Opinion
No. COA14–999.
03-17-2015
STATE of North Carolina v. Mark Dwayne GOVAN.
Attorney General Roy Cooper, by Assistant Attorney General M. Denise Stanford, for the State. Sharon L. Smith, for defendant-appellant.
Attorney General Roy Cooper, by Assistant Attorney General M. Denise Stanford, for the State.
Sharon L. Smith, for defendant-appellant.
ROBERT N. HUNTER, JR., Judge.
Mark Govan (“Defendant”) appeals from a judgment after a jury found him guilty of robbery with a firearm. Defendant contends that the trial court erred by (1) denying his motion to dismiss for insufficient evidence, (2) failing to instruct on and submit assault with a deadly weapon as a possible verdict to the jury, and (3) failing to poll the jury properly upon Defendant's motion. We disagree that the errors Defendant raises constitute reversible error in his trial.
I. Factual & Procedural History
On 5 November 2007, Defendant was indicted on one count of robbery with a dangerous weapon. From 19 March to 21 March 2014, Defendant was tried in Randolph County Superior Court before the Honorable David L. Hall. The State's evidence was presented at trial in the following sequence.
Brian Walker (“Walker”) testified that at approximately 6:00 p.m. on 1 October 2007, he drove his employee, Sequoia Brand (“Brand”), home from work. When Walker stopped his truck near Brand's home in High Point, he counted out and paid Brand approximately eighty-five dollars for his work that day. After he drove off, Walker noticed a four-door Saturn driving in the opposite direction. Walker turned down a few side streets to exit Brand's neighborhood and meet up with his younger brother, Adam, for an evening run. When Walker stopped his truck to turn onto the main road, he was surprised to see the Saturn right behind his bumper.
Walker further testified that as he proceeded for ten miles toward Adam's apartment, the Saturn followed his truck closely, “[c]lose enough for [him] to notice.” At one point during the commute, when both vehicles were stopped at an intersection, the driver of the Saturn got out and walked toward Walker's truck. Walker saw him approach, grew concerned, and “[p]eeled on off.” Walker continued on for a few miles before turning into Adam's apartment complex parking lot. Walker did not see Adam's car in the parking lot and called him. Adam informed Walker that “Me and mama's eating at Barbecue Joe's.” Annoyed, Walker pulled his truck into a parking spot and asked Adam “Bring me, you know, chicken or whatever. Bring me something.”
Then, Walker testified, he watched the Saturn turn into the parking lot, drive past his truck, turn around at the end of the lot, and then park right next to Walker's truck. Four men immediately exited the Saturn. Walker thought, “[w]ell, this ain't good.” Walker continued to speak with Adam and kept an eye on the four men “[j]ust standing around” the outside of the Saturn Soon one man approached the driver's side of Walker's truck and another approached the passenger's side. Walker held his cell phone in his left hand; in his right, he gripped his .40 caliber Smith & Wesson.
Walker testified that once he flipped closed his cell phone, one man grabbed Walker's left arm, shouting “[g]ive me your mother-fu-“ and [w]e gonna this and that and another[.]” The man opened the driver's side door and tried to yank Walker out of the truck. Walker gave up his phone and, during the struggle, noticed the man's “eyes get big” when he spotted Walker's gun. The man shouted: “He's got a gun; he's got a gun.”
Walker got shot instantly one, two, three times from an unknown direction, stumbled out of his truck, shot at the man who grabbed his cell phone, watched that man and two others sprint off, and then fired two shots at Defendant, whom he saw “jumping in the front seat” of the Saturn. Defendant was hit twice and bent over as he asked: “What did you shoot me for? I didn't do anything.” Walker slumped back into his driver's seat and ordered Defendant to “get on the ground.” Defendant laid on the pavement and waited with Walker for medical assistance to arrive.
Walker also read to the jury a signed statement he provided to police a few days after the incident. Concerning what transpired after Walker parked at Adam's apartment complex, Walker's statement was read as follows:
When I pulled in, I was waiting on my little brother, Adam Walker, who lives in the 200 building, to eat barbecue from Barbecue Joe's. As soon as I hung up, those guys pulled in the next—pulled in next to my driver's door and all four got out. They were walking around, talking about”
....
They were walking around, talking about switching drivers, and I felt something wasn't right. My window was down and one of them came to my window and grabbed me, yelling for my phone. I gave him the phone and pulled my gun. My door came open because he was about to pull me from the truck.
Once they saw my gun, they were yelling, “He's got a gun,” and then I heard shots. I didn't know I was shot in the back. I felt blood running and heard more shots, so I started shooting back.
The guy that was there with me shot was not the shooter or the one at my window. As soon as I heard—as soon as I heard I had a gun, he ran to the driver's side of their car and I thought he was getting a gun.
Detective Anthony Cugino (“Detective Cugino”) of the Archdale Police Department arrived at the scene just prior to emergency medical services (“EMS”). Detective Cugino testified that he saw Walker inside of his truck and Defendant outside of the Saturn, both suffering from gunshot wounds. EMS arrived and tended to Walker and Defendant. Detective Cugino spoke briefly with Walker and learned that multiple suspects had fled the scene on foot. Detective Chris Jones (“Detective Jones”) arrived shortly after, and the detectives conducted a protective sweep of the area. Soon after, the detectives were approached by an off-duty Deputy Sheriff with Guilford County and directed toward where the suspects fled. Detective Jones stayed at the crime scene while Detective Cugino pursued the suspects.
Detective Cugino testified that once he arrived, he found three black males—Demetrius, Chris, and Defendant's brother, Anthony—who all met Walker's descriptions. Detective Cugino then exited his vehicle, drew his weapon, and ordered the suspects on the ground. Demetrius and Anthony complied and assumed a prone position. Chris went behind a large tree, and Detective Cugino heard a “sound[ ] like a metal object, something hitting metal” coming from that direction. Chris then came out from behind the tree and assumed a prone position. Detective Cugino detained Demetrius, Anthony, and Chris and took them to the station for questioning.
Detective Sergeant David F. Jones (“Sergeant Jones”) of the Archdale City Police Department was the lead investigator on the case. Sergeant Jones testified that he arrived at the crime scene a few hours after the shootings. After gathering information from the other detectives, Sergeant Jones examined the crime scene and went to investigate the “metal clanging” sound Detective Cugino reported. Sergeant Jones discovered a semiautomatic nine-millimeter handgun with its hammer pulled back “as if it was ready to [shoot] or had already [fired]” bullets that leave shell casings identical to the three found at the crime scene. A few days later, after Defendant had been released from the hospital, Sergeant Jones interviewed Defendant at his residence in High Point. During this interview, Defendant provided and signed the following written statement:
Demitrius came to my house and picked me and my brother up. We rode around High Point for a while. Then we went and pick up Chris. Chris said he need a lick and Demetrius said Chris had a gun, but I never seen the gun. Then we seen a man in a black truck. He let some man out. Demitrius went to talk to the dude.
Then we was riding behind the truck for a long time. Then we got to some apartment and parked right beside the truck. Chris got out and went somewhere. I was sitting in the car. Demetrius and my brother got out. Demetrius came to my door and told me to drive. I got out and walked around to the driver's seat. Then I heard Demetrius say, “Get his phone.” Then I heard gunshots [phonetic]. I looked up. My brother and Demetrius was running. Then the dude looks at the car and seen me and start shooting. I got hit two times. Then I got—then I got out, looking for help. Seen Chris was looking around for Demetrius and I told him to help me, I'd been shoot [phonetic]. Then Chris walked up to the man's truck and start shooting. Then he ran, and me and the dude were trying to get help for ourselves.
Sergeant Jones further testified that based on his training and experience, the term “lick” means to “obtain something ... in a criminal way, whether it be a robbery, whether it be stealing, whether it be drugs.” Specifically, the State elicited the following exchange:
Q. [Sergeant Jones,] going back to the term “need a lick,” have you heard that terminology before throughout your career in police work?
A. Yes, I have. “Need”
Q. Go ahead.
A. “need a lick”
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
A. —“got a lick,” “gonna get a lick,” all of those are terms that's been provided to me in my training and experience through the years of obtaining witness and suspect statements to where someone's meaning to obtain something in a—in a criminal way, whether it be a robbery, whether it be stealing, whether it be drugs.
At the close of the State's evidence, Defendant moved to dismiss for insufficient evidence, and the trial court denied the motion. Defendant did not testify at trial in his own defense but renewed his motion to dismiss, which the court again denied.
Outside of the jury's presence, the court held a jury charge conference and advised the parties of its intention to instruct the jury on the substantive charge of robbery with a firearm and the theory of acting in concert. Defendant requested that a substantive charge of assault with a deadly weapon be submitted as a possible verdict to the jury. The trial court denied this request on the ground that it did not believe the charge was warranted. On 21 March 2014, the jury found Defendant guilty of robbery with a firearm. The court sentenced Defendant to a term of 80 to 105 months imprisonment. Defendant appeals.
II. Analysis
A. Sufficiency of “Acting in Concert” Evidence
Defendant first argues on appeal that the trial court erred in denying his motion to dismiss the robbery with a dangerous weapon charge because the evidence was insufficient to show he acted with a common plan or purpose with Demetrius, Chris, or Anthony to rob Walker. We disagree.
This Court employs a de novostandard to review a trial court's denial of a motion to dismiss for insufficient evidence. See State v. Smith,186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). Under this standard, this Court “considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (citations and quotation marks omitted). The inquiry 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.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (citation and internal quotation marks omitted). “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). “[A]ll evidence is considered in the light most favorable to the State, and the State receives the benefit of every reasonable inference supported by that evidence.” State v. Abshire, 363 N.C. 322, 328, 677 S.E.2d 444, 449 (2009) (citations and internal quotation marks omitted). In other words, we review the evidence presented for its sufficiency—and not its weight—which is a matter properly left for the jury. State v. McNeil, 359 N.C. 800, 804, 617 S.E.2d 271, 274 (2005). Therefore, “if there is substantial evidence—whether direct, circumstantial, or both—to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.” Id.(brackets, citations, and quotation marks omitted).
Furthermore, we must review the “sufficiency of the evidence to support a conviction ... with respect to the theory of guilt upon which the jury was instructed.” State v. Wilson, 345 N.C. 119, 123, 478 S.E.2d 507, 510 (1996) (citation omitted). Because the State tried Defendant for robbery with a dangerous weapon under the theory of acting in concert, “the State need not prove that the defendant committed any act which constitutes an element of the crime with which he is charged.” State v. Cox, 303 N.C. 75, 86, 277 S.E.2d 376, 383 (1981) (citation omitted). Rather, the State's evidence need only address whether Defendant acted in concert in the commission of the offense and, therefore, need only “be sufficient to support a finding that the defendant was present, actually or constructively, with the intent to aid the perpetrators in the commission of the offense should his assistance become necessary and that such intent was communicated to the actual perpetrators.” State v. Sanders, 288 N.C. 285, 290–91, 218 S.E.2d 352, 357 (1975).
Our Supreme Court has concluded that “[a] person is constructively present during the commission of a crime if he is close enough to provide assistance if needed and to encourage the actual execution of the crime.” State v. Gaines, 345 N.C. 647, 675–76, 483 S.E.2d 396, 413 (1997) (citation omitted). Furthermore, “[t]he communication or intent to aid, if needed, does not have to be shown by express words of the defendant but may be inferred from his actions and from his relation to the actual perpetrators.”Sanders, 288 N.C. at 291, 218 S.E.2d at 357. It is true that “[a] defendant's mere presence at the scene of the crime does not make him guilty ... even if he sympathizes with the criminal act and does nothing to prevent it.” State v. Capps, 77 N.C.App. 400, 402–03, 335 S.E.2d 189, 190 (1985). However, it is equally true that an individual's service as a “get away” driver meets the constructive presence required for purposes of an armed robbery conviction. See, e.g., State v. Pryor, 59 N.C.App. 1, 9, 295 S.E.2d 610, 616 (1982).
Here, the State presented sufficient evidence from which the fact finder could determine that Defendant's actions exceeded “mere presence” at the scene of the crime. The State showed that Defendant and his brother were picked up from his residence by Demetrius, who then picked up Chris, which comprised the four men identified as being involved in the robbery. Walker's testimony places Defendant in the Saturn that closely followed behind Walker's truck for approximately ten miles. Furthermore, the evidence shows that Defendant was in the Saturn when Demetrius approached Walker's truck while both vehicles were stopped at an intersection.
Defendant's written statement to Sergeant Jones reveals that he was a passenger in the Saturn when he learned that Chris had a gun and needed a “lick.” Defendant recognized that they were “riding behind [Walker's] truck for a long time.” Defendant admitted that after the Saturn parked next to Walker's truck, Demetrius told Defendant to drive, and that Defendant got out and walked over toward the driver's seat. Furthermore, Sergeant Jones testified that “lick” is slang for, among other things, obtaining money illegally, such as by way of robbery.
Walker's trial testimony places Defendant outside of the Saturn “[j]ust standing around” with the three other men who exited the Saturn after parking next to Walker. Walker's written statement places Defendant with the three men “walking around, talking about switching drivers,” before Demetrius grabbed Walker's arm and initiated the robbery. Walker's written statement provided that as soon as the men discovered that Walker had a gun, Defendant “ran to the driver's side of their car and [Walker] thought [Defendant] was getting a gun.” Walker later testified that after he got shot three times in the back, he turned and saw Defendant “jumping in the front seat of the [car]” or already in the driver's seat of the car.
We find, when viewed in the light most favorable to the State, there was sufficient evidence to support the elements of robbery with a dangerous weapon under a theory of acting in concert, such that whether Defendant actually acted in concert with Demetrius and Chris in robbing Walker was appropriately a question for the jury. Therefore, the trial court did not err in denying Defendant's motion to dismiss.
B. Lesser–Included Jury Charge
Defendant next contends that the trial court erred in failing to submit assault with a deadly weapon as a possible verdict to the jury. We disagree.
It is well settled that “[a]n instruction on a lesser-included offense must be given only if the evidence would permit the jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater.” State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771 (2002) (citation omitted). However, “[w]here the State's evidence is positive as to each element of the offense charged and there is no contradictory evidence relating to any element, no instruction on a lesser included offense is required .”State v. Thomas, 325 N.C. 583, 594, 386 S.E.2d 555, 561 (1989) (citation omitted).
The elements of the crime of robbery with a firearm or other dangerous weapon are as follows: “(1) the 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. Olson, 330 N.C. 557, 566, 411 S.E.2d 592, 597 (1992) (citation omitted). “To be found guilty of robbery with a dangerous weapon, the defendant's threatened use or use of a dangerous weapon must precede or be concomitant with the taking, or be so joined by time and circumstances with the taking as to be part of one continuous transaction.” Id.(citation omitted). However, “[w]here a continuous transaction occurs, the temporal order of the threat or use of a dangerous weapon and the taking is immaterial.” Id.(citation omitted).
Defendant challenges the second element of robbery with a dangerous weapon and argues that “there was evidence from which the jury could have reasonably concluded that the robbery of Walker's cell phone was not occasioned by the use or threatened use of a firearm.” Defendant's contention is that “Walker never saw the man who shot him from behind and he was only fired at after drawing his own gun.”
It is true that the record indicates that Demetrius initiated the robbery without the use of a dangerous weapon; however, the record shows that Chris's use of the gun while Demetrius tried to rob Walker was one continuous transaction, so joined in time and circumstances as to be inseparable. Therefore, the temporal order of events is of no consequence, and the State presented substantial evidence of every element of robbery with a dangerous weapon. Because Defendant presented no evidence, those elements were not negated. Therefore, we find no error in the trial court's denial of Defendant's request to instruct the jury on the lesser-included offense of assault with a deadly weapon.
C. Jury Poll
Defendant's last argument is that the trial court erred by “prevent[ing him] from making a timely request for a jury poll by releasing the jury immediately after the guilty verdict was read.” We disagree.
“The right to a poll of the jury in criminal actions is firmly established by Article I, Section 24 of the Constitution of North Carolina and by statute.” State v. Black, 328 N.C. 191, 197, 400 S.E.2d 398, 402 (1992). N.C. Gen.Stat. § 15A–1238 provides that “[u]pon the motion of any party made after a verdict has been returned and before the jury has dispersed,the jury must be polled.” N.C. Gen.Stat. § 15A1238 (2013) (emphasis added). The right to poll the jury is waived, however, if it is not exercised prior to the jury's discharge. See Black, 328 N.C. at 198, 400 S .E.2d at 403 (holding that defense counsel waived his right to poll the jury when his request came after the jury was discharged); Lipscomb v. Cox, 195 N.C. 502, 506, 142 S.E. 779, 780 (1928) (“[I]t should be clearly understood that the right to poll a jury can be waived ... and that the poll of the jury must be had immediately upon the return of the verdict in open court and before debate or discussion thereof [.]” (citation omitted)); State v. Littlejohn, 19 N.C.App. 73, 75, 198 S.E.2d 11, 12 (1973) (“[T]his right [to a jury poll] must be exercised at the time the jury returns its verdict or before the jury is discharged, otherwise the right is deemed to have been waived.”). Furthermore, while best practice dictates that the trial judge explicitly inquire as to whether either party wishes to poll the jury, it is not required; ultimately, the responsibility lies with trial counsel. State v. Carmon, 156 N.C.App. 235, 245, 576 S.E.2d 730, 738 (2003) (holding that it was not plain error for the trial judge to dismiss the jury without asking the defendant if he wished to poll the jury and concluding that “[i]t was the responsibility of defendant to make this request, even if at an inopportune time”).
Here, after the jury unanimously found Defendant guilty of robbery with a firearm, the trial court read the verdict aloud and the jury affirmed. The trial court then thanked the jury again for its service and briefly explained that the next phase was Defendant's sentencing hearing and invited the jurors to watch. The trial judge relieved the jury of the rules put in place and then immediately asked the State and defense counsel individually if they were ready to proceed with sentencing. Both affirmed. Specifically, the trial court asked defense counsel, “[A]re you ready to proceed, sir?” Defense counsel answered “Yes” and made no motion to poll the jury at that time.
The trial court then asked the jurors to raise their hand if they planned to watch the sentencing hearing. All jurors but one raised a hand, and the trial court allowed this juror to leave the courtroom. We note that once the juror left at this time the jury was effectively “dispersed” for purposes of N.C. Gen.Stat. § 15A–1238, and Defendant's right to poll the jury was waived. See Black, 328 N.C. at 198, 400 S.E.2d at 403 (explaining that “once the jury is dispersed after rendering its verdict and later called back, it is not the same jury that rendered the verdict”). The trial court proceeded with the sentencing hearing and stated in front of the remaining jurors that Defendant was currently serving a sentence for armed robbery. Defense counsel then left the courtroom for a brief period of time. Only when defense counsel returned to the courtroom did he request that the jury be polled. Because Defendant failed to timely request a polling of the jury prior to when the jury was dispersed, Defendant waived his right to poll the jury.
III. Conclusion
For the foregoing reasons, we find no error in the below court.
NO ERROR.
Judges BRYANT and STROUD concur.
Report per Rule 30(e).
Opinion
Appeal by defendant from judgment entered 21 March 2014 by Judge David L. Hall in Randolph County Superior Court. Heard in the Court of Appeals 3 February 2015.