Opinion
No. 07-1048.
Filed April 1, 2008.
Edgecombe County No. 06CRS51988.
Appeal by defendant from judgment entered 17 May 2007 by Judge Frank R. Brown in Edgecombe County Superior Court. Heard in the Court of Appeals 4 March 2008.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Joseph E. Herrin, for the State. William H. Dowdy, for defendant-appellant.
Thomas Moore ("defendant") appeals from the denial of his motions to dismiss, the denial of his motion for appropriate relief, and the judgments entered upon jury verdicts finding him guilty of first-degree burglary and assault with a deadly weapon with intent to kill inflicting serious injury. For the following reasons, we hold no error in part and no prejudicial error in part.
The State's evidence tended to show that on 7 June 2006, Helen and Richard Overton were at their home in Macclesfield, North Carolina, when, at approximately 11:00 p.m., Helen Overton observed defendant standing at her door. Richard Overton was asleep on the couch in another room at the time. Helen Overton testified that defendant stated to her that "his car had broke [sic] down in front of the shop down the road. He said, I don't know who owns it but my car is broke [sic] down there. And I need to use your phone to call someone." Helen Overton asked defendant whom he wished to call, and he said his aunt. She then asked defendant for the phone number, and defendant stated, "It's a seven, five, three number." Helen Overton testified, "I thought to myself that's a Farmville number. Because we used to live in Farmville years ago." Helen Overton became suspicious and testified that "when he asked me to use the phone I immediately just like took one step backwards. . . . We were within 2 feet face to face. And I immediately stepped back and was going to shut the door and go get Richard." Helen Overton explained that after she stepped back, defendant brandished a gun and pushed his way inside.
Helen Overton testified that she began screaming when defendant forcibly entered her house, and that she observed "another black male coming from the front of the carport up to the steps." She believed that the other individual was carrying a gun, as well. Helen Overton stated that she then pushed the door shut and attempted to lock it in order to prevent the second individual from entering the house. As she was attempting to lock the door, defendant began hitting her hands, preventing her from locking the door. She then "turned around and backed up against the door," at which point defendant told the other individual to "kick the door in." Helen Overton testified that she then felt the door hit her in the back as it was kicked in. At that time, she also saw Richard Overton enter the room, and "[t]hat's when [defendant]started shooting. He was shooting right across in front of her face at Richard." After shooting Richard Overton, defendant pointed the gun at Helen Overton, threatening to kill her. Helen Overton pushed defendant away, and defendant pushed her back and ran out the door.
Helen Overton then locked the door and went to the kitchen, where she found Richard Overton "standing in the middle of the kitchen floor. And he was holding his chest and the blood was just spurting out." Richard Overton sustained two gunshot wounds — one to his shoulder and the other to his hand. Helen Overton retrieved a towel for her husband and then, after unsuccessfully attempting to contact emergency services, called both her daughter and her brother. Law enforcement and emergency personnel subsequently arrived and transported Richard Overton to the hospital.
Although Helen Overton did not recognize the assailants on the night of the attack, she told the police when they arrived "[t]hat Richard told her that it was the same man as last time." Richard Overton, who only saw defendant and not the other individual outside the house, told the police that the assailants were "those damn Moore boys that robbed [him] three years ago." Two days after the attack, Helen Overton identified defendant from a photographic lineup, basing the identification upon seeing him on the night of the attack.
The Overtons had filed charges against defendant and his brother, Linwood Moore, for an alleged robbery several years prior. The trial court in that case dismissed the charges against defendant, and Linwood Moore was found not guilty. The State in the instant case filed a motion in limine to exclude evidence of the prior robbery accusation against defendant and his brother by the Overtons. At the beginning of trial on 25 April 2007, the trial court denied the State's motion.
On 18 September 2006, defendant was indicted for first-degree burglary and assault with a deadly weapon with intent to kill inflicting serious injury, and on 26 April 2007, a jury found defendant guilty of both charges. The trial court continued the case for sentencing until 15 May 2007, and on 14 May 2007, defendant filed a motion for appropriate relief, requesting that the court set aside the verdict or dismiss the case due to insufficiency of the evidence. The trial court denied defendant's motion, and on 17 May 2007, the court sentenced defendant as a prior record level I offender to consecutive sentences of (1) seventy-three to ninety-seven months imprisonment for assault with a deadly weapon with intent to kill inflicting serious injury and (2) sixty-four to eighty-six months imprisonment for first-degree burglary. Thereafter, defendant gave timely notice of appeal. On appeal, defendant first contends that the trial court erred in denying his motion for appropriate relief as well as his motions to dismiss for insufficiency of the evidence made at the close of the State's evidence and at the close of all the evidence. We disagree.
By introducing evidence after the close of the State's evidence, defendant waived his right to appellate review of the denial of his motion to dismiss made at the close of the State's evidence. See N.C. R. App. P. 10(b)(3) (2007) ("If a defendant makes such a motion after the State has presented all its evidence and has rested its case and that motion is denied and the defendant then introduces evidence, his motion for dismissal or judgment in case of nonsuit made at the close of State's evidence is waived."). Accordingly, to the extent it challenges the trial court's denial of his motion to dismiss at the close of the State's evidence, defendant's argument is dismissed.
With respect to the denial of defendant's motion to dismiss at the close of all the evidence,
[w]hen ruling on a motion to dismiss, the trial court must determine whether the prosecution has presented substantial evidence of each essential element of the crime. Substantial evidence is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion. The trial court must [then] view the evidence in the light most favorable to the [S]tate, giving the [S]tate the benefit of every reasonable inference that might be drawn therefrom.
State v. Coltrane, ___ N.C. App. ___, ___, 656 S.E.2d 322, 327 (2008) (first alteration added) (internal quotation marks and citations omitted). Further, "[i]n order to withstand a motion to dismiss, the evidence, whether direct, circumstantial, or both[,] must be sufficient to draw a `reasonable inference of defendant's guilt.'" State v. Griffin, 136 N.C. App. 531, 544, 525 S.E.2d 793, 803 (quoting State v. Barnes, 334 N.C. 67, 75.76, 430 S.E.2d 914, 919 (1993)), appeal dismissed and disc. rev. denied, 351 N.C. 644, 543 S.E.2d 877 (2000).
The trial court must . . . resolve any contradictions in the evidence in the State's favor. The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness's credibility. It is concerned only with the sufficiency of the evidence to carry the case to the jury. Ultimately, the court must decide whether a reasonable inference of defendant's guilt may be drawn from the circumstances.
State v. Ellis, 168 N.C. App. 651, 656.57, 608 S.E.2d 803, 807 (2005) (emphasis added) (internal quotation marks and citations omitted). Finally, "`[i]n "borderline" or close cases, our courts have consistently expressed a preference for submitting issues to the jury. . . .'" State v. Moore, ____ N.C. App. ____, ____, 656 S.E.2d 287, 293 (2008) (omission in original) (quoting State v. Jackson, 103 N.C. App. 239, 244, 405 S.E.2d 354, 357 (1991)).
"A motion for appropriate relief is a post-verdict motion (or a post-sentencing motion where there is no verdict) made to correct errors occurring prior to, during, and after a criminal trial." State v. Handy, 326 N.C. 532, 535, 391 S.E.2d 159, 160.61 (1990) (emphasis omitted). Our standard of review from a trial court's denial of a motion for appropriate relief is well-established:
"When a trial court's findings on a motion for appropriate relief are reviewed, these findings are binding if they are supported by competent evidence and may be disturbed only upon a showing of manifest abuse of discretion. However, the trial court's conclusions are fully reviewable on appeal."
State v. Lutz, 177 N.C. App. 140, 142, 628 S.E.2d 34, 35 (2006) (quoting State v. Wilkins, 131 N.C. App. 220, 223, 506 S.E.2d 274, 276 (1998)).
"The elements of assault with a deadly weapon with intent to kill inflicting serious injury are: (1) an assault, (2) with the use of a deadly weapon, (3) with an intent to kill, and (4) inflicting serious injury, not resulting in death." State v. Tirado, 358 N.C. 551, 579, 599 S.E.2d 515, 534 (2004), cert. denied sub nom., Queen v. North Carolina, 544 U.S. 909, 161 L. Ed. 2d 285 (2005). "The elements of first-degree burglary are: [(1)] the breaking [(2)] and entering [(3)] in the nighttime [(4)] into the dwelling house or sleeping apartment [(5)] of another [(6)] which is actually occupied at the time of the offense [(7)] with the intent to commit a felony therein." State v. Singletary, 344 N.C. 95, 101, 472 S.E.2d 895, 899 (1996).
On appeal, defendant limits his argument to whether the State presented substantial evidence that he was the perpetrator of the crimes, and therefore, we need not determine whether the State presented substantial evidence of the other elements of the crimes charged. In support of his argument, defendant points to inconsistencies in the statements and testimony of the Overtons. Specifically, defendant contends "that the complaining witnesses' trial testimony as to the identification of the perpetrators, as well as the complaining witnesses' identifications of the alleged perpetrators, on the night of the alleged crimes (and failures to identify), lack credibility." (Emphasis added). Based upon this lack of credibility, defendant contends that no rational trier of fact could have found that he committed the crimes charged and that, therefore, the trial court erred in denying his (1) motions to dismiss for insufficiency of the evidence and (2) motion for appropriate relief based upon the court's failure to grant his motions to dismiss for insufficiency of the evidence. However, as stated supra, a trial court may not pass upon credibility in ruling on a motion to dismiss. See Ellis, 168 N.C. App. at 657, 608 S.E.2d at 807; accord Moore, ___ N.C. App. at ___, 656 S.E.2d at 291. Instead, "[t]he credibility issues raised by the defendant go to the weight of the evidence, not its sufficiency," State v. Lowery, 318 N.C. 54, 71, 347 S.E.2d 729, 741 (1986), and as such, "[t]he determination of the witnesses' credibility is for the jury." State v. Barrett, 343 N.C. 164, 173, 469 S.E.2d 888, 893 (1996). Therefore, the trial court did not err, either in its denial of defendant's motion to dismiss at the close of all the evidence or its denial of his motion for appropriate relief based upon the denial of his motions to dismiss. Accordingly, defendant's assignments of error are overruled.
Defendant next argues that the trial court committed plain error by admitting a firearm, a pair of latex gloves, a written report of an absent SBI forensic examiner's findings and conclusions, and testimony about that absent forensic examiner's findings and conclusions. We disagree.
Ordinarily, "we review evidentiary rulings for an abuse of discretion," State v. Petrick, ___ N.C. App. ___, ___, 652 S.E.2d 688, 691 (2007), and "[t]he test for abuse of discretion is whether the trial court's ruling was manifestly unsupported by reason or [was] so arbitrary that it could not have been the result of a reasoned decision." State v. Chapman, 359 N.C. 328, 348.49, 611 S.E.2d 794, 811 (2005) (second alteration in original) (internal quotation marks and citation omitted). However, in the instant case, defendant concedes that he failed to object at trial, and therefore, we review these assignments of error under the plain error standard of review. See N.C. R. App. P. 10(c)(4) (2007).
Before deciding that an error by the trial court amounts to "plain error," the appellate court must be convinced that absent the error the jury probably would have reached a different verdict. In other words, the appellate court must determine that the error in question "tilted the scales" and caused the jury to reach its verdict convicting the defendant. Therefore, the test for "plain error" places a much heavier burden upon the defendant than that imposed by [North Carolina General Statutes, section] 15A-1443 upon defendants who have preserved their rights by timely objection. This is so in part at least because the defendant could have prevented any error by making a timely objection.
State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83.84 (1986) (internal citations omitted). "`A reversal for plain error is only appropriate in the most exceptional cases.'" State v. Raines, 362 N.C. 1, 16, 653 S.E.2d 126, 136 (2007) (quoting State v. Duke, 360 N.C. 110, 138, 623 S.E.2d 11, 29 (2005), cert. denied, ___ U.S. ___, 166 L. Ed. 2d 96 (2006)).
Defendant first contends that the aforementioned evidence was irrelevant and prejudicial and should have been excluded pursuant to Rules 401 through 403 of the Rules of Evidence.
"The general rule regarding admission of evidence is that `[a]ll relevant evidence is admissible. . . .'" State v. Campbell, 359 N.C. 644, 672, 617 S.E.2d 1, 19 (2005) (first alteration in original) (quoting N.C. Gen. Stat. § 8C-1, Rule 402), cert. denied, 547 U.S. 1073, 164 L. Ed. 2d 523 (2006). "The admission of irrelevant evidence is generally considered harmless error." State v. Melvin, 86 N.C. App. 291, 297, 357 S.E.2d 379, 383 (1987). "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2005). "[I]n a criminal case[,] every circumstance calculated to throw any light upon the supposed crime is admissible and permissible." State v. Collins, 335 N.C. 729, 735, 440 S.E.2d 559, 562 (1994). Nevertheless, "relevant[] evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." N.C. Gen. Stat. § 8C-1, Rule 403 (2005). "`Unfair prejudice,' as used in Rule 403, means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, as an emotional one." Chapman, 359 N.C. at 348, 611 S.E.2d at 811 (internal quotation marks and citation omitted).
Here, defendant argues that the firearm was irrelevant and that its admission was prejudicial because (1) it was collected in the course of a separate investigation; (2) it was recovered five to six miles away from the Overtons' residence; and (3) forensic analysis was inconclusive as to whether any of the bullets recovered from the Overtons' home were fired from the firearm at issue. Defendant further argues that the latex gloves were erroneously admitted into evidence because (1) the gloves had been submitted to the SBI for forensic evaluation and the DNA obtained from the gloves did not connect defendant to the crime; and (2) Helen Overton stated that the assailant was not wearing gloves. Finally, defendant argues that the forensic report concerning the firearm and gloves was admitted erroneously because the underlying evidence — specifically, evidence of the firearm and gloves — was irrelevant and prejudicial.
First, defendant correctly contends that both the forensic report, to which defense counsel stipulated, and the physical evidence of the firearm and gloves failed to connect defendant to the crime at issue, and therefore, the evidence was both irrelevant and prejudicial. Neither the report nor the physical evidence "ha[d] any tendency to make the existence of any fact . . . of consequence to the determination of the action more probable or less probable than it would [have] be[en] without the evidence," N.C. Gen. Stat. § 8C-1, Rule 401 (2005), and any value that such evidence may have had was "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." N.C. Gen. Stat. § 8C-1, Rule 403 (2005). Therefore, the evidence should have been excluded. See N.C. Gen. Stat. § 8C-1, Rules 402, 403 (2005).
Nevertheless, based upon the record, we cannot conclude that the evidence was so prejudicial that the trial court erred in failing to exclude it sua sponte. Defendant's contention that the evidence created a false impression for the jury that forensic evidence supported the Overtons' claims is belied by the fact that the jury clearly was informed that the evidence did not connect defendant to the crime. Specifically, Detective Eugene Harrell("Detective Harrell"), of the Edgecombe County Sheriff's Office, testified on cross-examination:
[DEFENSE COUNSEL]: So you don't think the gloves relate to this case?
[DETECTIVE HARRELL]: At this point, no, sir.
[DEFENSE COUNSEL]: And the firearm that was recovered in some other investigation.
[DETECTIVE HARRELL]: Yes, sir, it was.
[DEFENSE COUNSEL]: Is the only reason that you related that to this investigation is that it was a .22 caliber?
[DETECTIVE HARRELL]: I felt a small caliber handgun was used during this investigation, yes, sir.
[DEFENSE COUNSEL]: And that's the only reason.
[DETECTIVE HARRELL]: The only reason, yes, sir.
[DEFENSE COUNSEL]: You don't have any idea whether this may have been a weapon used or not?
[DETECTIVE HARRELL]: No, sir, I do not.
[DEFENSE COUNSEL]: In this case?
[DETECTIVE HARRELL]: No, sir.
Although the evidence was admitted erroneously pursuant to Rules 401 through 403 of the Rules of Evidence, we are not "convinced that absent the error the jury probably would have reached a different verdict." Walker, 316 N.C. at 39, 340 S.E.2d at 83. Therefore, admission of the evidence did not constitute plain error, and accordingly, defendant's arguments are overruled. Defendant further argues that both the forensic report and Detective Harrell's testimony concerning the report's findings should have been excluded as inadmissible hearsay.
"`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C. Gen. Stat. § 8C-1, Rule 801(c) (2005). Hearsay is inadmissible except when allowed by statute or the Rules of Evidence. See N.C. Gen. Stat. § 8C-1, Rule 802 (2005).
First, with respect to Detective Harrell's testimony, the record fails to demonstrate that any portion of his testimony concerning the firearm and gloves constituted hearsay. Detective Harrell did not testify as to the specific contents of the forensic report; instead, he testified as to his knowledge of the relation of the firearm and gloves to the instant case. Specifically, he testified that the firearm and gloves were sent off for analysis, that he later got the items back, and that he did not believe that the gloves were connected to the instant case and did not know whether the firearm was connected to the instant case. At no point did Detective Harrell testify as to the contents of the report, and therefore, defendant's hearsay argument with respect to Detective Harrell's testimony is overruled. With respect to the forensic report itself, our Supreme Court has held that such forensic reports satisfy the business records exception to the hearsay rule. See State v. Forte, 360 N.C. 427, 437, 629 S.E.2d 137, 144, cert. denied, ___ U.S. ___, 166 L. Ed. 2d 413 (2006). In the instant case, however, the State failed to introduce the evidence "by the testimony of the custodian or other qualified witness." N.C. Gen. Stat. § 8C-1, Rule 803(6) (2005).
Although defense counsel stipulated to the contents of the forensic report prepared by Special Agent Stephanie Barnhouse, who did not testify at trial, defense counsel did not stipulate to the introduction of the report into evidence, and therefore, defendant is not precluded from arguing on appeal that the report was hearsay. Cf. Conner v. Cont'l Indus. Chems., Inc., 123 N.C. App. 70, 77, 472 S.E.2d 176, 181 (1996).
Nevertheless, a "defendant is not entitled to a new trial based on trial errors unless such errors were material and prejudicial." State v. Alston, 307 N.C. 321, 339, 298 S.E.2d 631, 644 (1983). "Defendant has the burden of showing that he was prejudiced by the admission of the evidence." State v. Wingard, 317 N.C. 590, 599.600, 346 S.E.2d 638, 645 (1986).
Here, although the admission of the forensic report constituted error, we hold that such error did not rise to the level of plain error. The forensic report stated that the analyses performed on the firearm at issue were "inconclusive." Specifically,
[Special Agent Stephanie Barnhouse] would have testified that she analyzed the projectiles [found in the Overtons' home]. She would have explained the procedure whereby she, through her professional methods, was able to compare the fired projectiles with the firearm. And in conclusion, she states, in her lab report, . . . that there is insufficient agreement of microscopic detail to conclusively determine whether any of these projectiles was [sic] or was [sic] not fired[] from that firearm.
The admission of the report stating that the results of the tests performed on the firearm were "inconclusive" could not have "`tilted the scales' and caused the jury to reach its verdict convicting the defendant." Walker, 316 N.C. at 39, 340 S.E.2d at 83. Therefore, the trial court did not commit plain error, and defendant's argument is overruled.
Finally, defendant contends that the forensic report and Detective Harrell's testimony concerning the report's findings violated his Sixth Amendment right to confrontation.
As this Court recently explained, [u]nder the Confrontation Clause of the Sixth Amendment, a defendant is guaranteed the right to effectively cross-examine a witness. In Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004), the United States Supreme Court held that where testimonial evidence is at issue, it is only admissible based on a finding that the witness is unavailable for trial and that the defendant has had a prior opportunity for cross-examination. Where non-testimonial evidence is involved, however, the ordinary rules of evidence apply in regards to admissibility.
Statements are testimonial if they were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Once this Court determines that a statement was testimonial, we then must determine whether the trial court properly ruled the declarant was unavailable and whether defendant had an opportunity to cross-examine the declarant. State v. Tate, ___ N.C. App. ___, ___, 653 S.E.2d 892, 897 (2007) (internal quotation marks, alterations, and citations omitted).
As discussed supra, Detective Harrell's testimony did not constitute hearsay. Because hearsay is a threshold condition for a Crawford Confrontation analysis, see id. at ___, 653 S.E.2d at 898, Detective Harrell's testimony was not admitted in violation of defendant's rights under the Sixth Amendment. Accordingly, this portion of defendant's argument is overruled.
With respect to the forensic report, our Supreme Court has held that such reports do not constitute testimonial statements and therefore are not barred by Crawford. Specifically,
Because defendant did not stipulate to the admission of the report, defendant has not waived his Confrontation Clause argument. Cf. State v. English, 171 N.C. App. 277, 283.84, 614 S.E.2d 405, 410 (2005).
[t]hey do not fall into any of the categories that the Supreme Court defined as unquestionably testimonial. These unsworn reports, containing the results of [the out-of-court SBI agent's] objective analysis of the evidence, along with routine chain of custody information, do not bear witness against defendant. Instead, they are neutral, having the power to exonerate as well as convict. Although we acknowledge that the reports were prepared with the understanding that eventual use in court was possible or even probable, they were not prepared exclusively for trial and [the out-of-court SBI agent] had no interest in the outcome of any trial in which the records might be used.
Forte, 360 N.C. at 435, 629 S.E.2d at 143 (internal citation omitted). Therefore, in the case sub judice, the forensic report — containing the results of the analysis performed on the firearm and the DNA analysis performed on the latex gloves — does not constitute a testimonial statement admitted in violation of defendant's rights under the Confrontation Clause. See id. at 433.35, 629 S.E.2d at 142.43 (DNA analysis); State v. Walker, 170 N.C. App. 632, 635, 613 S.E.2d 330, 333 (firearms analysis), disc. rev. denied, 359 N.C. 856, 620 S.E.2d 196 (2005). Accordingly, defendant's argument is overruled.
Defendant's remaining assignments of error not argued in his brief are deemed abandoned. See N.C. R. App. P. 28(b)(6) (2007).
No Error in part; No Prejudicial Error in part.
Judges WYNN and BRYANT concur.
Report per Rule 30(e).