Appeal by defendant from a judgment dated 13 October 2005 by
Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard
in the Court of Appeals 6 December 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Kevin Anderson, for the State.
Linda B. Weisel for defendant-appellant.
BRYANT, Judge.
Donnavan Keith Blair (defendant) appeals from a judgment dated
13 October 2005 entered consistent with a jury verdict finding him
guilty of robbery with a dangerous weapon. For the reasons below,
we find defendant received a trial free of error.
Facts
On 16 April 2005, at approximately 11:00 am, Mario Hernandez
drove to a store in Winston-Salem, North Carolina to put air in his
spare tire. As he bent over to inflate the tire, he put his wallet
down on the ground beside him. Defendant approached Hernandez and
said something Hernandez could not understand because he does not
speak English. Defendant pushed Hernandez, grabbed Hernandez's
wallet and ran. Hernandez chased defendant.
That same morning, Sergeant Michael Weaver of the Winston-
Salem Police Department was parked across from the store in an
unmarked vehicle and observed the incident. As defendant ran away
from Hernandez, he ran right beside Sergeant Weaver's unmarked
vehicle. Sergeant Weaver observed that defendant was carrying a
wallet in his left hand and a knife in his right hand. Sergeant
Weaver drove to a point where he anticipated he could intercept
defendant, maneuvered in front of the chase and got out of his
vehicle.
At this point Hernandez had caught up with defendant and
defendant was turned around facing Hernandez. Defendant was
walking backward, away from Hernandez, but toward Sergeant Weaver,
with the wallet in his left hand and a knife in his right hand.
Defendant, unaware that Sergeant Weaver was behind him, told
Hernandez to “come and get it, I'll f--- you up.” Sergeant Weaver,
drew his sidearm and instructed defendant to stop and drop the
knife. Defendant then began to put the knife in his back right
pocket, but was instructed to stop. Defendant was taken into
custody and Hernandez's wallet was returned to him.
Procedural History
On 27 June 2005, the Forsyth County Grand Jury indicted
defendant for robbery with a dangerous weapon. This charge was
tried before a jury at the 10 October 2005, Criminal Session of
Forsyth County Superior Court, the Honorable William Z. Wood, Jr.,
Judge presiding. On 13 October 2005, the jury returned a verdict
finding defendant guilty of robbery with a dangerous weapon. The
trial court entered a judgment consistent with the jury verdict
dated 13 October 2005, sentencing defendant to 103 to 133 months in
prison. Defendant appeals.
_________________________
Defendant raises the issues of whether: (I) there is
sufficient evidence to support defendant's armed robbery
conviction; (II) the trial court erroneously denied defendant's
special jury instruction request about mere possession of a
dangerous weapon; (III) the trial court erroneously admitted the
State's detailed cross-examination of defendant regarding prior
charges and convictions; (IV) the trial court erroneously admitted
non-corroborative inadmissible hearsay evidence; (V) the trial
court erroneously admitted inadmissible hearsay evidence about the
neighborhood; and (VI) the trial court erroneously coerced the
verdict by instructing jurors they must reach a unanimous verdict.
I
[1] Defendant first argues his conviction for robbery with a
dangerous weapon must be vacated because there is insufficient
evidence he took property by use or threatened use of a dangerousweapon and he endangered or threatened the life of Hernandez with
a dangerous weapon. Defendant moved to dismiss the charge on the
ground of insufficient evidence at the close of the State's
evidence and again at the close of all the evidence, both of which
motions were denied by the trial court.
“[W]hen a defendant moves to dismiss a charge against him on
the ground of insufficiency of the evidence, the trial court must
determine 'whether there is substantial evidence of each essential
element of the offense charged and of the defendant being the
perpetrator of the offense.'”
State v. Garcia, 358 N.C. 382, 412,
597 S.E.2d 724, 746 (2004) (quoting
State v. Crawford, 344 N.C. 65,
73, 472 S.E.2d 920, 925 (1996)),
cert. denied, 543 U.S. 1156, 161
L. Ed. 2d 122 (2005).
Substantial evidence is relevant evidence that
a reasonable person might accept as adequate,
or would consider necessary to support a
particular conclusion. A substantial evidence
inquiry examines the sufficiency of the
evidence presented but not its weight. The
reviewing court considers all evidence in the
light most favorable to the State, and the
State receives the benefit of every reasonable
inference supported by that evidence.
Evidentiary contradictions and discrepancies
are for the jury to resolve and do not warrant
dismissal.
Garcia, 358 N.C. at 412-13, 597 S.E.2d at 746 (internal citations
and quotations omitted).
The essential elements of robbery with a dangerous weapon are:
“(1) an unlawful taking or an attempt to take personal property
from the person or in the presence of another, (2) by use or
threatened use of a firearm or other dangerous weapon, (3) wherebythe life of the person is endangered or threatened.”
State v.
Mann, 355 N.C. 294, 303, 560 S.E.2d 776, 782 (2002) (citation and
quotations omitted);
see also N.C. Gen. Stat. § 14-87 (2005)
(defining the crime of robbery with firearms or other dangerous
weapons). “Robbery with a dangerous weapon requires that 'the
defendant's use or threatened use of a dangerous weapon must
precede or be concomitant with the taking, or be so joined with it
in a continuous transaction by time and circumstances as to be
inseparable.'”
State v. Bellamy, 159 N.C. App. 143, 148-49, 582
S.E.2d 663, 667-68 (quoting
State v. Hope, 317 N.C. 302, 306, 345
S.E.2d 361, 364 (1986)),
cert. denied, 357 N.C. 579, 589 S.E.2d 130
(2003). However, “[t]he exact time relationship, in armed robbery
cases, between the violence and the actual taking is unimportant as
long as there is one continuing transaction.”
Id. at 149, 582
S.E.2d at 668 (citation and quotations omitted);
see also State v.
Green, 321 N.C. 594, 605, 365 S.E.2d 587, 594 (1988) (“The
commission of armed robbery . . . does not depend upon whether the
threat or use of violence precedes or follows the taking of the
victims' property. Where there is a continuous transaction, the
temporal order of the threat or use of a dangerous weapon and the
takings is immaterial.”). Nevertheless, mere possession of a
weapon is not sufficient to support an armed robbery conviction.
State v. Gibbons, 303 N.C. 484, 489-91, 279 S.E.2d 574, 577-78
(1981).
In the instant case, Hernandez did not see defendant's knife
until defendant was taken into custody. However, Sergeant Weavertestified defendant, while holding a knife in his right hand and
the recently stolen wallet in his left hand, threatened to harm
Hernandez immediately after the short chase through the streets.
Sergeant Weaver further testified that he first saw the knife in
defendant's hand right after defendant stood up after pushing
Hernandez and taking his wallet. While defendant testified that he
was holding a crack-pipe and not a knife in his hand, this
contradiction is a matter for the jury to decide. Considering all
evidence in the light most favorable to the State, the evidence was
sufficient to send the charge of robbery with a dangerous weapon to
the jury.
See Bellamy, 159 N.C. App. at 147-49, 582 S.E.2d at 667-
69 (holding evidence was sufficient to withstand motion to dismiss
armed robbery charge when the defendant took two videos, fled the
store pursued by an employee, and brandished a pocketknife and
threatened the pursuing employee at the end of the chase). This
assignment of error is overruled.
II
[2] Defendant next argues the trial court erred in denying his
request to instruct the jury that possession of a dangerous weapon
is insufficient to satisfy the elements of robbery with a dangerous
weapon. During the charge conference, defendant orally asked for
an instruction that mere possession of a dangerous weapon does not
satisfy the elements of armed robbery and submitted a written
request asking the trial court to specifically instruct the jury
that “[m]ere possession of a dangerous weapon does not satisfy the
elements for this offense.” The trial court denied the request onthe ground defendant's request was covered by the pattern jury
instruction.
It is well settled that “[i]f a 'request be made for a special
instruction, which is correct in itself and supported by evidence,
the court must give the instruction at least in substance.'”
State
v. Chapman, 359 N.C. 328, 379, 611 S.E.2d 794, 830 (2005) (quoting
State v. Lamb, 321 N.C. 633, 644, 365 S.E.2d 600, 605-06 (1988)).
“The crucial issue, [however], is whether the evidence supports
defendant's requested instruction[.]”
State v. Lane, 115 N.C. App.
25, 31, 444 S.E.2d 233, 237,
disc. review denied, 337 N.C. 804, 449
S.E.2d 753 (1994).
Here, the evidence does not support defendant's contention
that he merely possessed a knife while stealing Hernandez's wallet.
Defendant was seen holding a knife at the time he pushed Hernandez
and took the wallet, and was further seen threatening Hernandez,
saying “come and get it, I'll f--- you up[,]” while holding the
wallet in one hand and a knife in the other. Here the trial
court's instruction, pursuant to the pattern jury instruction,
stated that the jury must find that “the defendant obtained the
property by endangering or threatening the life of that person with
the dangerous weapon.” By its plain language, this instruction
informed the jury, in substance, that mere possession of the weapon
was not enough and defendant must have used the weapon to endanger
or threaten the life of the victim. This assignment of error is
overruled.
III
[3] Defendant also argues the trial court erred in allowing
the State to question defendant about accusations for which
defendant was not convicted and about the details of defendant's
prior convictions. Defendant contends the State exceeded the
permissible scope of cross-examination and the questioning violated
Rules 608(b) and 609(a) of the North Carolina Rules of Evidence.
Rule 608(b) of the North Carolina Rules of Evidence provides:
Specific instances of the conduct of a
witness, for the purpose of attacking or
supporting his credibility, other than
conviction of crime as provided in Rule 609,
may not be proved by extrinsic evidence. They
may, however, in the discretion of the court,
if probative of truthfulness or
untruthfulness, be inquired into on
cross-examination of the witness (1)
concerning his character for truthfulness or
untruthfulness[.]
N.C. Gen. Stat. § 8C-1, Rule 608(b) (2005). Rule 609(a) further
provides that “[f]or the purpose of attacking the credibility of a
witness, evidence that the witness has been convicted of a felony,
or of a Class A1, Class 1, or Class 2 misdemeanor, shall be
admitted if elicited from the witness or established by public
record during cross-examination or thereafter.” N.C. Gen. Stat. §
8C-1, Rule 609(a) (2005);
see also State v. Braxton, 352 N.C. 158,
193, 531 S.E.2d 428, 448 (2000) (“Evidence of a witness' prior
convictions is admissible for the purpose of impeaching the
witness' credibility.”),
cert. denied, 531 U.S. 1130, 148 L. Ed. 2d
797 (2001). The State, however, may not elicit “details of prior
convictions other than the name of the crime and the time, place,
and punishment for impeachment purposes under Rule 609(a) in theguilt-innocence phase of a criminal trial.”
State v. Lynch, 334
N.C. 402, 410, 432 S.E.2d 349, 353 (1993). Nevertheless, “evidence
which would otherwise be inadmissible may be permissible on
cross-examination 'to correct inaccuracies or misleading omissions
in the defendant's testimony or to dispel favorable inferences
arising therefrom.'”
Braxton, 352 N.C. at 193, 531 S.E.2d at 448
(quoting
Lynch, 334 N.C. at 412, 432 S.E.2d at 354).
Here, defendant took the witness stand and testified in his
own defense. On direct examination, defendant claimed that he did
not “do violent crimes,” would not seriously hurt a person or put
them in danger, and had never robbed anyone. On cross-examination,
defendant was asked by the State if he had been convicted of
misdemeanor “assault with a deadly weapon after the State reduced
that from a felony assault to [misdemeanor assault with a] deadly
weapon.” Defendant responded that “due to further investigation .
. . the assault with deadly weapon . . . was dismissed.” Defendant
was asked what kind of weapon was involved, and defendant responded
“it supposedly had been a shotgun, but it was a BB gun.” Defendant
was also asked if his 2003 plea to misdemeanor larceny had been
reduced from common law robbery and he responded, “Yes[.]”
Defendant was next asked if he had pleaded guilty in 1996 to
misdemeanor possession of drug paraphernalia and he again
responded, “Yes[.]” The State then asked if that charge had been
reduced from felony possession with intent to sell or deliver
cocaine, and defendant responded “Yes[.]” At this point,
defendant's counsel objected to the questions pertaining to theoriginal charges. The trial court sustained the objection and
allowed defendant's subsequent motion to strike. Defendant did not
request a limiting instruction and none was given to the jury. The
State then inquired as to several other crimes for which defendant
was convicted. No objections were made to any of the questions,
and defendant admitted to each conviction.
Where defendant fails to object to the State's cross-
examination, he “has the burden of showing that the error
constituted plain error, that is, (i) that a different result
probably would have been reached but for the error or (ii) that the
error was so fundamental as to result in a miscarriage of justice
or denial of a fair trial.”
State v. Bishop, 346 N.C. 365, 385,
488 S.E.2d 769, 779 (1997) (citing
State v. Bagley, 321 N.C. 201,
213, 362 S.E.2d 244, 251 (1987)). Here, the State's questioning
was not in error, let alone plain error. During direct
examination, defendant minimized the seriousness of his criminal
involvement when he claimed that he was not a violent person and
had never robbed anyone. This testimony opened the door to the
State's questioning as to defendant's past criminal history.
See
Braxton, 352 N.C. at 193-94, 531 S.E.2d at 449 (“Considering
defendant's testimony on direct examination which tended to
minimize the seriousness of his criminal involvement, we conclude
the prosecutor did not exceed the scope of proper examination.”)
When the questioning seemed to move beyond the purposes allowable
under Rule 609(a), defendant's objection was sustained without
further ado. This assignment of error is overruled.
IV
[4] Defendant also contends the trial court erred in admitting
at trial alleged non-corroborative hearsay evidence about what
Hernandez said immediately following the robbery. Defendant did
not object at trial to the admission of this evidence, therefore we
review this contention only for plain error.
Bishop, 346 N.C. at
385, 488 S.E.2d at 779.
The North Carolina Supreme Court has held that “'[b]y
definition, a prior statement is admitted only as corroboration of
the substantive witness and is not itself to be received as
substantive evidence.'”
State v. Francis, 343 N.C. 436, 446, 471
S.E.2d 348, 353 (1996) (quoting
State v. Stills, 310 N.C. 410, 415,
312 S.E.2d 443, 447 (1984)). Additionally, “prior consistent
statements are admissible even though they contain new or
additional information so long as the narration of events is
substantially similar to the witness' in-court testimony.”
State
v. Williamson, 333 N.C. 128, 136, 423 S.E.2d 766, 770 (1992)
(citation omitted). “'[A]n instruction limiting admissibility of
testimony to corroboration is not required unless counsel
specifically requests such an instruction.'”
State v. Borkar, 173
N.C. App. 162, 169, 617 S.E.2d 341, 345 (2005) (quoting
State v.
Smith, 315 N.C. 76, 82, 337 S.E.2d 833, 838 (1985)). A trial court
has “wide latitude in deciding when a prior consistent statement
can be admitted for corroborative, non[-]hearsay purposes.”
State
v. Call, 349 N.C. 382, 410, 508 S.E.2d 496, 513 (1998). Early in the trial Hernandez testified that he did not “know
if [defendant] pushed [him] or not[.]” On cross-examination,
Hernandez testified he did not remember if defendant pushed him.
After Hernandez finished his testimony, Officer K.C. Bell of the
Winston-Salem Police Department testified that he responded to the
scene of the arrest and acted as an interpreter to help interview
Hernandez. Officer Bell testified that Hernandez told him “he was
kneeled over and had his wallet on the ground in front of him and
that someone had come up . . ., a black male, had pushed him over,
[took] his wallet, and ran away[.]” Defendant argues Officer
Bell's testimony is hearsay evidence not admissible to corroborate
Hernandez's prior testimony as it actually contradicted Hernandez's
trial testimony.
Contrary to defendant's argument, the testimony of Officer
Bell does not contradict the testimony of Hernandez. At no point
during his testimony did Hernandez state that defendant did not
push him down, but rather only that he could not remember whether
or not he was pushed down by defendant. Other than this one
detail, the testimony of Officer Bell as to Hernandez's statement
taken shortly after the robbery is substantially similar to
Hernandez's in-court testimony. Furthermore, Sergeant Weaver
testified that he saw defendant “push[] Mr. Hernandez onto the
ground[.]” Thus, the admission of Officer Bell's testimony
concerning Hernandez's prior statement was not error. This
assignment of error is overruled.
V
[5] Defendant next argues the trial court erroneously admitted
inadmissible hearsay evidence about the neighborhood. Again,
defendant did not object at trial to the admission of this
evidence, therefore we review this issue only for plain error.
Bishop, 346 N.C. at 385, 488 S.E.2d at 779. In North Carolina, the
“general rule is that in a criminal prosecution evidence of the
reputation of a place or neighborhood is ordinarily inadmissible
hearsay.”
State v. Weldon, 314 N.C. 401, 408, 333 S.E.2d 701, 705
(1985) (citation omitted);
State v. Williams, 164 N.C. App. 638,
639, 596 S.E.2d 313, 314 (2004). However, “'if a statement is
offered for any purpose other than that of proving the truth of the
matter asserted, it is not objectionable as hearsay.'”
State v.
English, 171 N.C. App. 277, 284, 614 S.E.2d 405, 410 (2005)
(quoting
State v. White, 298 N.C. 430, 437, 259 S.E.2d 281, 286
(1979)).
At trial, Sergeant Weaver testified that on 16 April 2005 he
was conducting surveillance of the area where the robbery occurred
because police “had numerous complaints of prostitution,
street-level drugs, larcenies, shoplifting, robberies, assaults.”
This testimony was elicited in response to the State's question
asking Sergeant Weaver why he was conducting surveillance in that
area, on that day. As in
English, this testimony was not admitted
for the truth of the matter asserted, but rather to explain why
Sergeant Weaver was in a position to observe the robbery.
Therefore, the statement was not hearsay and was admissible. This
assignment of error is overruled.
VI
[6] Defendant lastly argues the trial court erroneously
coerced the verdict by instructing jurors they must reach a
unanimous verdict. “Defendant did not object to this instruction
at the time it was given and, therefore, must show that the trial
court committed plain error.”
State v. Roache, 358 N.C. 243, 309,
595 S.E.2d 381, 423 (2004). Defendant “'must show that the
instructions were erroneous and that absent the erroneous
instructions, a jury probably would have returned a different
verdict.'”
State v. Barden, 356 N.C. 316, 383, 572 S.E.2d 108,
150 (2002) (quoting
State v. Lucas, 353 N.C. 568, 584, 548 S.E.2d
712, 723 (2001)),
cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074
(2003).
It is well settled that “'a trial judge has no right to coerce
a verdict, and a charge which might reasonably be construed by a
juror as requiring him to surrender his well-founded convictions or
judgment to the views of the majority is erroneous.'”
State v.
Whitman, 179 N.C. App. 657, 670, 635 S.E.2d 906, 915 (2006)
(quoting
State v. Holcomb, 295 N.C. 608, 614, 247 S.E.2d 888, 892
(1978)). “In determining whether a trial court's actions are
coercive, an appellate court must look to the totality of the
circumstances.”
State v. Dexter, 151 N.C. App. 430, 433, 566
S.E.2d 493, 496,
aff'd per curiam, 356 N.C. 604, 572 S.E.2d 782
(2002).
In the instant case, at the conclusion of the jury charge, the
trial court instructed the jurors as follows:
You may not return a verdict until all twelve
jurors agree unanimously on what your verdict
shall be. You may not return a verdict by
majority vote.
You must all agree.
When [you] have agreed upon your
unanimous verdict, your foreperson should so
indicate on the verdict form or should mark
the appropriate place reflecting your verdict
on the verdict form.
. . .
Okay. Ladies and gentleman, after
retiring to the jury room, you should first
select one of your members to serve as your
foreperson. You may begin your deliberations
only when the bailiff delivers the verdict
form to you.
(Emphasis added.) During its deliberations, the jury had several
questions for the trial court but did not inquire about the
consequences of its failure to reach a unanimous verdict. The jury
deliberated for less than two hours and never indicated it was
divided. From the record before this Court, defendant has not
shown that the trial court's instruction that they “must all agree”
was an error absent which the jury probably would have returned a
different verdict.
See State v. Applewhite, 127 N.C. App. 677,
681, 493 S.E.2d 297, 299 (1997) (finding no plain error in the
trial court's instruction that the jury “must . . . reach a
unanimous verdict”). This assignment of error is overruled.
No error.
Judges McGEE and STEELMAN concur.
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