Opinion
NO. COA10-1031 No. 08 CRS 107611, 107613 107619
08-02-2011
STATE OF NORTH CAROLINA v. EBONY YVONNE JOHNSON
Attorney General Roy Cooper, by Special Deputy Attorney General Elizabeth Leonard McKay, for the State. Robert W. Ewing, for Defendant
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Guilford County
Appeal by defendant from judgments entered 5 May 2010 by Judge R. Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals 9 February 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Elizabeth Leonard McKay, for the State.
Robert W. Ewing, for Defendant
ERVIN, Judge.
Defendant Ebony Yvonne Johnson appeals from judgments sentencing her to consecutive terms of a minimum of 77 months and a maximum of 102 months imprisonment based upon her conviction for attempted robbery with a dangerous weapon, a minimum of 2 9 months and a maximum of 44 months imprisonment based upon her conviction for conspiracy to commit robbery with a dangerous weapon, and to a minimum of 100 months and a maximum of 129 months imprisonment based upon her conviction for assault with a deadly weapon with intent to kill inflicting serious injury, with each sentence to be served in the custody of the North Carolina Department of Correction. After careful consideration of Defendant's challenges to the trial court's judgments in light of the record and the applicable law, we conclude that, while the trial court erred by failing to dismiss the conspiracy to commit robbery with a dangerous weapon charge due to a fatal variance between the indictment returned against Defendant in that case and the evidence presented at trial, Defendant's remaining challenge to the trial court's judgments lack merit, so that her convictions for attempted robbery with a dangerous weapon and assault with a deadly weapon with the intent to kill inflicting serious injury should remain undisturbed.
I. Factual Background
A. Substantive Facts
1. State's Evidence
On 9 November 2008, Melvin Sutton and Charlie Rogers were outside an Elks Lodge when Defendant walked by with two other women. After Mr. Sutton and Charlie Rogers conversed with the women, Mr. Sutton gave Defendant his cell phone number.
On 11 November 2008, Mr. Sutton received two calls from Defendant requesting that he meet her at the Northwinds Apartments. Shortly after Mr. Sutton's arrival at Northwinds, which occurred at approximately 7:00 p.m., he received a third call from Defendant, in which she instructed him to drive further back into the complex. As a result, Mr. Sutton drove deeper into Northwinds, saw Defendant walking towards his vehicle, and invited her into the front passenger seat.
Less than one minute after Defendant entered Mr. Sutton's vehicle, Tony Rogers jumped into the back seat. Mr. Rogers entered through the rear driver's side door, refrained from closing the door, and positioned himself so that his legs remained outside the vehicle. At that point, Mr. Rogers pointed a gun at Mr. Sutton's head and demanded that he "give it up."
After handing Mr. Rogers his wallet, Mr. Sutton jumped out of the vehicle and closed the vehicle door on Mr. Rogers' legs. Although Mr. Sutton attempted to flee the scene, he realized that he had sustained a gunshot wound to his chest. After the perpetrators left the area, Mr. Sutton was eventually able to call for help. As a result of his injuries, Mr. Sutton underwent surgery on fourteen occasions; sustained liver, lung, and major artery damage; lost his gallbladder and a rib; spent two months in intensive care; was unable to return to work on a full-time basis for at least eight months; and still has trouble walking.
A shell casing and Mr. Sutton's wallet, from which no money had been removed, were found in Mr. Sutton's car. Investigating officers found Mr. Rogers hiding in the back seat of a vehicle registered in his name shortly after the robbery. A search of Mr. Rogers' vehicle revealed the presence of a live pistol round and a purse containing Defendant's identification card.
On 12 November 2008, Defendant called Fidel Martin and requested that he pick her up from her apartment. Shortly after Mr. Martin picked Defendant up, she showed him a black gun which she later told him had been used in a robbery. Mr. Martin drove to an area near several lakes and parked on a side street. Mr. Martin saw Defendant exit the vehicle carrying the gun and waited for approximately five minutes before Defendant returned without the gun. A number of Defendant's relatives claimed that, prior to being taken into custody, Defendant admitted that she and Mr. Rogers had tried to commit a robbery, that someone had been shot, and that she had disposed of the gun. According to Mr. Martin and Defendant's family members, Defendant never claimed that Mr. Rogers acted unilaterally or induced her to become involved in the robbery involuntarily.
In the days following the shooting, Defendant admitted to investigating officers that Mr. Rogers was her boyfriend and that, after the couple had argued, she had called Mr. Sutton and asked him to meet her at the Northwinds Apartments. Although Defendant acknowledged that a man had entered Mr. Sutton's vehicle, she claimed to be uncertain as to whether the intruder was Mr. Rogers or someone else. Defendant denied any involvement in the robbery or any knowledge as to what had happened to the gun.
2. Defendant's Evidence
According to Defendant's trial testimony, Mr. Sutton came to the Northwinds Apartments on 11 November 2008 in order to have a sexual assignation with her. Defendant made this arrangement with Mr. Sutton after having had an argument with Mr. Rogers. Upon Mr. Sutton's arrival at Northwinds, Defendant entered his car. While she was in Mr. Sutton's vehicle, Defendant received a call from Mr. Rogers in which he informed her of his plans to rob Mr. Sutton. A few moments after Defendant hung up on him, Mr. Rogers entered the rear seat. Defendant never saw a gun in Mr. Rogers' possession. After hearing Mr. Rogers tell Mr. Sutton to "give it up," Defendant got out of the car. As she left, Defendant heard a gunshot. Defendant picked up the gun before leaving the scene in accordance with instructions she received from Mr. Rogers and subsequently gave it to Mr. Martin. Defendant denied that she and Mr. Rogers had planned the robbery.
B. Procedural History
On 12 November 2008, warrants for arrest charging Defendant with conspiracy to commit robbery with a dangerous weapon, attempted robbery with a dangerous weapon, and assault with a deadly weapon with the intent to kill inflicting serious injury were issued. On 16 February 2 009, the Guilford County grand jury returned bills of indictment charging Defendant with attempted robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and assault with a dangerous weapon with intent to kill inflicting serious injury. The charges against Defendant came on for trial before the trial court and a jury at the 3 May 2010 criminal session of the Guilford County Superior Court. At the close of the State's evidence and at the close of all the evidence, Defendant unsuccessfully moved to dismiss all of the charges that had been lodged against her for insufficiency of the evidence.
On 5 May 2010, the jury returned verdicts finding Defendant guilty as charged. At the ensuing sentencing hearing, the trial court found that Defendant had one prior record point and should be sentenced as a Level II offender. Based upon these determinations, the trial court sentenced Defendant to consecutive terms of a minimum of 77 months and a maximum of 102 months imprisonment based upon her conviction for attempted robbery with a dangerous weapon, a minimum of 29 months and a maximum of 44 months imprisonment based upon her conviction for conspiracy to commit robbery with a dangerous weapon, and a minimum of 100 months and a maximum of 129 months imprisonment based upon her conviction for assault with a deadly weapon with intent to kill inflicting serious injury, with each sentence to be served in the custody of the North Carolina Department of Correction. Defendant noted an appeal to this Court from the trial court's judgments.
II. Legal Analysis
A. Conspiracy to Commit Robbery with a Dangerous Weapon
In her first challenge to the trial court's judgments, Defendant contends that the trial court erred by denying her motion to dismiss the charge of conspiracy to commit robbery with a dangerous weapon on the grounds that there was insufficient evidence to submit the charge to the jury. This contention has merit.
When a defendant moves for dismissal, the trial court must determine whether the State has presented substantial evidence of each element of the offense charged and substantial evidence that the defendant was the perpetrator of such offense. If substantial evidence of each element is presented, the motion to dismiss is properly denied. Substantial evidence is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion. In ruling on a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom.State v. Pickens, 346 N.C. 628, 646, 488 S.E.2d 162, 172 (1997) (internal citations and quotation marks omitted). A failure on the part of the State to prove that the defendant committed the crime alleged in the indictment, as compared to another criminal offense, subjects the indictment in question to dismissal for insufficient evidence. State v. Waddell, 279 N.C. 442, 445, 183 S.E.2d 644, 646 (1971) (stating that "[a] variance between the criminal offense charged and the offense established by the evidence is in essence a failure of the State to establish the offense charged") . For that reason, "a challenge to a fatal variance between indictment and proof may be raised by a motion to dismiss for insufficient evidence." State v. Pulliam, 78 N.C. App. 129, 132, 336 S.E.2d 649, 651 (1985) (citations omitted); see also State v. Benton, 10 N.C. App. 280, 281, 178 S.E.2d 81, 82-83 (1970); State v. McDowell, 1 N.C. App. 361, 363, 161 S.E.2d 769, 770-71 (1968). As a result, in order to successfully challenge the trial court's refusal to dismiss the conspiracy indictment for insufficiency of the evidence on variance grounds, Defendant must show " a fatal variance between the offense charged [in the indictment] and the proof as to '[t]he gist of the offense.'" Pickens, 346 N.C. at 646, 488 S.E.2d at 172 (quoting Waddell, 279 N.C. at 445, 183 S.E.2d at 646). In other words, Defendant must show a " variance regarding an essential element of the offense." Id. (citing State v. Williams, 295 N.C. 655, 663, 249 S.E.2d 709, 715 (1978)). In challenging her conspiracy conviction, Defendant claims that a fatal variance exists between the allegations of the indictment charging her with conspiracy to commit robbery with a dangerous weapon and the evidence actually presented at trial.
As a result of Defendant's failure to specifically identify the variance issue at the time that she moved for a dismissal at trial, the State contends that this issue is not properly preserved for appellate review and suggests that this Court may only review Defendant's contention utilizing a "plain error" standard of review. However, given that Defendant's argument has obvious merit and given that "it is difficult to contemplate a more 'manifest injustice' to a convicted defendant than that which would result from sustaining a conviction that lacked adequate evidentiary support, particularly when leaving the error in question unaddressed has double jeopardy implications," we conclude that "it is appropriate to address defendant's variance-based [claim] on the merits" pursuant to N.C.R. App. P. 2. State v. Gayton-Barbosa, 197 N.C. App. 129, 135, 676 S.E.2d 586, 590 (2009).
The Guilford County grand jury charged Defendant with conspiracy to commit robbery with a dangerous weapon on the basis of an indictment alleging that:
The jurors for the State upon their oath present that on or about . . . [Defendant] unlawfully, willfully and feloniously did conspire with Tony Lamont Rogers, Jr. to commit the felony of Robbery With a Dangerous Weapon against the State of North Carolina.According to Defendant, the record contains no evidence tending to show the existence of a conspiracy between Defendant and Mr. Rogers to rob the State of North Carolina with a dangerous weapon. Instead, Defendant contends that the undisputed evidence tended to show that Mr. Sutton, rather than the State of North Carolina, was the intended victim of any conspiracy between Defendant and Mr. Rogers and that this variance between the allegations of the conspiracy indictment and the State's proof is a fatal one.
"[I]t is of vital importance that the name of the person against whom the offense was directed be stated with exactitude." State v. Scott, 237 N.C. 432, 433, 75 S.E.2d 154, 155 (1953) (citations omitted). As a result, when an " indictment charges the defendant with a crime against someone other than the actual victim, such a variance is fatal." State v. Abraham, 338 N.C. 315, 340, 451 S.E.2d 131, 144 (1994) (citing State v. Bell, 270 N.C. 25, 29, 153 S.E.2d 741, 744
(1967)). "'The purpose of setting forth the name of the person who is the subject on which an offense is committed is to identify the particular fact or transaction on which the indictment is founded, so that the accused may have the benefit of one acquittal or conviction if accused a second time.'" Scott, 237 N.C. at 433-34, 75 S.E.2d at 155 (quoting State v. Angel, 29 N.C. 27, 29 (1846)). Although the State argues that "[i]t was not necessary in the indictment for conspiracy to commit robbery with a dangerous weapon . . . to name Mr. Sutton as the victim in the same way that Mr. Sutton must be named in the substantive crime indictment for attempted robbery with a dangerous weapon," the State has neither successfully distinguished the line of cases cited above nor cited any authority in support of this assertion. Based upon the decisions cited above, there is clearly a fatal variance between the allegations of the conspiracy indictment returned against Defendant and the proof offered against her at trial. In the event that Defendant's conspiracy conviction were allowed to stand, she would, at least in theory, be vulnerable to future prosecution for the crime that the State actually proved on the basis of a new indictment naming Mr. Sutton. Id. As a result, we conclude that the trial court erred by denying Defendant's motion to dismiss the conspiracy charge and that the trial court's judgment stemming from Defendant's conviction for that offense should be reversed.
The State is, of course, at liberty to obtain the issuance of an indictment charging Defendant with conspiring with Mr. Rogers to rob Mr. Sutton and to seek to have Defendant convicted of that charge in a later trial.
B. Assault with a Dangerous Weapon with Intent to Kill Inflicting Serious Injury
Secondly, Defendant argues that the trial court erred by denying her motion to dismiss the assault with a deadly weapon with intent to kill inflicting serious injury charge on the grounds that there was insufficient evidence to support the submission of that charge to the jury. We do not find this argument persuasive.
As we indicated in discussing Defendant's challenge to the validity of her conspiracy conviction, "'all of the evidence favorable to the State, whether competent or incompetent, must be considered, such evidence must be deemed true and considered in the light most favorable to the State[.]" State v. Nicholson, 78 N.C. App. 398, 400, 337 S.E.2d 654, 656 (1985) (quoting State v. Witherspoon, 293 N.C. 321, 326, 237 S.E.2d 822, 826 (1977)). "[D]iscrepancies and contradictions therein are disregarded and the State is entitled to every inference of fact which may be reasonably deduced therefrom,'" in determining the sufficiency of the evidence to support Defendant's felonious assault conviction. Id. (quoting Witherspoon, 293 N.C. at 326, 237 S.E.2d at 826).
The essential elements of assault with a deadly weapon with intent to kill inflicting serious injury in violation of N.C. Gen. Stat. § 14-32(a) are "(1) an assault, (2) with a deadly weapon, (3) with intent to kill, (4) inflicting serious injury, (5) not resulting in death." State v. Reid, 335 N.C. 647, 654, 440 S.E.2d 776, 780 (1994) (citing State v. Meadows, 272 N.C. 327, 331, 158 S.E.2d 638, 640 (1968); and State v. Cain, 79 N.C. App. 35, 46, 338 S.E.2d 898, 905, disc. rev. denied, 316 N.C. 380, 342 S.E.2d 899 (1986)). In her brief, Defendant admits that an assault occurred and does not appear to dispute the existence of adequate evidence tending to show both the use of a deadly weapon and the fact that Mr. Sutton sustained a serious injury. Instead, Defendant focuses her challenge to the trial court's ruling on the "intent to kill" element, arguing that "[t]he evidence presented by the State was not sufficient to show the element that the defendant, nor her co-defendant [Mr. Rogers], intended to kill Mr. Sutton."
As we understand her brief, Defendant acknowledges that a showing that Mr. Rogers intended to kill Mr. Sutton would suffice to support a finding that the "intent to kill" element existed in her case given the presence of evidence tending to show that she and Mr. Rogers acted in concert in connection with the robbery of Mr. Sutton. See Reid, 335 N.C. at 655, 440 S.E.2d at 780-81 (stating that "'[i]t is not . . . necessary for a defendant to do any particular act constituting at least part of a crime in order to be convicted of that crime under the concerted action principle so long as he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime") (quoting State v. Joyner, 297 N.C. 349, 357, 255 S.E.2d 390, 395 (1979)).
Proof of an assault with a deadly weapon inflicting serious injury not resulting in death does not, as a matter of law, establish a presumption of intent to kill. Such intent must be found by the jury as a fact from the evidence. State v. Ferguson, 261 N.C. 558, 135 S.E.2d 626 (1964). An intent to kill may be inferred from the nature of the assault, the manner in which it was made, the conduct of the parties, and other relevant circumstances. State v. Revels, 227 N.C. 34, 40 S.E.2d 474 (1946). An intent to kill is a matter for the State to prove, State v. Allen, 186 N.C. 302, 119 S.E. 504 (1923), and is ordinarily shown by proof of facts from which an intent to kill may be reasonably inferred. State v. Cauley, 244 N.C. 701, 94 S.E.2d 915 (1956).State v. Thacker, 281 N.C. 447, 455, 189 S.E.2d 145, 150 (1972), disapproved on other grounds in North Carolina v. Butler, 441 U.S. 369, 372, 60 L. Ed. 2d 286, 291, 99 S. Ct. 1755, 1757 (1979); see also State v. Jones, 18 N.C. App. 531, 534, 197 S.E.2d 268, 270 (stating that "[a] person who deliberately fires a pistol into the face of his victim at point-blank range must be held to intend the normal and natural results of his deliberate act") , cert. denied, 283 N.C. 756, 198 S.E.2d 726 (1973).
A careful review of the record satisfies us that the State presented ample evidence at Defendant's trial from which a jury could reasonably infer that Mr. Rogers intended to kill Mr. Sutton. Among other things, the State's evidence tended to show that Defendant and her boyfriend conspired with each other to rob Mr. Sutton; that Defendant lured Mr. Sutton to the scene where the robbery was set to occur; that Mr. Rogers jumped into Mr. Sutton's car unexpectedly and demanded that Mr. Sutton "give it up;" that Mr. Rogers punched Mr. Sutton in the face after entering the car; that Mr. Rogers pointed a gun at Mr. Sutton's head during the course of the attempted robbery; that Mr. Sutton believed that Mr. Rogers would kill him; that Mr. Sutton attempted to escape; that Mr. Sutton sustained very serious injuries as a result of a chest wound inflicted by Mr. Rogers; and that Defendant carried the gun from the scene and later disposed of it. Although Defendant's testimony contradicted much of this evidence and although other portions of the record might, as Defendant contends, support an inference that Mr. Rogers' gun discharged accidentally when Mr. Sutton attempted to slam the car door on his legs, we must consider the evidence in the light most favorable to the State in the course of reviewing Defendant's challenge to the sufficiency of the evidence to support her assault conviction. When the evidence is viewed in accordance with the applicable standard of review, it is clearly sufficient to support a finding that Mr. Rogers intended to kill Mr. Sutton. State v. Reives, 29 N.C. App. 11, 13, 222 S.E.2d 727, 728 (holding that the record contained sufficient evidence that the defendant intended to kill the victim where the defendant and the victim engaged in an altercation and the shooting of the victim occurred shortly after the defendant pointed a gun at a third party bystander and pulled the trigger, despite defendant's claim that the shooting was accidental), disc. review denied, 289 N.C. 728, 224 S.E.2d 675 (1976). As a result, we conclude that the trial court correctly concluded that the State presented substantial evidence tending to show Defendant's guilt of assault with a deadly weapon with intent to kill inflicting serious injury and did not err by denying Defendant's dismissal motion directed to that charge.
III. Conclusion
Thus, for the reasons set forth above, we conclude that Defendant received a fair trial that was free from prejudicial error with respect to the cases in which she was charged with attempted robbery with a dangerous weapon and assault with a deadly weapon with intent to kill inflicting serious injury. As a result, we find no error in the trial court's judgments relating to those charges. We do, however, conclude that the trial court erred by denying Defendant's motion to dismiss as to the charge of conspiracy to commit robbery and reverse her conviction for that offense.
NO ERROR IN PART; REVERSED IN PART.
Judges ELMORE and STEELMAN concur.
Report per Rule 30(e).