Opinion
No. COA12–215.
2012-12-4
STATE of North Carolina v. Nicholas Dwayne McKEY, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General M. Elizabeth Guzman, for the State. Gilda C. Rodriguez, for defendant-appellant.
Appeal by defendant from judgment entered 21 July 2011 by Judge Richard W. Stone in Forsyth County Superior Court. Heard in the Court of Appeals 27 August 2012. Attorney General Roy Cooper, by Assistant Attorney General M. Elizabeth Guzman, for the State. Gilda C. Rodriguez, for defendant-appellant.
GEER, Judge.
Defendant Nicholas Dwayne McKey appeals from his conviction for robbery with a firearm. In his sole argument on appeal, defendant contends that the trial court erred in denying his motion to dismiss. Based on our review of the evidence, including a still photo and a video of the robbery, we hold that the State presented substantial evidence that defendant was the perpetrator of the charged offense and, therefore, that the trial court properly denied the motion to dismiss.
Facts
The State's evidence tended to show the following facts. On 19 November 2010, Harsha Patel was working the desk at the Traveler's Inn Hotel in Winston–Salem, North Carolina. On that date, Ms. Patel checked defendant into the Traveler's Inn as a guest. While completing defendant's check-in form, Ms. Patel verified defendant's identity by asking for defendant's driver's license and recording onto the check-in form the name on the license and the state that had issued the license. According to Ms. Patel, defendant stayed at the Traveler's Inn four or five days, including 21 November 2010. Ms. Patel observed defendant five to six times during defendant's stay at the Traveler's Inn. She saw him both in the hotel and selling newspapers at a nearby intersection. On several occasions, but not all, she saw defendant wearing a “[l]ight and bright green” jacket.
On 21 November 2010, Shamarr Smith was working as a cashier at the Fast Track Shell gas station and convenience store located about 300 to 400 feet from the Traveler's Inn. Mr. Smith was mopping and preparing to close his shift at 11:00 p.m. when a man entered the Fast Track. Although Mr. Smith's back was to the door, Mr. Smith glanced out of the corner of his eye and saw the man was wearing a “bright green jacket,” “blue jeans, a doo-rag, and sunglasses.” The man grabbed Mr. Smith by the collar and said, “This is a robbery, I have a gun. I just want the money.” The man forced Mr. Smith behind the counter and instructed Mr. Smith to open the register, put the money into one of the store's plastic shopping bags, and get on his knees. Mr. Smith complied. The register contained just over $100.00 at the time of the robbery.
The man then fled the Fast Track. Mr. Smith's back was turned to the robber for most of the encounter, and Mr. Smith was unable to identify the man who robbed him. Mr. Smith was puzzled, however, as to why a robber would wear “that bright of a jacket.” The Fast Track's video surveillance system recorded the robbery from several vantage points.
The police were called immediately after the robbery. While speaking to the police, Mr. Smith noticed shoe prints in the mop water that Mr. Smith believed were made by a Nike Shox shoe. He showed the prints to the police and told them that he had previously owned Nike Shox shoes and was familiar with the “circular patterns on the heel of the shoe.” Mr. Smith knew that he had not made the prints because Mr. Smith was wearing boots with a different type of tread that night.
Detective Gregory Allen Dorn with the Winston–Salem Police Department investigated the Fast Track robbery. Detective Dorn viewed the Fast Track video surveillance recordings after they were seized pursuant to the investigation. Detective Dorn personally observed defendant at 10:30 a.m. on 1 December 2010 when defendant was selling newspapers at an intersection located an “eighth of a mile, quarter mile at the most” from the Traveler's Inn. On that date, Detective Dorn observed defendant wearing a “neon green or yellow ... windbreaker-type pullover,” large sunglasses, white tennis shoes, and dark blue jeans. Detective Dorn noted that the color and style of the jacket was similar to the jacket he had seen in videos and photographs gathered during his investigation of the Fast Track robbery.
Detective Dorn arrested defendant for the Fast Track robbery on 9 December 2010. Upon arresting defendant, Detective Dorn noted that defendant was wearing the same dark jeans, white tennis shoes, black doo-rag, and sunglasses that he had seen defendant wearing on 1 December 2010. Defendant was indicted for robbery with a dangerous weapon on 7 March 2011.
At trial, defendant did not present any evidence. The jury found defendant guilty of robbery with a firearm. The trial court sentenced defendant to a presumptive-range term of 78 to 103 months imprisonment, and defendant timely appealed to this Court.
Discussion
Defendant's sole argument on appeal is that the trial court erred in denying defendant's motion to dismiss the charge of robbery with a deadly weapon 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). “ ‘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 (2000) (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)).
“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).
Defendant contends that the State did not present substantial evidence that defendant was the perpetrator of the robbery. He argues that there was no direct testimony identifying defendant as the robber, and defendant was primarily linked to the robbery through two “commercially manufactured” products: the green jacket and the Nike Shox shoes.
Defendant is essentially arguing that circumstantial evidence of his guilt is not sufficient to defeat a motion to dismiss. However, “ ‘[c]ircumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence. If the evidence presented is circumstantial, the court must consider whether a reasonable inference of defendant's guilt may be drawn from the circumstances. Once the court decides that a reasonable inference of defendant's guilt may be drawn from the circumstances, then it is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.’ “ Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (internal citation omitted) (quoting Barnes, 334 N.C. at 76, 430 S.E.2d at 919).
In State v. Griffin, ––– N.C.App. ––––, ––––, 713 S.E.2d 185, 187,appeal dismissed,365 N.C. 353, 718 S.E.2d 149 (2011), this Court held that circumstantial evidence presented by the State constituted substantial evidence that the defendant was the perpetrator of the charged offense of obtaining property by false pretenses. There, the evidence included (1) a surveillance video establishing that defendant took a purse containing the victim's credit card at 9:06 a.m., (2) evidence that the credit card was used at 9:30 a.m. to purchase a laptop computer at a Wal-mart located only 3.4 miles from the scene of the theft, and (3) evidence under Rule 404(b) of the North Carolina Rules of Evidence showing that the defendant had been involved in another similar crime. Id. at ––––,713 S.E.2d at 187.
Based on that evidence, this Court rejected the defendant's argument that his motion to dismiss should have been granted simply because “it is possible that another person could have used the credit card.” Id. at ––––, 713 S.E.2d at 187. The Court concluded: “[W]e need not rule out every hypothesis of innocence to conclude that the circumstantial evidence is sufficient for a reasonable person to infer that defendant was the person who used the stolen credit card shortly after he stole it.” Id. at ––––, 713 S.E.2d at 187.
Here, as in Griffin, the State relied, in part, upon video evidence to establish defendant's identity as the perpetrator of the charged offense. The State produced a surveillance video recording of the entire Fast Track robbery from multiple views. The video recording shows the robber's face, height, and build. At trial, the jury had the opportunity to compare defendant's appearance and stature to that of the robber as shown in the surveillance video. Thus, the video recording here, like the recording presented in Griffin, provided evidence from which the jury could determine defendant perpetrated the charged offense.
Moreover, the State produced the following circumstantial evidence: a photograph, taken no more than two days before the robbery at the Traveler's Inn, picturing defendant wearing clothing similar to the clothing worn by the robber; evidence that defendant was staying at a hotel located near the robbery site on the date of the crime; testimony that the robber wore clothing—including a distinctive green jacket—similar to that worn by defendant consistently throughout a four- to five-day period around the time of the robbery; testimony that defendant was wearing the same jacket and other clothing 10 days after the robbery; evidence that the robber left a shoe print matching the tread of the shoes worn by defendant at the time of defendant's arrest; and testimony that defendant's clothing, at the time of his arrest, matched the clothing worn by the robber except for a single item, the green jacket, which was never recovered.
Taken together, and viewed in the light most favorable to the State, this evidence constituted substantial evidence that defendant was the perpetrator of the robbery. Defendant's motion to dismiss was, therefore, properly denied.
Defendant nonetheless cites State v. Turnage, 190 N.C.App. 123, 660 S.E.2d 129,rev'd in part, 362 N.C. 491, 666 S.E.2d 753 (2008), and State v. Myers, 181 N.C.App. 310, 639 S.E.2d 1 (2007), as supporting his position. However, this Court's opinion in Turnage, upon which defendant relies, was reversed by our Supreme Court on the relevant issue. See State v. Turnage, 362 N .C. 491, 494–95, 666 S.E.2d 753, 756 (2008) (holding evidence presented at trial regarding defendant's identity as perpetrator of crime was sufficient to withstand motion to dismiss).
Defendant's reliance on Myers is also misplaced. In Myers, this Court affirmed the trial court's dismissal of second degree murder charges when the State presented insufficient evidence that the defendants perpetrated the murder. 181 N.C.App. at 315–16, 639 S.E.2d at 4–5. There, our Court reviewed the pertinent evidence as follows:
[T]he evidence tends to establish that: defendants were in the vicinity of the [pertinent] residence sometime in the early morning of 10 July 2001, that [the victim's] body was found in this vicinity several hours later, that defendants argued and struggled with an unidentified individual who groaned at one point during the struggle, and that defendant Myers appeared to have blood and dirt on his shirt after the struggle. We note that none of the State's witnesses identified [the victim] as the man involved in the struggle with defendants, or as the man [a witness] saw in the road near the [pertinent] residence. Furthermore, there was testimony indicating that there were other unidentified males in the area around the same time the murder is alleged to have occurred.
Id. at 315, 639 S.E.2d at 4–5. Unlike the present case, the commission of the crime in Myers was not recorded in full by a video surveillance recording that captured the perpetrator's face, build, and clothing—including a distinctive jacket. Moreover, here, the video evidence was coupled with a photograph picturing a man affirmatively identified as defendant. The appearance and clothing of the robber in the video matched that of defendant in the photograph. Myers is, thus, distinguishable.
In sum, because the State presented substantial evidence that defendant was the perpetrator of the robbery, we hold that the trial court did not err in denying defendant's motion to dismiss.
No error. Chief Judge MARTIN and Judge STROUD concur.
Report per Rule 30(e).