, 355 N.C. at 662,
566 S.E.2d at 74-75.
In his next assignment of error, Defendant contends that the
trial court erred in failing to remove a sitting juror who admittedthat he knew one of the State's witnesses, Detective Joel McNelly
of the Charlotte-Mecklenburg Police Department.
“The competency of jurors is a matter to be decided by the
trial judge. Decisions as to a juror's competency at the time of
selection and their continued competency to serve are matters
resting in the trial judge's sound discretion.”
State v. Harris,
283 N.C. 46, 48, 194 S.E.2d 796, 797 (citations omitted),
cert.
denied, 414 U.S. 850, 38 L. Ed. 2d 99 (1973).
The trial court's
discretionary power to regulate the
composition of the jury continues beyond
empanelment. It is within the trial court's
discretion to excuse a juror and substitute an
alternate at any time before final submission
of the case to the jury panel. These kinds of
decisions relating to the competency and
service of jurors are not reviewable on appeal
absent a showing of abuse of discretion . . ..
State v. McLaughlin, 323 N.C. 68, 101, 372 S.E.2d 49, 70 (1988),
vacated on other grounds, 494 U.S. 1021, 108 L. Ed. 2d 601 (1990);
see also State v. Conaway, 339 N.C. 487, 518, 453 S.E.2d 824, 844
(1995) (“Once a jury has been impaneled, any further challenge to
a juror is a matter within the trial court's sound discretion.”
(citing
State v. Harris, 323 N.C. 112, 123, 371 S.E.2d 689, 696
(1988))).
Here, one juror informed the bailiff that he knew Detective
McNelly, a witness for the State. The juror had attended a meeting
of the United Way Youth Education Council at which Detective
McNelly had given a presentation about gang activity. The juror
realized that he had had the limited contact with
Detective McNelly
only after Detective McNelly began testifying.
Upon learning ofthe prior contact and in the presence of the State and Defendant,
the trial court asked the juror “[w]hat if any effect would that
prior contact have upon you in your consideration of the evidence
in this case, including your weighing of the credibility of each
witness including, Detective McNelly?” The juror did “not think it
would have any negative effect. I think I can remain neutral and
weigh each person's testimony on its own merits.” The trial court
then asked whether “that prior contact [would] factor into your
mind in any way, so as to cause you to attribute any more or any
less credibility to the testimony of Detective McNelly in this
particular action[,]” to which the juror answered “No, sir.” The
trial court then asked whether the prior contact “caused you to
form any opinions about the case[,]” to which the juror responded
no. The trial court inquired into whether the juror “continue[d]
to have an open mind about the case[,]” to which the juror
responded yes. The trial court asked whether the juror “still
f[elt] as comfortable in serving on this case as you did
previously?” The juror said “I do. I wanted to make the Court
aware so whatever needed to happen could. If there's some protocol
or, something that's suppose to unfold. I feel like I can remain
objective. I feel like I've been that the whole time.” Finally
the trial court inquired if the juror was “satisfied that you can
still act in a manner that would be fair both the State and to this
Defendant,” to which the juror replied yes.
Given the minimal prior contact between the juror and
Detective McNelly and the lengthy colloquy the trial courtconducted to ensure the juror's objectivity and impartiality, it
cannot be said that the trial court erred, much less abused its
discretion, in denying Defendant's request to remove that juror in
favor of the alternate juror.
In his next assignment of error, Defendant contends the trial
court erred in failing to dismiss due to the insufficiency of the
evidence to support the crime charged.
When reviewing a motion to dismiss, we view “the evidence in
the light most favorable to the State, giving the State the benefit
of all reasonable inferences.”
State v. Scott, 356 N.C. 591, 596,
573 S.E.2d 866, 869 (citation omitted)
,
cert. denied, 537 U.S. 833,
154 L. Ed. 2d 50 (2002). If we find substantial evidence exists to
support each essential element of the crime charged and that
defendant was the perpetrator, it is proper for the trial court to
have denied the motion.
State v. Malloy, 309 N.C. 176, 178, 305
S.E.2d 718, 720 (1983). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.”
State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585,
587 (1984) (citing
State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164,
169 (1980)).
Here, Defendant was charged with robbery with a dangerous
weapon. Section 14-87 of North Carolina's General Statutes defines
robbery with a dangerous weapon as:
Any person or persons who, having in
possession or with the use or threatened use
of any firearms or other dangerous weapon,
implement or means, whereby the life of a
person is endangered or threatened, unlawfully
takes or attempts to take personal propertyfrom another or from any place of business,
residence or banking institution or any other
place where there is a person or persons in
attendance, at any time, either day or night,
or who aids or abets any such person or
persons in the commission of such crime, shall
be guilty of a Class D felony.
N.C. Gen. Stat. § 14-87 (2004). Therefore, to obtain a conviction
for robbery with a dangerous weapon pursuant to section 14-87, the
State must proffer substantial evidence of (1) an unlawful taking
of personal property from another; (2) the possession, use or
threatened use of a firearm or other dangerous weapon, and (3)
danger or threat to the life of the victim.
In re Stowe, 118 N.C.
App. 662, 664, 456 S.E.2d 336, 338 (1995).
Here, there was abundant substantial evidence as to each
element of robbery with a dangerous weapon. Mr. Lake-Nestor
and
Ms. Jant
testified at trial that Defendant entered Discount Check
Cashers on 19 July 2002
, the day of the charged robbery, dressed in
a BellSouth uniform. Mr. Lake-Nestor
and Ms. Jant
testified that
Defendant said he had come to repair the telefax line and was
brought to the back of Discount Check Cashers
, where the telephone
and telefax lines, as well as the safes, were located. Mr. Lake-
Nestor
and Ms. Jant
testified that Defendant then grabbed Mr. Lake-
Nestor
's arm, pulled out a gun, and demanded that Mr. Lake-Nestor
take the money out of the safes and put it into a bag. While Mr.
Lake-Nestor
removed the money from one of the safes and gave it to
Defendant, he was unable to remember the combination for the second
safe. Defendant then threatened to shoot Mr. Lake-Nestor
in the
knee
caps.
Defendant and another individual, who had held a gun toMs. Jant and threatened to shoot her, fled Discount Check Cashers
with approximately $29,000.00. Mr. Lake-Nestor
and Ms. Jant
positively identified Defendant in photograph line-ups and at
trial. Clearly, the State proffered substantial evidence as to
each element of the crime charged.
Finally, Defendant contends the trial court erred by: (1)
finding the non-statutory aggravating factor that Defendant's
conduct was part of a course of conduct that included the
commission of violent acts against others; and (2) sentencing the
Defendant in the aggravated range
.
Specifically, the trial court
found
that the defendant's actions in this
particular case, the case of Robbery With a
Dangerous Weapon committed against Discount
Check Cashers in Charlotte, North Carolina,
fits a nonstatutory aggravating factor that
this conduct by defendant was part of a course
of conduct that was part of an overall scheme
or plan that included the commission of
violent acts against other persons.
Our Supreme Court has recently held that “[o]ther than the
fact of a prior conviction, any fact that increases the penalty for
a crime beyond the prescribed presumptive range must be submitted
to a jury and proved beyond a reasonable doubt.”
State v. Allen,
__ N.C. __, __, __ S.E.2d __ , __ (1 July 2005) (No. 485PA04);
see
State v. Speight, __ N.C. __, __, __ S.E.2d __ , __ (1 July 2005)
(No. 491PA04). Therefore “those portions of N.C.G.S. § 15A-1340.16
(a), (b), and (c) which require trial judges to consider evidence
of aggravating factors not found by a jury or admitted by the
defendant and which permit imposition of an aggravated sentenceupon judicial findings of such aggravating factors by a
preponderance of the evidence violate the Sixth Amendment to the
United States Constitution.”
Allen, __ N.C. at __, __ S.E.2d at
__. Accordingly, “
Blakely errors arising under North Carolina's
Structured Sentencing Act are structural and, therefore, reversible
per se.”
Allen, __ N.C. at __, __ S.E.2d at __.
As the aggravating factor here was neither a prior conviction
nor admitted by Defendant, and the facts for the aggravating factor
were not presented to a jury and proved beyond a reasonable doubt,
pursuant to
Allen and
Speight we remand for resentencing.
No Error in part, Remanded for resentencing in part.
Chief Judge MARTIN and Judge TIMMONS-GOODSON concur.
Report per Rule 30(e).
Footnote: 1