An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-554


Filed: 2 May 2006


v .                         Pitt County
                            No. 04 CRS 11161
OTIS PATRICK WILLIAMS             04 CRS 11162
                             04 CRS 11163

    Appeal by defendant from judgment entered 27 October 2004 by Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 11 January 2006.

    Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O'Brien, for the State.

    William D. Spence for defendant-appellant.

    ELMORE, Judge.

    Otis Patrick Williams (defendant) appeals his convictions for obstruction of justice and communication with a juror. After a careful review of the record, and for the following reasons, we find no error in defendant's trial.
    Defendant was incarcerated in the Pitt County Detention Center awaiting trial for murder and arson. At some point, he acquired a list of names comprising the jury pool during the session of court his trial was scheduled to take place, the week of 12 July 2004. Defendant asked other inmates whether they knew anyone on the list. One of defendant's cell mates, Anthony Holloway, responded that his girlfriend Samantha Grimes was on the list. Defendant initially spoke with Holloway about trying to keep Grimes from having toserve on his jury, but later changed his position and asked Holloway whether Grimes would vote to hang up his jury. If so, defendant promised Holloway that he would take care of Grimes when he was released.
    From that point forward Holloway would call Grimes and receive information from her about how the jury selection and trial were progressing. Holloway would then relay those messages to defendant, who in turn, would give Holloway additional information to give to Grimes. Defendant and Grimes never spoke directly. All of Holloway's calls to Grimes were recorded by the jail's telephone system. After overhearing Holloway and defendant discussing their arrangement, another inmate, Geoffrey Simmons, told his attorney about defendant's actions. Simmons's attorney informed the district attorney, and midway through the third day of defendant's trial for murder and arson, Grimes was taken into custody and the trial court declared a mistrial. Based on these facts, defendant was tried and convicted for obstruction of justice and communicating with a juror. He also pled guilty to being an habitual felon. Defendant received 160 to 201 months imprisonment, and now brings forth numerous issues on appeal.
    Defendant first argues the trial court erred by failing to conduct a proper inquiry, pursuant to N.C. Gen. Stat. § 15A-1242, upon his comments to the trial court that he was unsatisfied with his current counsel's representation. We find no error in the trial court's inquiry.    Before a jury had been empaneled to hear defendant's case, defendant's counsel went on record to advise the trial court that defendant was rejecting a plea agreement from the State that counsel advised he take. During the conversation with defense counsel the trial court addressed defendant to determine whether he understood what his counsel had advised. Defendant answered that he did, but also stated, “[t]o me I feel like I'm being dis- properly [sic] represented and I feel like--I don't want Mr. Foster as my lawyer.” The trial court responded that he was going to deny defendant's motion. The trial court and defendant then conversed about whether defendant understood the advice that his counsel was giving him. Defendant continued to say that he did, that he was rejecting the plea, but that he felt Mr. Foster was not adequately representing him. As best as can be determined from the record, defendant's dissatisfaction was due to the fact that 1) counsel had only met with him a few times since the charges were issued, and 2) defendant thought counsel was upset with him for not taking the plea.
    By its very nature, N.C. Gen. Stat. § 15A-1242 is only applicable if defendant elects to proceed pro se. See State v. Gerald, 304 N.C. 511, 518, 284 S.E.2d 312, 317 (1981) (Examining section 15A-1242, the Count stated that “although the better practice when a defendant indicates problems with his counsel is for the court to inquire whether defendant wishes to conduct his own defense, it is not reversible error for the court not to do so when there has been no intimation that defendant desired torepresent himself.”). There is nothing in the transcript or the record that would suggest defendant made any indication he would like to proceed pro se, only that he was dissatisfied with his current counsel.
    And, since there was no evidence suggesting that defendant wished to proceed pro se, the extent of the trial court's inquiry “should be [only so much] as necessitated by the circumstances.” Id. at 519, 284 S.E.2d at 317. When those circumstances are “a claim of conflict between defendant and his attorney, the trial court must determine only that the defendant's present counsel is able to render competent assistance and that the nature of the conflict will not render such assistance ineffective.” State v. Johnson, 341 N.C. 104, 111, 459 S.E.2d 246, 250 (1995) (citing State v. Thacker, 301 N.C. 348, 353, 271 S.E.2d 252, 255 (1980)). When reviewing the record as a whole, we are satisfied that the trial court met this level of inquiry and overrule defendant's assignment of error.
    Defendant next argues that the trial court erred in denying his motion to dismiss. We disagree. When considering a motion to dismiss for insufficient evidence, the trial court must determine whether there is substantial evidence of each element of the offense and that the defendant committed the offense. State v. Irwin, 304 N.C. 93, 97, 282 S.E.2d 439, 443 (1981). Substantial evidence is “'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” State v. Smith, 150 N.C. App. 138, 140, 564 S.E.2d 237, 239 (quoting State v. Vause,328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991) (citations omitted)), cert. denied, 355 N.C. 756, 566 S.E.2d 87 (2002). All evidence is to be considered in the light most favorable to the State and all reasonable inferences are to be drawn therefrom. Irwin, 304 N.C. at 98, 282 S.E.2d at 443. Where there is a reasonable inference of a defendant's guilt from the evidence, the jury must determine whether that evidence “convinces them beyond a reasonable doubt of defendant's guilt.” Id.
    Defendant was indicted for communicating with a juror and obstruction of justice. In order for the State prove defendant communicated with a juror it must show that defendant 1) communicated with a juror, 2) with the intent to “influence the official action.” N.C. Gen. Stat. § 14-225.2 (2005). The official action here would be defendant's trial on the murder and arson charges, and section 14-225.2 defines a “juror” to include a person “drawn or summoned to attend as a prospective juror.” Id. To prove obstruction of justice, a common law crime, the State had to show defendant prevented, obstructed, impeded, or hindered justice. In re Kivett, 309 N.C. 635, 670, 309 S.E.2d 442, 462 (1983). In order to prove that obstruction was a felony offense, rather than a misdemeanor, the State needed to offer proof that the act was done with deceit and intent to defraud. N.C. Gen. Stat. § 14-3(b) (2005) (manner of proof necessary to escalate an unspecified misdemeanor to a felony); State v. Preston, 73 N.C. App. 174, 175, 325 S.E.2d 686, 688 (1985) (“At common law, obstruction of justice was a misdemeanor.” (citation omitted)).    The State, through various witnesses, showed that defendant had acquired a list of potential jurors for his case and solicited the help of other inmates in identifying any individuals on the list. Holloway provided a link to Grimes, and in the light most favorable to the State, served as a middle-man between defendant and Grimes. Holloway testified that he would inquire about the trial from Grimes for defendant's benefit, who was typically within earshot of Holloway during these conversations. Holloway also testified that defendant conveyed information to Grimes through him, or at least told him things about the crimes and trial that defendant knew he would repeat to Grimes. This included information on hanging a jury and that all it would take to achieve that result was one vote of not guilty. Holloway further testified that it was his impression defendant was going to either pay Grimes or “look after her” when he was found not guilty.
        STATE: When [defendant] told you that when I get out I'll look out for your girl, what was your impression of what he was saying?

        HOLLOWAY: What I was thinking, you know, I mean I guess he kind of figured that I was going to tell her. My impression was he was going to give her some money whenever this was over with.

        STATE: And when he said when I get out I'll look after your girl, was that right after him talking about some money and getting money for being found not guilty?

        HOLLOWAY: Yes.

        STATE: So it was the same conversation.

        HOLLOWAY: Yes.
        STATE: And what did you do after he told you he was going to look out for your girl?

        HOLLOWAY: I talked to [Grimes] I think the same night.

        . . .

        HOLLOWAY: And I repeated the same thing to her and told her what he told me.

    The State also had another inmate testify who had conversations with both defendant and Holloway. This inmate, Geoffery Simmons, said that defendant had told him Grimes was going to hang the jury and she was his “ace in the hole.” He corroborated much the plan Holloway had described. He further testified that defendant told him he had flushed the jury list down the toilet when the police were alerted and began to search defendant's belongings in jail. Simmons stated that defendant told him he never spoke to Grimes in an effort to avoid implicating himself in the conversations and, without the list, he felt sure the police could not connect him to anything.
    Defendant argues that without evidence linking him directly to Grimes, or some evidence of an explicit agreement to pay Grimes for hanging the jury, the State failed to provide substantial evidence of the crimes charged. We disagree. The State's evidence was indeed circumstantial, but that does not lessen the fact that a jury could reasonably infer defendant's intent in talking to Holloway, and indirectly to Grimes, was to influence her vote in his case. Thus it was not error for the trial court to deny defendant's motion to dismiss either charge.    Defendant makes the same argument_that due to the lack of evidence showing a direct link between he and Grimes or an expressed agreement between he and Holloway_in assigning error to the trial court's ruling to allow the jury instructions of aiding and abetting and acting in concert. We see no error in that determination.
        To determine whether an instruction should be given, the court must consider whether there is any evidence to support a conviction for the offense. State v. Smart, 99 N.C. App. 730, 394 S.E.2d 475 (1990). To secure a conviction based on acting in concert, the State must show that defendant was present at the scene of the crime and that he acted together with another individual who does the acts necessary to constitute the crime pursuant to a common plan to commit the offense. Id.

State v. Cotton, 102 N.C. App. 93, 97, 401 S.E.2d 376, 379, disc. review denied, 329 N.C. 501, 407 S.E.2d 543 (1991). Our Supreme Court has previously stated that there is little substantive difference in aiding and abetting and acting in concert, see State v. Williams, 299 N.C. 652, 656, 263 S.E.2d 774, 777 (1980), therefore if there is sufficient evidence to support an instruction on one, instructing on the other is supported as well, see State v. Roache, 358 N.C. 243, 312, 595 S.E.2d 381, 425 (2004) (“In any given case, both theories may be proven by the same evidence.”).
    Here, the evidence reasonably demonstrated that defendant was communicating through Holloway to Grimes in an effort to hang his jury. Defendant did not act alone, but at the very least was present during Holloway's communications with Grimes. Other witnesses testified to defendant bragging about his situation,exploiting it, and encouraging Holloway to stay in contact with Grimes. Even without an explicit agreement or direct evidence linking defendant with Grimes, the evidence supports the instructions. “The communication or intent to aid does not have to be shown by express words of the defendant but may be inferred from his actions and from his relation to the actual perpetrators.” State v. Goode, 350 N.C. 247, 260, 512 S.E.2d 414, 422 (1999) (citations omitted).
    We have carefully evaluated defendant's remaining properly preserved assignments of error and found them to be without merit. Accordingly, we hold that defendant received a trial free from error and affirm the judgments entered.
    No error.
    Judges McCULLOUGH and LEVINSON concur.
    Report per Rule 30(e).

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