Opinion
No. COA12–828.
2013-03-5
STATE of North Carolina v. Devacea Navarea BASS, Defendant.
Roy Cooper, Attorney General, by Kathleen M. Waylett, Assistant Attorney General, for the State. Kimberly P. Hoppin, for defendant.
Appeal by defendant from judgment entered 27 January 2012 by Judge Henry W. Hight, Jr. in Durham County Superior Court. Heard in the Court of Appeals 10 December 2012. Roy Cooper, Attorney General, by Kathleen M. Waylett, Assistant Attorney General, for the State. Kimberly P. Hoppin, for defendant.
MARTIN, Chief Judge.
Defendant Devacea Navarea Bass was charged in true bills of indictment with robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. A jury found defendant guilty of both charges. Judgment was entered upon the jury's verdict sentencing defendant to not less than 73 months and not more than 97 months of imprisonment for robbery with a dangerous weapon, and a consecutive term of not less than 29 months and not more than 44 months of imprisonment for conspiracy to commit robbery with a dangerous weapon.
The evidence at trial tended to show that on 17 May 2011 Elder Alonso Flores Perez (“Mr.Flores”), the manager of Cash Converters on Roxboro Road in Durham, left work around 7:10 or 7:15 in the evening, driving his father's Ford Explorer. Mr. Flores was carrying $2000 in cash, withdrawn from his personal bank account. Mr. Flores stopped at the Koumi Restaurant, approximately one minute's drive away, to get something to eat. After Mr. Flores parked in the restaurant parking lot, he noticed a gray Honda Accord with black rims backed into a parking space, about twelve to fifteen feet to his left. It was still daylight outside and Mr. Flores observed four individuals inside the Accord. Mr. Flores identified defendant as the driver of the vehicle. Mr. Flores recognized defendant as an associate of Bobbie Deontre “Tray” Wyche and Derrick Lamont Dixon, both of whom were also seated in the Accord. Mr. Flores did not recognize the fourth individual seated in the Accord. Mr. Flores recognized Wyche, Dixon, and defendant because they had been to Cash Converters earlier that day and on prior occasions.
Mr. Flores observed Wyche walk behind Mr. Flores's Explorer and around to the passenger side, at which point he opened the front passenger door and climbed inside. Wyche took out a revolver and pointed it at Mr. Flores, who was still seated in the driver's seat, and said, “Sorry, give us everything you have.” Dixon then approached the driver's door of the Explorer, opened it, and pointed a revolver at Mr. Flores's stomach, saying, “Give us everything you have or I'm going to kill you.” Mr. Flores exited the vehicle and the unidentified individual approached Mr. Flores from behind, touching Mr. Flores's back and wallet. Mr. Flores placed his wallet and the two thousand dollars cash on the driver's seat and walked away, leaving the keys in the ignition. Mr. Flores testified that during the robbery, defendant remained in the Honda Accord. Mr. Flores did not recall whether defendant looked in his direction.
Mr. Flores observed Dixon drive off in his Explorer, with Wyche in the passenger seat. The unidentified individual got back into the Accord with defendant. Mr. Flores testified that he had turned the Explorer's ignition off, but that he could not recall hearing the Explorer being started again by Dixon. Mr. Flores also testified that he “didn't hear [the Accord] come on,” but he saw it move and follow his Explorer. Both vehicles turned onto Roxboro Road, traveling the same direction. The Accord—still driven by defendant—followed immediately behind the Explorer as it turned onto an adjacent road.
As part of a subsequent police investigation of the robbery, Mr. Flores was shown several photo lineups. Mr. Flores picked defendant's photo out of the lineup and remarked that he was “100% sure” that defendant was “the driver.” Photo lineup images of Wyche and Dixon were also identified by Mr. Flores with “100%” certainty.
The day after the robbery, the Durham Police Department conducted a traffic stop of a vehicle because the rear brake lights were not working. Defendant was a passenger in the vehicle and Dixon was driving. Testimony at trial tended to show that this vehicle was the same Honda Accord used in the robbery of Mr. Flores. Testimony at trial also indicated the Honda Accord “was stolen in a carjacking robbery.” Mr. Flores identified photos of the recovered Honda Accord as the car used in the robbery.
Defendant did not offer evidence but allowed his attorney to admit that he was the driver of the Honda Accord and that he was present at the robbery. However, defendant argued that he was unaware of any plans to rob Mr. Flores and that he did not take part in the robbery. Defendant appeals.
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Defendant first argues the trial court erred “by allowing evidence that the Honda driven by [defendant] was taken pursuant to an earlier ‘carjacking robbery.’ “ Defendant contends the evidence was not admissible under N.C.R. Evid. 404(b). While defendant made a pretrial motion to exclude all “prior acts committed [before] the date of the crime,” he did not secure a ruling on that motion, nor did he object to the challenged testimony at trial. Therefore, the standard of review is plain error. SeeN.C.R.App. P. 10(a)(4); see also State v. Rourke, 143 N.C.App. 672, 675, 548 S.E.2d 188, 190,cert. denied, 354 N.C. 226, 553 S.E.2d 396 (2001).
“For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial.” State v. Lawrence, 365N.C. 506, ––––, 723 S.E.2d 326, 334 (2012) (citing State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)). A fundamental error is one where “after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty.” Id. at ––––, 300 S.E.2d 375, 723 S.E.2d at 334 (internal quotation marks omitted). The burden of demonstrating the existence of this prejudice is on the defendant. Id. at ––––, 723 S.E.2d at 333 (citing State v. Melvin, 364 N.C. 589, 593–94, 707 S.E.2d 629, 632–33 (2010)). Plain error is to be “applied cautiously and only in the exceptional case,” where “the error will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. at ––––, 707 S.E.2d 629, 723 S.E.2d at 334 (citations and internal quotation marks omitted).
N.C.R. Evid. 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” N.C. Gen.Stat. § 8C–1, Rule 404(b) (2011). However, the evidence may “be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” Id. The enumerated list of permissible purposes in the rule is not exclusive, State v. Bagley, 321 N.C. 201, 206, 362 S.E.2d 244, 247 (1987), cert. denied,485 U.S. 1036, 108 S.Ct. 1598, 99 L.Ed.2d 912 (1988), and, in fact, “other crimes, wrongs, or acts” evidence need only be “relevant to any fact or issue other than the character of the accused” to be permissible. State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d 791, 793 (1986). For the evidence to be deemed relevant, it simply must have “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C. Gen.Stat. § 8C–1, Rule 401 (2011). Even if relevant, 404(b) evidence is also “constrained by the requirements of similarity and temporal proximity.” State v. Al–Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002), appeal after new trial, 359 N.C. 741, 616 S.E.2d 500 (2005). Finally, 404(b) evidence is subject to N.C.R. Evid. 403, which states, “Although 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 (2011).
Thus, this Court refers to a three-part test to determine whether the challenged evidence was correctly admitted pursuant to Rule 404(b): (1) whether the evidence is relevant for a purpose other than to show the defendant has a propensity to commit the charged offense; (2) whether that purpose is relevant to an issue material to the pending case; and (3) whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice to the defendant. State v. Foust, ––– N.C.App. ––––, ––––, 724 S.E.2d 154, 159 (2012). “We review de novo the legal conclusion that the evidence is, or is not, within the coverage of Rule 404(b).” State v. Beckelheimer, ––– N.C. ––––, ––––, 726 S.E.2d 156, 159 (2012). “We then review the trial court's Rule 403 determination for abuse of discretion.” Id.
In its brief, the State suggests several purposes—other than propensity—for which the testimony could have been correctly admitted. However, because defendant did not object to the testimony at trial, the record is devoid of the State's purpose for offering the evidence at trial. Nor is the purpose readily apparent or obvious from the record. In fact, a careful review of the trial transcript shows the State possibly did not intend to elicit the evidence at all. In questioning Detective Jones about the Honda Accord, the State asked:
Q. Did you even go to the scene where it was located?
A. No, sir, I headed after the fact.
Q. When did you learn about it?
A. That car was stolen in a carjacking robbery.
Q. So when did you find out about the recovery of this vehicle?
A. The 19th.
(Emphasis added.) Likewise, because defendant did not secure a ruling concerning his motion in limine to exclude 404(b) evidence or object to the testimony, the record is also devoid of any findings of fact or conclusions of law for this Court to review concerning the challenged testimony. See Beckelheimer, ––– N.C. at ––––, 726 S.E.2d at 159 (“When the trial court has made findings of fact and conclusions of law to support its 404(b) ruling, ... we look to whether the evidence supports the findings and whether the findings support the conclusions.”).
Rather than speculate as to the purpose for which the evidence was introduced or the reasoning of the trial court for not intervening ex mero motu, we will assume, for purposes of plain error analysis only, that the testimony was erroneously admitted. See State v. Houseright, ––– N.C.App. ––––, ––––, 725 S.E.2d 445, 450 (2012) (assuming arguendo the admission of the challenged 404(b) testimony was erroneous for purposes of plain error analysis).
After examining the entire record, we are satisfied that defendant cannot demonstrate that the admission of this testimony constituted a fundamental error which “had a probable impact on the jury's finding that the defendant was guilty.” See Lawrence, 365 N.C. at ––––, 723 S.E.2d at 334. The State presented substantial evidence that defendant acted in concert with others to commit the crime. Evidence was introduced that the car was backed into a parking space and kept waiting while three of the car's occupants took money and a SUV from Mr. Flores at gunpoint, and then the car, driven by defendant, followed the stolen SUV. The victim, Mr. Flores, recognized defendant at the scene of the crime and picked defendant's picture out of a photo lineup. Additionally, neither Detective Jones's testimony nor any other evidence introduced directly implicated defendant as the perpetrator of the “carjacking robbery” of the Honda Accord; rather he was just shown to have driven a stolen vehicle. Even without the testimony that the car had been taken in an earlier carjacking, the jury probably would have found defendant guilty. Therefore, we hold that the trial court did not commit plain error by failing to intervene ex mero motu to exclude this testimony.
Defendant next argues the trial court erred during closing arguments by allowing the State to make three allegedly improper remarks about matters outside the record or not supported by the evidence. Defendant did not object to the challenged remarks.
“The standard of review for assessing alleged improper closing arguments that fail to provoke timely objection from opposing counsel is whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu.” State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002) (citing State v. Trull, 349 N.C. 428, 451, 509 S.E.2d 178, 193 (1998)). This Court reviews “whether the argument in question strayed far enough from the parameters of propriety” so that the trial court should have interrupted closing arguments to “protect the rights of the parties and the sanctity of the proceedings....” Id. The defendant must establish “ ‘the prosecutor's comments so infected the trial with unfairness that they rendered the conviction fundamentally unfair.’ “ State v. Oakes, 209 N.C.App. 18, 22, 703 S.E.2d 476, 480 (quoting State v. Davis, 349 N.C. 1, 23, 506 S.E.2d 455, 467 (1998)), appeal dismissed,365 N.C. 197, 709 S.E.2d 918 (2011). “Under this standard, only an extreme impropriety on the part of the prosecutor will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken.” State v. Taylor, 362 N.C. 514, 545, 669 S.E.2d 239, 265 (2008), cert. denied,558 U.S. ––––, 130 S.Ct. 129, 175 L.Ed.2d 84 (2009) (citations and internal quotation marks omitted).
N.C.G.S. § 15A–1230(a) provides that an attorney giving a closing argument may not, inter alia, “make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice. An attorney may, however, on the basis of his analysis of the evidence, argue any position or conclusion with respect to a matter in issue.” N.C. Gen.Stat. § 15A–1230(a) (2011).
Defendant contends the following statement, made by the prosecutor, is not supported by the evidence:
He parks his car and all of the sudden he sees this other car parked. It's not—the engine isn't off. That was one of the things I asked [Mr. Flores]. Did you hear the car being cranked? No.
It's backed into a parking lot. If it's not cranked and it goes, that means it's still running.
Specifically, defendant contends the statement is a misrepresentation of Mr. Flores's testimony and the prosecutor used it incorrectly to argue that defendant was an active participant in the crime. However, a review of the transcript indicates that this is an accurate account of Mr. Flores's testimony:
Q. [W]hen you had stopped and parked, had you turned off the engine?
A. Of my car?
Q. Yes.
A. Yes, it was off.
Q. Now at some point did you hear anything, any sort of noise, coming from your vehicle as related to the engine?
A. I don't remember.
Q. You don't recall whether or not the vehicle was being turned on?
A. Huh-uh.
Q. Okay. How about the other vehicle, did you hear that?
A. I didn't hear that one come on.
Q. Did it move, the Honda Accord?
A. After they drove my vehicle away, the Honda Accord did move, yes.
The prosecutor correctly recalled Mr. Flores's answer to his question and then used “his analysis of the evidence [to] argue [a] position or conclusion with respect to a matter in issue.” SeeN.C. Gen.Stat. § 15A–1230(a). That the car was kept running was a rational inference that could be drawn from the witness's testimony that he did not hear the vehicle being turned on, but saw it move. Therefore, counsel's remarks were not “grossly improper.” This argument is without merit.
Defendant next contends the trial court should have intervened ex mero motu when the prosecutor referenced the date the stolen Honda Accord was taken: “How was this car obtained the day before? You heard from the investigators, you heard from the officer; carjacking.” A review of the transcript indicates that defendant is correct; the exact timing of the carjacking was not the subject of any testimony at trial. However, we are not persuaded that the inclusion of this information in closing argument was “grossly improper” or so outside “the parameters of propriety,” see Jones, 355 N.C. at 133, 558 S.E.2d at 107, as to have “infected the trial with unfairness that ... rendered the conviction fundamentally unfair.” See Oakes, 209 N.C.App. at 22, 703 S.E.2d at 480. To the contrary, the trial court instructed the jury that closing arguments are not evidence and to rely upon their own recollections of what the evidence was. Therefore, this argument is overruled.
Defendant also contends the trial court erred by not intervening ex mero motu when the prosecutor referenced the “fun” the perpetrators of the crime had in the stolen Explorer, which was later found totaled, flipped on its side, and lying next to skid marks that indicated the driver of the Explorer had done “donuts” before the vehicle overturned. The prosecutor also mentioned the stolen cash. Defendant claims that the record does not support an inference that defendant had anything to do with damage to the vehicle or the money taken from Mr. Flores, making the argument improper. We disagree. Testimony and evidence concerning the condition of the Explorer upon recovery was introduced at trial, as was testimony about the stolen cash. It was not “grossly improper” for the prosecution to argue—in support of the State's acting in concert theory of the case—the inference that defendant was involved in this portion of the crime. This argument is overruled.
Defendant next contends that in the alternative to his arguments about 404(b) evidence and improper closing arguments, his trial counsel was constitutionally ineffective for failing to object because defendant, on appeal, “was left then to argue the admissibility of this evidence under the higher burden of a plain error analysis,” and was subject “to a less favorable standard of review” for the closing argument issue.
“To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel's performance was deficient and then that counsel's deficient performance prejudiced his defense.” State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, 693 (1984)), cert. denied,549 U.S. 867, 166 L.Ed.2d 116 (2006). Deficient performance means that the defendant's attorney did not meet an objective standard of reasonableness. State v. Braswell, 312 N.C. 553, 561–62, 324 S.E.2d 241, 248 (1985). An attorney's performance falls below this objective standard of reasonableness when “counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Id. at 562, 324 S.E.2d at 248 (internal quotation marks omitted). To demonstrate prejudice, the defendant has the burden of showing a reasonable probability that, but for counsel's unprofessional errors, the result at trial would have been different. Allen, 360 N.C. at 316, 626 S.E.2d at 286. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” State v. Campbell, 359 N.C. 644, 690, 617 S.E.2d 1, 29–30 (2005), cert. denied,547 U.S. 1073, 126 S.Ct. 1773, 164 L.Ed.2d 523 (2006). Lastly, when reviewing trial counsel's performance for an ineffective assistance of counsel claim, there is “a strong presumption that counsel's conduct falls within the broad range of what is reasonable assistance.” State v. Fisher, 318 N.C. 512, 532, 350 S.E.2d 334, 346 (1986).
In this case, we are not persuaded that objecting to, or even the exclusion of, the challenged evidence would have altered the jury's verdict. Defendant cannot demonstrate prejudice because he has has not shown that there exists a reasonable probability that the jury verdict would have been different such that it undermines our confidence in the outcome of the trial. See Allen, 360 N.C. at 316, 626 S.E.2d at 286. Having failed to satisfy the second prong of the Strickland test, defendant's argument must fail.
Finally defendant argues the trial court erred when it denied his motion to dismiss the charges for insufficient evidence. “This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007), appeal after new trial,197 N.C.App. 403, 677 S.E.2d 14 (2009).
“ ‘Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.’ “ State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). “In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied,515 U.S. 1135, 115 S.Ct. 2565, 132 L.Ed.2d 818 (1995).
“The 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) whereby the life of a person is endangered or threatened.’ “ State v. Gettys, ––– N.C.App. ––––, ––––, 724 S.E.2d 579, 584 (2012) (quoting State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998)). “Acting in concert means that the defendant is ‘present at the scene of the crime’ and acts ‘together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.’ “ State v. Graham, 186 N.C.App. 182, 197, 650 S.E.2d 639, 649 (2007) (quoting State v. Joyner, 297 N.C. 349, 357, 255 S.E.2d 390, 395 (1979)), appeal dismissed and disc. review denied,––– N.C. ––––, 666 S.E.2d 765 (2008). A defendant may be convicted on an acting in concert theory even if “[an]other person does all the acts necessary to commit the crime.” State v. Bowden, ––– N.C.App. ––––, ––––, 717 S.E.2d 230, 233 (2011) (quoting State v. Abraham, 338 N.C. 315, 329, 451 S.E.2d 131, 137 (1994)). The intent to aid another in the commission of a crime may be inferred from the defendant's actions or from his relationship to the other perpetrators. State v. Capps, 77 N.C.App. 400, 403, 335 S.E.2d 189, 191 (1985). However, “a defendant's presence at the scene of a crime is not evidence of his guilt, even if the defendant is in sympathy with the criminal actor and makes no attempt to prevent the crime.” Bowden, ––– N.C.App. at ––––, 717 S.E.2d at 233 (citing Capps, 77 N.C.App. at 402–03, 335 S.E.2d at 190).
In this case, when viewed in the light most favorable to the State, there was “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion” that defendant acted in concert to commit robbery with a dangerous weapon. Testimony at trial established that three individuals got out of the car defendant was driving and took money and a SUV from Mr. Flores, while pointing revolvers at him and verbally threatening his life, thus meeting all three elements of robbery with a dangerous weapon. See Gettys, –––N.C.App. at ––––, 724 S.E.2d at 584. Defendant allowed his attorney to admit that he was the driver of the Honda Accord and present at the robbery. When viewed in the light most favorable to the State, evidence that: (1) defendant had been seen on previous days and on the day of the robbery with Dixon and Wyche at Cash Converters; (2) defendant was behind the wheel of a car that had been backed into a parking space so it was facing out; (3) defendant remained behind the wheel of the car while the three individuals who had been in the car got out and robbed Mr. Flores; (4) defendant waited for the unknown individual to return to the car before leaving; (5) defendant drove the Accord out of the parking lot; (6) defendant followed behind a stolen SUV driven by the former occupants of his car; and (7) defendant was found with one of the perpetrators in the same Accord the next day, is sufficient for “a reasonable mind [to] accept as adequate to support a conclusion” defendant was present at the scene of the crime and part of a common plan or purpose to commit the crime. See Graham, 186 N.C.App. at 197, 650 S.E.2d at 649;Capps, 77 N.C.App. at 403, 335 S.E.2d at 191. Therefore, the trial court did not err in denying defendant's motion to dismiss the charge of robbery with a dangerous weapon.
Likewise, the trial court did not err in denying defendant's motion to dismiss the conspiracy to commit robbery with a dangerous weapon charge. “ ‘A criminal conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means.’ “ State v. Privette, ––– N.C.App. ––––, ––––, 721 S.E.2d 299, 313 (quoting State v. Bindyke, 288 N.C. 608, 615, 220 S.E.2d 521, 526 (1975)), disc. review denied,––– N.C. ––––, 724 S.E.2d 532 (2012). “ ‘To hold a defendant liable for the substantive crime of conspiracy, the State must prove an agreement to perform every element of the crime.’ “ Id. (quoting State v. Suggs, 117 N.C.App. 654, 661, 453 S.E.2d 211, 215 (1995)). “The agreement may be an express understanding or a mutual, implied understanding.” State v. Bell, 311 N.C. 131, 141, 316 S.E.2d 611, 617 (1984).
Here, when considering the evidence in the light most favorable to the State, it can be reasonably inferred from defendant's actions, the circumstances, and coordinated nature of the robbery, that defendant was part of an agreement with Wyche, Dixon, and the unidentified individual, to use deadly weapons to threaten and take personal property from Mr. Flores. See Smith, 300 N.C. at 78–79, 265 S.E.2d at 169. Therefore, the trial court did not err when it denied defendant's motion to dismiss the conspiracy charge against him.
No error. Judges ERVIN and McCULLOUGH concur.
Report per Rule 30(e).