Appeal by defendant from judgments entered 2 December 2005 by
Judge David S. Cayer in Mecklenburg County Superior Court. Heard
in the Court of Appeals 16 April 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Alvin W. Keller, Jr., for the State.
Sue Genrich Berry for defendant-appellant.
Defendant Jonathan Miller appeals from his convictions on
three counts of robbery with a dangerous weapon and one count of
possession of a firearm by a felon. We find each of his arguments
unpersuasive and, accordingly, hold that he received a trial free
of prejudicial error.
The State's evidence tended to show the following facts. At
about 1:00 a.m. on 5 March 2004, Derek Hinton, Sideric Jackson, and
Jeffrey Lightfoot walked out of a billiards hall in Charlotte,
North Carolina and headed to Hinton's Cadillac Escalade. A white
four-door sedan, similar to a Chrysler or a Dodge, was parked next
to the Escalade, with four men "laying low" inside the sedan. AsHinton placed the key in the ignition of his car, one of the men,
later identified as defendant, opened the driver-side door, placed
a handgun resembling a Ruger in Hinton's ribs, and said: "Don't
make me burn you." Hinton noticed an odor of marijuana emanating
from the white sedan and from defendant himself. Defendant took
Hinton's wallet, cash, a gold necklace, and a vintage jersey and
hat. Two of the other men in the white sedan pointed guns at
Jackson and Lightfoot and took their wallets as well.
Lightfoot escaped and ran to a nearby convenience store to
call the police. Meanwhile, defendant took Hinton's keys, got in
the Escalade, and drove away. The remaining robbers returned to
the white sedan and fled the scene. Several minutes after the
robbery, at approximately 1:08 a.m., police officers located
Hinton's Escalade, abandoned and locked, approximately one mile
About 23 hours later, at 11:53 p.m. on 5 March 2004, Officer
Piotr Ignacznak of the Charlotte-Mecklenburg Police Department
responded to a call to assist other officers. Upon arrival, he saw
a four-door white Dodge Stratus occupied by three men, one in the
front passenger seat and two in the rear. Defendant was in the
custody of two other police officers. Officer Ignacznak found a
fully-loaded Ruger pistol under the driver's seat of the vehicle
and a box of hollow-point ammunition in the center console. He
also smelled the odor of freshly burnt marijuana in the vehicle.
Gilda LouAllen, the mother of defendant's child, testified
that at approximately 11:00 p.m. on 5 March 2004, she saw defendantsitting in the driver's seat of a white automobile with three or
four other people in the car. She later saw police officers remove
defendant from the vehicle.
Subsequently, the police prepared a six-photo lineup
containing a photograph of defendant, and Hinton positively
identified defendant from the lineup as the person who robbed him.
On 18 May 2004, defendant was interviewed by a detective and
admitted that he was present at the robbery scene outside the
billiard hall, but claimed he had nothing to do with the robbery.
On 23 August 2004, defendant was indicted on three counts of
robbery with a dangerous weapon and one count of possession of a
firearm by a felon. Following a jury trial, defendant was
convicted of each count. The trial court imposed three consecutive
terms of 103 to 133 months imprisonment for the robbery convictions
and an additional consecutive term of 16 to 20 months for the
possession of a firearm by a felon conviction. Defendant timely
appealed to this Court.
In his first argument, defendant contends that the trial court
committed plain error by allowing the State to introduce evidence
of the Ruger handgun and ammunition and of the officer's
observation that the Dodge Stratus emitted an odor of marijuana
when stopped by the police on 5 March 2004. Defendant argues this
evidence constituted inadmissible character evidence under Rule
404(a) of the N.C. Rules of Evidence. See
N.C. Gen. Stat. § 8C-1,
Rule 404(a) (2005) ("Evidence of a person's character or a trait ofhis character is not admissible for the purpose of proving that he
acted in conformity therewith on a particular occasion . . . .")
Defendant concedes that he did not object to admission of this
evidence in the trial court and that, therefore, we may only review
for plain error. See
N.C.R. App. P. 10(c)(4). Under the plain
error standard, the burden is upon defendant to show "(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.
, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997).
It is well established that Rule 404(b) is "a clear general
rule of inclusion
of relevant evidence of other crimes, wrongs or
acts by a defendant, subject to but one exception
exclusion if its only
probative value is to show that the defendant
has the propensity or disposition to commit an offense of the
nature of the crime charged." State v. Coffey
, 326 N.C. 268,
278-79, 389 S.E.2d 48, 54 (1990). Rule 404(b) specifically
provides that evidence otherwise within the scope of Rule 404(a) is
admissible to prove identity. See also State v. Anderson
, 350 N.C.
152, 174, 513 S.E.2d 296, 310 (upholding admission of evidence to
prove defendant's identity was permissible purpose under Rule
404(b)), cert. denied
, 528 U.S. 973, 145 L. Ed. 2d 326, 120 S. Ct.
In this case, Hinton had identified defendant as using a gun
that appeared to be a Ruger and as having exited from a white
Dodge-like sedan that emitted a smell of marijuana. Evidence that,later the same day, officers found a Ruger handgun under the
driver's seat of a white Dodge Stratus that defendant had been
driving and that the car smelled of marijuana was consistent with
the identifying details provided by Hinton. Such evidence has a
tendency to identify defendant as the perpetrator of the robbery
outside the billiard hall and is thus admissible. See State v.
, 119 N.C. App. 625, 633, 460 S.E.2d 181, 188 (1995)
("Evidence that defendant was firing the gun in question shortly
before the events at the mobile home park was admissible to prove
defendant's identity as the person who fired the stray 9mm bullet
that killed Brittany."). The trial court, therefore, did not err
in admitting the challenged evidence.
Defendant next contends that he was denied effective
assistance of counsel when counsel failed to object to the
admission of the purported "character" evidence discussed above.
To establish a claim of ineffective assistance of counsel, a
defendant must show (1) his counsel's performance was deficient,
and (2) his defense was prejudiced by counsel's deficient
performance. State v. Braswell
, 312 N.C. 553, 562, 324 S.E.2d 241,
248 (1985). Our determination that the evidence was admissible
under Rule 404(b) establishes that defendant was not provided with
ineffective assistance of counsel.
Finally, with respect to his conviction of possession of a
firearm by a felon, defendant contends that the trial court's
instructions to the jury failed to safeguard his right to have the
jury render a unanimous verdict. Defendant argues that theevidence tended to show defendant's possession of a firearm at two
separate times on the day of the incident: at 1:00 a.m. and at
11:35 p.m. According to defendant, because the trial court failed
to specify a particular time for possession of the firearm, there
was no certainty that all twelve jurors reached the same conclusion
as to the time of possession.
The right to a unanimous jury verdict in a criminal proceeding
is guaranteed by the North Carolina Constitution and by the North
Carolina General Statutes. N.C. Const. art. I, § 24 ("No person
shall be convicted of any crime but by the unanimous verdict of a
jury in open court."); N.C. Gen. Stat. § 15A-1237(b) (2005) ("The
verdict must be unanimous, and must be returned by the jury in open
court."). The issue whether a court's instructions permitted a
jury to render a less than unanimous verdict may be fully reviewed
on appeal notwithstanding the absence of objection to the
instructions in the court below. State v. Ashe
, 314 N.C. 28, 39,
331 S.E.2d 652, 659 (1985). Upon review, the appellate court
examines the criminal statute forming the basis for the charge, the
verdict, the court's instructions to the jury, and the evidence "to
determine whether any ambiguity as to unanimity has been removed."
State v. Petty
, 132 N.C. App. 453, 461-62, 512 S.E.2d 428, 434,
appeal dismissed and disc. review denied
, 350 N.C. 598, 537 S.E.2d
We can find no basis for concluding that this case presented
a risk of a non-unanimous verdict. On the date of the offense,
N.C. Gen. Stat. § 14-415.1(a) (2003) provided: (a) It shall be unlawful for any person
who has been convicted of a felony to
purchase, own, possess, or have in his
custody, care, or control any handgun or other
firearm with a barrel length of less than 18
inches or an overall length of less than 26
inches, or any weapon of mass death and
destruction as defined in G.S. 14-288.8(c).
(See footnote 1)
There is no basis for any finding that defendant committed multiple
violations of N.C. Gen. Stat. § 14-415.1(a). The State's theory in
this case and the evidence presented indicated that on a single
day, defendant possessed a single gun. As a result, there was no
risk of non-unanimity. Because we are not confronted with the
potential for "two or more discrete and separate wrongs," Petty
132 N.C. App. at 461, 512 S.E.2d at 434, we have no unanimity
problem. This assignment of error is, therefore, overruled.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).