Opinion
No. 04-887.
Filed 6 September 2005.
Alamance County Nos. 03 CRS 56601; 03 CRS 56607; 03 CRS 56792; 03 CRS 56793.
Appeal by co-defendants from judgments signed 8 December 2003 by Judge Evelyn Hill in Alamance County Superior Court. Heard in the Court of Appeals 9 March 2005.
Attorney General Roy Cooper, by Special Deputy Attorney General Jonathan P. Babb, for the State (Caples appeal). M. Alexander Charns for defendant Brandon M. Caples. Attorney General Roy Cooper, by Special Deputy Attorney General Steven M. Abogast, for the State (Mitchell appeal). Paul Pooley for defendant Christopher G. Mitchell.
Brandon M. Caples (Caples) and Christopher G. Mitchell (Mitchell) (co-defendants), appeal judgments signed on 8 December 2003, entered consistent with jury verdicts finding them both guilty of robbery with a dangerous weapon, breaking and entering, felony larceny, and first-degree kidnapping.
Facts
Around 5:30 or 6:00 p.m. on 22 July 2003, Terrence Lamont Brown was driving through Burlington, North Carolina, in his father's truck with Jamal McCadden and William Herbin. As they rode by eighty-year-old Violet Neese's (the victim's) house in Burlington, they saw her car (a 1996 Chrysler LHS valued at $7,000.00) in the carport of her home. Brown testified that he said to McCadden, "I liked the car and I wouldn't mind having it." Brown returned to Latoya Burnette's residence and told Brandon Caples, Christopher Mitchell, and Theodis Rice that he wanted to take the victim's car. Brown testified: "I told them that I saw a car that I wouldn't mind getting and asked them would they ride with me."
All six men got into Brown's truck, including defendants Mitchell and Caples. Caples was driving instead of Brown, because Brown had told them he was going to get the car. After driving to the victim's street, Brown, Rice and Herbin got out and walked up to the victim's house. Caples drove the truck to the next road. Brown testified he parked the truck "just up the street from the house for them to wait there until we got the car." The plan for getting the car was for one of the men to go to the door and "see if, they could get the keys to the car and then leave."
Rice went to the victim's door while Brown and Herbin remained at the carport. Rice knocked on the door and the victim answered. Herbin asked if the "man of the house" was home, and also inquired about doing some yard work. The victim told him to wait until the man of the house came home to talk about yard work. At that point, Herbin looked to Brown and Rice, who nodded their heads, and Herbin pulled out his handgun. Herbin, Brown, and Rice forced their way into the victim's house and told her to sit on the couch. Brown took the keys to the victim's car, left the house, and started the car. Herbin searched the victim's pocketbook while Rice pulled the phone lines out of the walls. All three men then directed the victim, at gun point, into the trunk and got into the car.
Brown drove the stolen car out of the driveway and moved towards the truck. Brown drove past the truck and Caples (driving the truck) followed right behind the stolen car all the way to Burnette's house. At Burnette's house, they picked up "DJ" (Dejaniero Gravely). Shortly thereafter, the group left, heading towards Roxboro in both vehicles, with the stolen car in the lead. As the group traveled on Highway I-85, the truck started slowing down and Caples eventually pulled over to the side of the road. The truck had run out of gas and was left on the side of the road. Caples, Mitchell, and McCadden got into the stolen car with Herbin, Brown and Rice and drove to Caples' house.
When they arrived at Caples' house, Caples, Mitchell, McCadden, and Herbin stayed, intending to get a ride back to Burlington with a friend of Caples. Brown, Rice, and Gravely drove away in the victim's car, with the victim still in the trunk. After driving to Reidsville, and making a brief stop at another house, the victim was released at night on Narrow Gauge Road. Narrow Gauge Road is a two-lane road in an area that is heavily wooded and sparsely populated. The victim was released at the bottom of a hill, near a small bridge on Narrow Gauge Road. After letting the victim out of the trunk, the three men saw headlights coming over the hill towards them. The three men ran to get in the stolen car and drove away.
Sherry Stone was driving the car the three men saw approaching the scene. As she started going down a steep hill, she noticed a car with no lights on parked at the end of the bridge. Stone felt like something was not right and slowed down her approach. She saw "shadows walking around." She continued her approach and as she got closer, the figures ran, jumped into the car, and drove away. When Stone got to the bottom of the hill, she saw and heard a woman on the side of the road yelling, "Please help me. Help me. Please, help me." Stone jumped out of her car and asked the victim if she was okay. The woman pleaded with Stone, "Just please help me, please help me, I've been kidnapped." The victim got into Stone's car, drove to her boyfriend's house, and called 911. Stone estimated these events occurred sometime after 10:00 p.m.
The victim's car was later recovered, and both Brown and Rice were arrested in Virginia. Two days later, Caples left for Alabama. Caples testified that the purpose of his leaving was not to evade the law, but rather to attend his father's wedding. Caples testified that when he learned he was being sought by law enforcement, he turned himself in to authorities in Alabama. Caples testified he never heard anything about stealing the victim's car, nor did he have any knowledge of what happened in the victim's home. Caples testified he left in Brown's truck, after dropping off Herbin, Brown, and Rice. Caples also testified that after the truck ran out of gas, he got into the stolen car not knowing the victim was in the trunk. Caples claimed he first knew of the victim being in the trunk after the group split-up.
On cross-examination, Caples admitted telling the police about a similar incident that occurred in Reidsville on 22 July 2003 (the same day as the incident at issue). Specifically, while Caples, Brown, Gravley, and Rice were riding around Reidsville in Brown's truck, they saw a man (Alfred White) sitting in a truck. Brown said "let's get that truck." Rice, Gravely, and Caples jumped out of Brown's truck and approached the man, asking for a light. Rice told the man to "get the f**k" out of the truck. Before taking the truck, sirens were heard by the men. At that point, the men jumped in Brown's truck and drove away.
White testified for the State on rebuttal. White testified that Caples approached him for a light, and as he fumbled for a light, Rice, Gravely, and Caples drew guns on him, and Caples told him it was a "stickup." Two of the men took the contents of White's pockets, and Caples got in White's truck and tried to drive away. However, Caples did not release the parking brake properly and could not get White's truck on to the street.
Mitchell testified he lived with his parents in Durham. Mitchell had known Caples for about five years; Rice since the beginning of the summer of 2003; and did not know Brown, McCadden, Herbin, or Gravely before 22 July 2003. Mitchell went with Caples, Rice, and Brown, riding in Brown's truck, and eventually went to Burnette's home.
Some hours later, Mitchell left in Brown's truck with Caples, Brown, Rice, McCadden and Herbin. Mitchell claimed he did not know why they were leaving or where they were going. Mitchell claimed Brown's truck was his only means of transportation at that time. Caples drove Brown's truck, and Brown sat in the bed of the truck and gave directions. Mitchell heard Brown say, "I want that car and tell Caples to stop the truck." Mitchell claimed he did not know what Brown was talking about.
The truck stopped and Herbin, Brown, and Rice walked down the street. Caples parked Brown's truck down the street, and after a short time returned to Burnette's house. Mitchell testified that just after Caples and Mitchell arrived at Burnette's house, a burgundy Chrysler pulled into the driveway behind Brown's truck. Mitchell claimed he did not notice who was in the Chrysler, but saw Gravely get in, and then the Chrysler left with Mitchell following in Brown's truck.
Brown's truck broke down on the interstate and Mitchell got into the Chrysler. On cross-examination, Mitchell admitted he knew the Chrysler was stolen, but did not know anyone was in the trunk, did not hear noise from the trunk, and never looked inside the trunk. Mitchell got out of the Chrysler at Caples' house and Gravely, Brown, and Rice left in the Chrysler. Mitchell never saw the Chrysler again.
Mitchell denied saying anything about shooting anyone. Mitchell admitted the .380 automatic pistol seized by the State was his pistol. Mitchell admitted he was carrying the gun with him at the time the victim was robbed and kidnapped. Mitchell denied he loaned the gun to anyone to use in any crime.
On 18 August 2003, Caples and Mitchell were indicted on the charges of robbery with a dangerous weapon, felony breaking and entering, first-degree kidnapping, and felony larceny. These matters came for jury trial at the 17 November 2003 criminal session of Alamance County Criminal Superior Court with the Honorable Evelyn W. Hill, presiding. On 8 December 2003, the jury found Caples and Mitchell guilty as charged.
The trial court sentenced Caples to 125-159 months for first-degree kidnapping, and 95-123 months for robbery with a dangerous weapon, felony breaking and entering, and felony larceny, to begin at the expiration of the sentence for kidnapping. The sole aggravating factor for each sentence was that the victim was "very old" pursuant to N.C. Gen. Stat. § 15A-1340.16(d)(11). No mitigating factors were found. Caples appealed.
The trial court sentenced Mitchell to 92-120 months for first-degree kidnapping. The trial court then sentenced Mitchell to 80-105 months for robbery with a dangerous weapon, felony breaking and entering, and felony larceny, to begin at the expiration of the sentence for first-degree kidnapping. The sole aggravating factor for each sentence was that the victim was "very old" pursuant to N.C. Gen. Stat. § 15A-1340.16(d)(11). No mitigating factors were found. Mitchell appealed.
Caples and Mitchell both present the following issues on appeal: (I) whether their right to a fair trial was denied when they were shackled and seated behind a tablecloth in the presence of the jury; (II) whether the trial court erred by speaking in German to a State's witness; and, as to sentencing, (III) whether the trial court erred by finding an aggravating factor; and (IV) whether the trial court committed reversible error by imposing maximum terms of imprisonment after calling the co-defendants names.
I
Defendants argue their right to a fair trial was denied when they were shackled and seated behind a tablecloth in the presence of the jury.
Defendant Caples' motion to incorporate Mitchell's argument and to be heard on this issue was allowed by the Court. The State's Motion to Adopt State's Argument I From Its Brief In Mitchell Case was also allowed.
N.C. Gen. Stat. § 15A-1031 authorizes a trial court to order the physical restraint of a defendant when the court finds it reasonably necessary. The statute requires that the judge:
(1) Enter in the record out of the presence of the jury and in the presence of the person to be restrained and his counsel, if any, the reasons for his action; and
(2) Give the restrained person an opportunity to object; and
(3) Unless the defendant or his attorney objects, instruct the jurors that the restraint is not to be considered in weighing evidence or determining the issue of guilt.
N.C.G.S. § 15A-1031 (2003). Where no constitutional grounds were raised at trial, the trial court's decision is to be analyzed pursuant to the abuse of discretion standard. State v. Holmes, 355 N.C. 719, 727-30, 565 S.E.2d 154, 161-63 (2002).
Mitchell and Caples were tried jointly with two other co-defendants. Prior to bringing in potential jurors to commence jury selection, the trial court stated it was the court's intention to have all of the defendants, including Mitchell and Caples, shackled while seated at the defense table. The trial court ordered defendants shackled by their legs, not their hands. The trial court also directed the district attorney to secure tablecloths to hide the presence of the shackles from the jury. After putting on the record the decision to shackle the defendants and the reason for the decision, the trial court asked if there were any motions or other matters to take up before the jury was called. None of the defendants voiced an objection.
Throughout the course of the trial, the defendants were consistently brought into the courtroom prior to the jurors. Likewise, the jurors left the courtroom before the defendants were removed. When Mitchell and Caples testified in their own defense, the trial court had their shackles removed, out of the presence of the jury, before they assumed the witness stand. The jury was excused after Mitchell testified and again after Caples testified so that the jury would not observe the defendants returning to the defense table and having the shackles reattached. Consequently, the record is void of any instance where the jury was able to observe defendants Mitchell or Caples shackled.
In State v. Tolley, 290 N.C. 349, 368, 226 S.E.2d 353, 368 (1976), our Supreme Court stated factors to be considered in deciding to impose restraints during trial, including: (1) the size of the court facilities and resources available, (2) nature of the offenses, and (3) mood of the audience. Here, we uphold the discretion of the trial court to impose restraints because: (1) of the seriousness of the charged offenses; (2) there were four defendants being tried together; (3) three co-defendants were expected to testify against the defendants; (4) there were a large number of interested persons present to observe the trial; (5) the victim was over 80 years old; and (6) only three uniformed deputies were available to provide security, therefore restraints were necessary to ensure the safety and security of the jurors, witnesses, and persons in the audience. In addition, the trial court took measures to ensure the jurors could not view the restraints.
There is no showing the jurors were affected by Mitchell or Caples being shackled or even aware of the restraints. See State v. Simpson, 153 N.C. App. 807, 809-10, 571 S.E.2d 274, 276 (2002). Defendants have failed to demonstrate any abuse of discretion by the trial court in imposing the use of restraints. This assignment of error is overruled.
II
Defendants next argue the trial court erred by speaking in German to a State's witness who was on the stand at the time. Specifically, defendants argue, by speaking in German to the witness, the trial court essentially vouched for the witness' credibility, which constituted an impermissible and prejudicial expression of opinion in the presence of the jury.
The trial court "may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury." N.C. Gen. Stat. § 15A-1222 (2003).
The law imposes on the trial [court] the duty of absolute impartiality. The trial [court] also has the duty to supervise and control a defendant's trial, including the direct and cross-examination of witnesses, to ensure fair and impartial justice for both parties. Furthermore, it is well recognized that [the trial court] has a duty to question a witness in order to clarify his testimony or to elicit overlooked pertinent facts.
In evaluating whether a [trial court's] comments cross into the realm of impermissible opinion, a totality of the circumstances test is utilized.
State v. Fleming, 350 N.C. 109, 125-26, 512 S.E.2d 720, 732 (1999) (internal quotations and citations omitted). "[U]nless it is apparent that such infraction of the rules might reasonably have had a prejudicial effect on the result of the trial, the error will be considered harmless." Andrews v. Andrews, 243 N.C. 779, 781, 92 S.E.2d 180, 181 (1956).
"The statutory prohibitions against expressions of opinion by the trial court contained in N.C.G.S. § 15A-1222 . . . are mandatory. [Moreover, a] defendant's failure to object to alleged expressions of opinion by the trial court in violation of this statute does not preclude his raising the issue on appeal." State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97 (1989).
Here, the State called Rudolf Muehl as a witness. After taking the stand, the following exchange occurred:
THE WITNESS: Muel [sic]. It's German. I hope you understand my German English.
THE COURT: (Court speaking in German).
THE WITNESS: (Witness speaking in German.)
THE COURT: Is it Rudolph with a "PH"?
THE WITNESS: No. It's "F". The German way.
THE COURT: And will you spell your last name.
THE WITNESS: M-U-E-H-L.
THE COURT: Madam Court Reporter, I know that you become somewhat irritated with the Court when the Court breaks into a foreign language. You may simply indicate in the official record that I spoke to the witness in German and said to him, "I speak German." That's all I said. Is that right?
THE WITNESS: That's correct.
Shortly thereafter, during this same witness' testimony, the trial court attempted to slow down the pace at which the witness was speaking. Specifically:
THE COURT: Of course. Would you be so kind as to indulge us by speaking very slowly as if you had been born in the south of the United States.
THE WITNESS: You mean down yonder here in with a southern drawl?
THE COURT: Not that fast. Can't drawl at 100 miles per hour because our court reporter also has to take it and you have such a beautiful accent we will be able to enjoy listening to you. So just as slowly as you can make yourself do it.
The statements by the trial court in German, and the trial court's attempt to reduce the speed at which a witness was talking so the witness could be understood and have his testimony properly recorded, do not express an opinion as to any fact to be decided by the jury. In addition, Rule 614(b) of the North Carolina Rules of Evidence provides, "[t]he court may interrogate witnesses, whether called by itself or by a party." N.C. Gen. Stat. § 8C-1, Rule 614(b) (2003). It is well recognized that a trial court may question a witness to clarify his testimony. State v. Ramey, 318 N.C. 457, 464, 349 S.E.2d 566, 571 (1986); accord State v. Geddie, 345 N.C. 73, 93, 478 S.E.2d 146, 156 (1996) (holding that the trial court's question to a witness was proper to clarify "street vernacular"). "When the trial [court] questions a witness to clarify his testimony or to promote an understanding of the case, such questioning does not amount to an expression of the trial [court's] opinion as to defendant's guilt or innocence." State v. Davis, 294 N.C. 397, 402, 241 S.E.2d 656, 659 (1978).
In the instant case, the trial court merely attempted to slow the pace at which the witness was speaking. The fact that the trial court commented on a witness' accent while trying to direct the witness to speak more slowly while testifying is not reversible error per se. This assignment of error is overruled.
III
Defendants next argue the trial court erred by finding an aggravating sentencing factor which was not set forth in the indictment nor determined by the jury beyond a reasonable doubt.
In the instant case, the trial court found a factor in aggravation (the victim was very old), without stipulation or admission by the defendant, or without being reflected in the jury's verdict, and sentenced defendant in the aggravated range. Pursuant to this Court's mandate in State v. Allen, 166 N.C. App. 139, 147-48, 601 S.E.2d 299, 305 (2004), aff'd in part and modified in part, 2005 N.C. LEXIS 695 (N.C., July 1, 2005), citing Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), these cases are remanded for resentencing.
Caples also filed a Motion for Appropriate Relief regarding this issue. Accordingly, Caples' motion is granted and this matter is remanded for resentencing as mandated by Blakely and Allen.
IV
In their final joint argument, defendants contend the trial court committed reversible error by sentencing defendants to the maximum terms of imprisonment after referring to defendants as cowards; babies; "little, tiny cowards and chickens"; "wimps of the world"; "group of thugs and punks"; "band of little boys"; and wishing somebody would commit the same crime to "one of [their] family members."
Here, defendants are essentially arguing, the trial court erred in finding an aggravating factor and imposing sentences in the aggravated range based upon the court's personal opinions of defendants. Because this Court supra Issue III has determined defendants are entitled to resentencing pursuant to our decision in Allen, it is unnecessary to address this issue.
Caples
Caples also individually argues: (V) the trial court committed plain error by allowing into evidence, testimony concerning a prior robbery; (VI) the trial court erred by denying Caples' motion to dismiss the charges; and (VII) he received ineffective assistance of counsel.
V
Caples contends the trial court committed plain error by allowing into evidence testimony concerning a prior attempted robbery with a dangerous weapon against Alfred White.
In State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983), our Supreme Court adopted the following test for plain error:
[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.
Odom, 307 N.C. at 660, 300 S.E.2d at 378 (internal quotations and citations omitted, omission and modifications in original).
In State v. Cummings, 352 N.C. 600, 536 S.E.2d 36 (2000), the Court stated: "Defendant has the burden of showing . . . (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." Cumminqs, 352 N.C. at 636, 536 S.E.2d at 61 (internal quotations and citations omitted).
Here, the evidence presented was admissible under Rule 404(b) of the North Carolina Rules of Evidence to show intent and absence of mistake. Rule 404(b) states:
Other crimes, wrongs, or acts. — Evidence 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. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident. Admissible evidence may include evidence of an offense committed by a juvenile if it would have been a Class A, B1, B2, C, D or E felony if committed by an adult.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003). Our Supreme Court has repeatedly held that Rule 404(b) is a rule of inclusion, with the single exception being that such evidence must be excluded if its only probative value is to show that defendant has the propensity or disposition to commit the offense charged. State v. Berry, 356 N.C. 490, 505, 573 S.E.2d 132, 143 (2002); State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990).
Caples testified he had no idea of the plans to rob the victim. However, Caples had admitted to police that he and other co-defendants attempted to take a truck from a man (Alfred White) in Reidsville earlier that same day. The evidence submitted to the jury was proper under Rule 404(b) as the evidence showed intent and absence of mistake. Accordingly, this assignment of error is overruled.
VI
Caples next argues the trial court erred in denying his motion to dismiss the charges due to insufficiency of the evidence.
In a ruling on a motion to dismiss, the trial court must determine whether there is substantial evidence of each element of the offense charged. See State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984). "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). When reviewing the evidence, the trial court must consider all evidence in the light most favorable to the prosecution, granting the State the benefit of every reasonable inference. See State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). "If the trial court determines that a reasonable inference of the defendant's guilt may be drawn from the evidence, it must deny the defendant's motion and send the case to the jury even though the evidence may also support reasonable inferences of the defendant's innocence." State v. Smith, 40 N.C. App. 72, 79, 252 S.E.2d 535, 540 (1979).
Acting in Concert
A defendant acting with another in accordance with a common purpose to commit a crime may be held guilty of another crime committed in pursuit of that common purpose even though the defendant did not personally commit the other crime. See State v. Roache, 358 N.C. 243, 306, 595 S.E.2d 381, 421 (2004). "[U]nder the acting in concert doctrine a defendant may be held guilty not only for the crime originally intended but also for `any other crime committed by the other in pursuance of the common purpose.'" Id. (quoting State v. Barnes, 345 N.C. 184, 233, 481 S.E.2d 44, 71 (1997)).
First-Degree Kidnapping
N.C. Gen. Stat. § 14-39(a) provides:
Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person, or any other person under the age of 16 years without the consent of a parent or legal custodian of such person, shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:
. . .
(2) Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony; or
(3) Doing serious bodily harm to or terrorizing the person so confined, restrained or removed or any other person. . . .
N.C.G.S. § 14-39(a) (2003). "If the person kidnapped either was not released by the defendant in a safe place or had been seriously injured or sexually assaulted, the offense is kidnapping in the first degree. . . ." N.C.G.S. § 14-39(b) (2003). In State v. Fulcher, 294 N.C. 503, 523-24, 243 S.E.2d 338, 351-52 (1978), the North Carolina Supreme Court recognized the possibility that two or more criminal offenses may arise from the same course of action. Our Supreme Court also held that a conviction of kidnapping does not violate the constitutional prohibition against double jeopardy when the restraint involved constitutes a separate act independent of and apart from the other felony. Fulcher, 294 N.C. at 524, 243 S.E.2d at 352.
Robbery With a Dangerous Weapon
In North Carolina, robbery with a dangerous weapon is defined as:
(a) 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 property from 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 . . . shall be guilty of a Class D felony.
N.C. Gen. Stat. § 14-87(a) (2003).
Felony Breaking and Entering
To obtain a conviction of felony breaking and entering, the State must show: (1) a breaking or entering; (2) into a building; (3) with an intent to commit a felony or larceny therein. N.C. Gen. Stat. § 14-54(a) (2003). "The requisite intent for felony breaking and entering need not be directly proved [if] it may be inferred from the circumstances." State v. Roberts, 135 N.C. App. 690, 696, 522 S.E.2d 130, 134 (1999).
Felony Larceny
"[T]o constitute larceny there must be a wrongful taking and carrying away of the personal property of another without his consent, and this must be done with felonious intent to deprive the owner of his property and to appropriate it to the taker's use fraudulently." State v. Bowers, 273 N.C. 652, 655, 161 S.E.2d 11, 14 (1968). Furthermore, "[t]he crime of larceny is a felony, without regard to the value of the property in question, if the larceny is: (1) From the person; or (2) Committed pursuant to a violation of [N.C.G.S. § 14-54 (felony breaking and entering)]. . . ." N.C. Gen. Stat. § 14-72(b) (2003).
Commission of the offense of felony larceny is proved when the State produces evidence that the value of the stolen goods is more than one thousand dollars ($1,000.00). N.C.G.S. § 14-72(a) (2003). For the purposes of N.C. Gen. Stat. § 14-72(a), value is the fair market value of the goods at the time of the theft. State v. Shaw, 26 N.C. App. 154, 157, 215 S.E.2d 390, 392 (1975). The retail price established by a merchant is evidence of fair market value sufficient to survive a motion to dismiss. State v. Williams, 65 N.C. App. 373, 375, 309 S.E.2d 266, 267 (1983).
Facts Relevant to the Charges
In the present case the State presented evidence showing that:
(1) co-defendant Brown saw a car we "wouldn't mind getting;" (2) Brown told Caples, Mitchell and Rice that he wanted to take the victim's car and asked them to "ride" with him; (3) Caples was one of the six men to get in Brown's truck right after this conversation; (4) Caples was the driver of Brown's truck, and Caples was driving because Brown had told Caples that he (Brown) was going to "get" the car; (5) after Brown, Rice and Herbin got out of the truck and approached the victim's house on foot, Caples waited with the truck just up the street, in sight of the three men on foot; (6) after Brown, Rice and Herbin forced their way into the victim's home at gunpoint, took her car keys, stuffed her into the trunk of her own car and drove away in the victim's car, they drove the stolen car past where the truck was waiting; (7) Caples followed the stolen car in the truck; (8) Caples rode in the stolen car, while the victim was still in the trunk; and (9) Caples went to Alabama shortly after the incident. In addition, the victim's car was a 1996 Chrysler LHS valued at approximately $7,000.00
This evidence was sufficient, taken in the light most favorable to the State, to show defendant committed the offenses of robbery with a dangerous weapon, breaking and entering, felony larceny and kidnapping either directly or under the theory of acting in concert. Therefore, the trial court did not err in denying Caples' motion to dismiss the charges. This assignment of error is overruled.
VII
Caples lastly argues he received ineffective assistance of counsel (IAC), as his counsel at trial did not file a Bruton motion, object to damaging hearsay testimony, nor request a complete recording of bench conferences, jury selection, opening or closing arguments. Attorney conduct that falls below an objective standard of reasonableness and prejudices the defense denies the defendant the right to effective assistance of counsel. An IAC claim must establish both that the professional assistance defendant received was unreasonable and that the trial would have had a different outcome in the absence of such assistance.
State v. Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001) (internal citations omitted). The reviewing "`court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies[, for t]he object of an ineffectiveness claim is not to grade counsel's performance.'" State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 248 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 697, 80 L. Ed. 2d 674, 699-700 (1984)).
Defendant cites no authority in support of his IAC claim based on the failure of trial counsel to file a Bruton motion or object to hearsay evidence. It is defendant's burden to show prejudice from any alleged substandard conduct. See State v. Poindexter, 359 N.C. 287, 290-91, 608 S.E.2d 761, 764 (2005). Here defendant shows no such prejudice. In addition, defendant must show prejudice from failure to record proceedings. See State v. Blakeney, 352 N.C. 287, 307, 531 S.E.2d 799, 814 (2000) ("[I]t is the trial court's evidentiary rulings, and not the arguments of counsel during a bench conference, that facilitate effective appellate review.") This assignment of error is overruled.
Mitchell VIII
Mitchell lastly argues the errors committed by the trial court, in the aggregate, deprived him of his right to a fair trial.
As our Supreme Court has stated in State v. May, 354 N.C. 172, 183, 552 S.E.2d 151, 158 (2001), when there is no merit to the individual alleged errors, there can be no cumulative error. Based on our conclusions supra in Issues I-IV, this assignment of error is summarily overruled.
No error at trial; remanded for resentencing.
Judge McGEE and STEELMAN concur.
Report per Rule 30(e).