Opinion
No. COA03-692
Filed July 6, 2004 This case not for publication
Appeal by defendant from judgments entered 18 December 2002 by Judge Ronald L. Stephens in Superior Court in Durham County. Heard in the Court of Appeals 3 March 2004.
Attorney General Roy Cooper, by Special Deputy Attorney General Steven M. Arbogast, for the State. Marilyn G. Ozer, for defendant-appellant.
Durham County Nos. 00 CRS 57792-95, 00 CRS 57777, 00 CRS 13322-23.
On 26 June 2000, the Durham County Grand Jury indicted defendant, Omar Lionel Reed, on one count of first-degree murder, one count of first-degree burglary, three counts of first-degree kidnapping, one count of attempted robbery with a dangerous weapon, and one count of possession of a stolen vehicle. Defendant was tried at the 4 December 2002 Criminal Session of superior court in Durham County.
At the close of the State's evidence, the trial court dismissed two of the three kidnapping charges and the charge of possession of a stolen vehicle. The jury convicted defendant of first-degree murder, and one count each of first-degree kidnapping, first-degree burglary, and attempted armed robbery. The trialcourt consolidated the first-degree kidnapping and first-degree burglary charge and sentenced defendant to a term of 151 to 191 months imprisonment. For first-degree murder, the trial court sentenced defendant to life imprisonment without parole, to run consecutively with the kidnapping/burglary sentence. The trial court arrested judgment on the attempted armed robbery charge because of the first-degree felony-murder verdict. Defendant appeals, and for the following reasons, we find no error.
Factual Background
The State's evidence at trial tended to show that in June 2002, Celeste Allen ("Celeste") and her infant daughter, her fiancé William "Kip" Teasley ("Teasley"), her mother Lillie Abdus-Sanad ("Lillie"), and friend Janice Nelson ("Janice"), all lived in a house located at 301 West Enterprise Street in Durham, North Carolina. At approximately 2:30 a.m. on 5 June 2000, Teasley, Celeste, and a guest named Rhonda Bacchus ("Rhonda") were sitting on the side porch of the house, while Lillie, Janice and Celeste's daughter were inside. Teasley went inside the house to use the bathroom, and a gray car pulled up in front of the house and parked.
Two men, defendant and Terry Green, got out of the car, approached the side porch and asked for Celeste. After a brief conversation about drugs, defendant and Green pulled out guns, took Rhonda's jacket and told her to run. Green then struck Celeste with his gun, took her leather jacket, and dragged her across the street. Meanwhile, defendant went inside the house with his gun. A few moments later, Celeste heard "a whole bunch of bumping inside the house," heard Teasley yell "Oh s____t," and then heard a gunshot. After the gunshot, Green ran to the car while Celeste ran back to the house.
Inside the house, Celeste saw Lillie kneeling in front of her bedroom and defendant holding a gun to her head. Celeste testified that defendant was asking Lillie "where was the money at?" Lillie told defendant that "she didn't know anything about any money." Defendant then noticed Celeste and pointed the gun at her, whereupon Celeste went back through the kitchen to her bedroom to get a gun. Celeste looked around the corner and saw defendant dragging Lillie through the living room toward the kitchen "with his arm around her neck" and "the gun to her head."
Celeste attempted to fire her gun, but it was not loaded. Defendant then shot at Celeste and, as Celeste testified, "when he realized that my gun wasn't loaded he pushed my mom down on the floor and ran out [of] the house." As he was leaving, defendant turned and fired his gun towards the house a few times before getting into the car with Green and driving off.
Celeste then opened the bathroom door and found Teasley unconscious on the floor with a wound to his chest, but still alive. Lillie called the police. An ambulance took both Celeste and Teasley to Duke Hospital, where Teasley later died from the gunshot wound.
Sergeant Hugh Fitzpatrick of the Durham Police Department responded to a "subject shot" call from 301 West Enterprise Street at approximately 4:08 a.m. that morning. He found Teasley lying in the bathroom with a wound to the lower chest. Celeste told Sgt. Fitzpatrick that two black males shot Teasley and then drove away in a gray Cougar or similar vehicle.
Sgt. Fitzpatrick then left the scene to respond to an "all-units" call finding a potential match to the vehicle description in the Chapel Hill Road area of Durham. When he arrived, officers had already stopped the car, and Sgt. Fitzpatrick learned that one suspect had been apprehended and the other had fled on foot. Police subsequently apprehended him approximately three hours later. Sgt. Fitzpatrick remained with the vehicle until the Criminal Investigation Division and Identification Detectives arrived.
Donna Meyers, a Crime Scene Investigator with the Durham Police Department, examined the gray Cougar on the morning of 5 June 2000. She found two handguns inside the vehicle, one in the driver's seat and the other wedged between the driver's seat sand the center console. She also found another handgun underneath an adjacent car. The handgun in the driver's seat was a nine millimeter pistol with four bullets in it. The handgun between the seat and console was a .22 caliber pistol loaded with 23 bullets. The handgun retrieved from underneath the adjacent car was a .25 caliber pistol with a silver barrel and was loaded with four bullets.
Jack Cates, an investigator with the Durham Police Department's Bureau of Alcohol, Tobacco and Firearms, also worked on this case. He testified that the cartridges in the .22 caliber pistol from the Cougar were the same type and manufacturer as the spent cartridges found at 301 West Enterprise Street.
State Bureau of Investigation Special Agent and Senior Firearms Expert R.N. Marrs analyzed the firearms, bullets, and shells recovered from defendant, the victim and the house. Agent Marrs testified that with absolute certainty the two bullets found at the scene and the bullet removed from Teasley's pelvis were fired from the .22 caliber Grendel pistol recovered from the gray Cougar. Police found bullet holes in the bathroom and kitchen doors, both made by defendant's gun.
I.
Defendant first argues that the evidence was insufficient to convict him on the charges of first-degree burglary, attempted armed robbery, and first-degree felony murder. We disagree.
In ruling on a defendant's motion to dismiss, "the trial court is to determine whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant's being the perpetrator of the offense." State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). The issue of whether the evidence presented constitutes substantial evidence is a question of law for the court. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 66, 296 S.E.2d at 652. Our Courts have repeatedly noted that "[t]he evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom; contradictions and discrepancies are for the jury to resolve and do not warrant dismissal. . . ." State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991) (citations omitted); see also, State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585-86 (1994). "If all the evidence, taken together and viewed in the light most favorable to the State, amounts to substantial evidence of each and every element of the offense and of defendant's being the perpetrator of such offense, a motion to dismiss is properly denied." State v. Mercer, 317 N.C. 87, 98, 343 S.E.2d 885, 892 (1986).
A. Burglary
First-degree burglary is: (1) the breaking and entering (2) of the dwelling house or sleeping apartment of another (3) in the nighttime (4) with the intent to commit a felony therein. State v. Goodman, 71 N.C. App. 343, 345, 322 S.E.2d 408, 410 (1984), disc. review denied, 313 N.C. 333, 327 S.E.2d 894 (1985). Defendant argues that the State's evidence was insufficient to prove the element of "breaking."
Here, at approximately 2:30 a.m. on 5 June 2000, Celeste and Rhonda were sitting outside of the house on a porch, while Teasley, the murder victim, was inside the house using the bathroom. Defendant and Green drove up to the house, got out of the car they were driving, asked to buy drugs from Celeste, and then pulled guns on the two women. Defendant and Green took Rhonda's jacket and told her to run, then Green hit Celeste on the head with a gun and dragged her across the street at gunpoint. Defendant then entered the house with his gun drawn, shot and killed Teasley in the bathroom, and then demanded money from Celeste's mother.
While defendant argues that the evidence supported an inference that he put away his gun, knocked on the door and was let in to the house, the evidence also supports the inference that defendant entered the home uninvited. In State v. Sweezy, 291 N.C. 366, 230 S.E.2d 524 (1976), our Supreme Court noted that "[i]t is well established that the mere pushing or pulling open of an unlocked door constitutes a breaking." Id. at 383, 230 S.E.2d at 535. The evidence was sufficient to convict defendant on this charge.
B. Attempted Armed Robbery
The elements of an attempted armed robbery are: "(1) the unlawful attempted taking of personal property from another, (2) [by] the possession, use or threatened use of firearms or other dangerous weapon, implement or means, and (3) danger or threat to the life of the victim." State v. Torbit, 77 N.C. App. 816, 817, 336 S.E.2d 122, 123 (1985), appeal dismissed and cert. denied, 316 N.C. 201, 341 S.E.2d 573 (1986). Defendant specifically contends that the proof fatally varied from the indictment regarding the ownership of the personal property. We disagree.
In State v. Spillars, 280 N.C. 341, 185 S.E.2d 881 (1972), our Supreme Court stated that:
[I]t is not necessary that ownership of the property be laid in a particular person in order to allege and prove armed robbery. The gist of the offense of robbery is the taking by force or putting in fear. An indictment for robbery will not fail if the description of the property is sufficient to show it to be the subject of robbery and negates the idea that the accused was taking his own property.
Id. at 345, 185 S.E.2d at 884.
Here, the indictment alleged and the evidence established that defendant entered the house at gunpoint, restrained Lillie at gunpoint there and repeatedly demanded money from her. This evidence established that defendant was attempting to take property not owned by him, and as such we overrule this assignment of error.
C. First-degree felony murder
Defendant's contentions regarding the sufficiency of the evidence to support the felony murder charge rest entirely upon his arguments in A. and B. above. As we have overruled those assignments of error regarding the burglary and attempted robbery charges, we likewise overrule this assignment of error.
Pursuant to G.S. § 14-17, "[a] murder which shall be perpetrated by means of . . . burglary, or other felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree. . . ." In accordance with this statute, the two elements of first-degree (felony) murder are: 1) a murder that was 2) committed in the perpetration of a felony. Here, the jury found that the murder was committed in the perpetration of the attempted armed robbery of Lillie and first-degree burglary. We conclude that the evidence was sufficient to convict defendant of first-degree murder under the felony murder rule.
II.
Defendant next argues that the trial court erred by denying defendant's motion to dismiss the charge of first-degree kidnapping. We disagree.
G.S. § 14-39 defines the crime of kidnapping as follows:
(a) 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, . . . 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. . . .
Id. First-degree kidnapping occurs when "the person kidnapped either was not released by the defendant in a safe place or had been seriously injured. . . ." G.S. § 14-39(b) (2001). "If the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted, the offense is kidnapping in the second degree." Id. Defendant contends that he intentionally released Lillie in a safe place, such that his conviction for first-degree kidnapping was erroneous. We disagree.
In State v. Jerrett, 309 N.C. 239, 307 S.E.2d 339 (1983), our Supreme Court stated that:
While it is true that G.S. 14-39(b) does not expressly state that defendant must voluntarily release the victim in a safe place, we are of the opinion that a requirement of "voluntariness" is inherent in the statute. G.S. 14-39(b) provides that in order for the offense to constitute kidnapping in the second degree, the person kidnapped must be released "in a safe place by the defendant . . ." (emphasis added). This implies a conscious, willful action on the part of the defendant to assure that his victim is released in a place of safety.
Id. at 262, 307 S.E.2d at 351 (emphasis in original). Therefore, where the State's evidence reasonably supports the inference that the victim escaped, the evidence is sufficient to go to the jury on the question of first-degree kidnapping. Id. at 263, 307 S.E.2d at 352.
In State v. Raynor, 128 N.C. App. 244, 495 S.E.2d 176 (1998), the defendant fled the victim's home after being overpowered by the victim. This Court held that the defendant did not release the victim in a safe place because there was no evidence of any "willful action" by the defendant to release the victim in a place of safety. Id.
Here, defendant restrained Lillie with his arms around her neck and a gun pointed to her head. When he saw Celeste emerge from the bedroom with a gun, defendant released his grip on Lillie to shoot towards Celeste. As defendant was fleeing, he turned and fired his gun back into the house at least twice. This evidence does not indicate that defendant released Lillie voluntarily; to the contrary, Celeste and her gun essentially forced defendant to release Lillie. Moreover, because defendant was firing shots into the house as he fled, a jury could conclude that the house in which Lillie was released was a not "safe place." The trial court did not err by denying defendant's motion to dismiss the kidnapping charge.
III.
Next, defendant contends that the trial court erred by refusing to instruct the jury on the lesser included offense of second-degree kidnapping.
"An instruction on a lesser included offense is only required when there is some evidence to support the particular offense." State v. Shubert, 102 N.C. App. 419, 424, 402 S.E.2d 642, 645 (1991). As noted above, the offense of second degree kidnapping occurs "[i]f the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted." G.S. § 14-39(b) (2001). This Court has stated that "in order to leave a victim in a safe place within the meaning of the statute, a `conscious, willful action on the part of the defendant to assure that his victim is released in a place of safety' [is] required." State v. Parker, 143 N.C. App. 680, 687, 550 S.E.2d 174, 178 (2001), ( quoting State v. Jerrett, 309 N.C. 239, 262, 307 S.E.2d 339, 351 (1983)).
Here, the evidence shows that Lillie escaped when defendant released his grip to fire his gun at Celeste. The evidence did not show willful action on defendant's part to release Lillie, but rather that Celeste's intervention brought about her escape. Further, when defendant shot into the house as he fled, he made the place unsafe. We overrule this assignment of error.
IV.
Defendant next argues that the trial court erred by denying his motion to compel the State to explain why it entered into a plea agreement with Green. For the following reasons, we overrule this assignment of error.
Defendant argues that "it is possible that the State did possess exculpatory evidence" regarding defendant. However, he makes no showing of what this evidence might be, or how, if at all, it might have affected the outcome of his trial. Thus, we are unable to conclude that the trial court erred. Although we reject this argument, we do so without prejudice to defendant's right to raise it by motion for appropriate relief, should he learn of exculpatory evidence.
V.
Defendant next argues that the trial court erroneously granted the State's motion to join the charge of possession of a stolen vehicle. We disagree.
G.S. § 15A-926(A) provides that:
Two or more offenses may be joined in one pleading or for trial when the offenses, whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan.
Id. The trial court's ruling on joinder issues is discretionary and will not be disturbed on appeal absent a showing of an abuse of that discretion. State v. Maness, 321 N.C. 454, 458, 364 S.E.2d 349, 351 (1988).
Here, the vehicle was connected to the other offenses because defendant used it to get to, and flee from, the scene where they occurred. Police initially stopped defendant driving the vehicle, and there they found handguns used in the other offenses. Thus, we cannot conclude that the trial court abused its discretion in granting joinder.
VI.
Next, defendant argues that the "trial court erred by basing defendant's sentencing level on convictions which belonged to another person," alleging that several of the convictions contain different spellings of defendant's name as well as different birth dates. For the following reasons, we disagree.
G.S. § 15A-1340.14(f) provides that:
A prior conviction shall be proved by any of the following methods:
(1) Stipulation of the parties.
(2) An original or copy of the court record of the prior conviction.
(3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts.
(4) Any other method found by the court to be reliable.
Additionally, "[t]he State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the court is the same person as the offender named in the prior conviction." Id.
At sentencing, the State offered the trial court an exhibit that contained defendant's sentencing worksheet, a printout of each conviction, and an NCIC record check. The trial court considered this information, and stated:
The Court is going to find based on the State's Exhibit No. 1, in total review of that document with all of the information attached thereto, to include an NCIC check with documentation and authentication of the Court, and based upon the Defendant's Exhibit presentation and no further evidence appearing, the Court finds by a preponderance of the evidence that the items submitted by the State is a true and accurate copy of his record which reflects 15 points. The Court does find that each of these convictions are his convictions, by a preponderance of the evidence, and the Court will proceed on a sentencing based on a Level 5, 15 points from the worksheet as presented.
In State v. Rich, 130 N.C. App. 113, 502 S.E.2d 49, disc. review denied, 349 N.C. 237, 516 S.E.2d 605 (1998), the defendant contended that the trial court erred "by accepting the State's offer of `an unverified computerized printout not under seal' to prove defendant's prior criminal convictions." Id. at 115, 502 S.E.2d at 51. This Court disagreed, holding that "[t]he computerized record contained sufficient identifying information with respect to defendant to give it the indicia of reliability." Id. at 116, 502 S.E.2d at 51. G.S. § 15A-1340.14(f)(4) makes it clear that the court may use "[a]ny other method found by the court to be reliable." This record reveals that the trial court reviewed and weighed the documents, and concluded that the State had shown by a preponderance of the evidence that they did reflect defendant's record. We decline to disturb the trial court's weighing of the evidence and finding that the criminal record submitted by the State contained sufficient evidence "to give it the indicia of reliability." Rich, 130 N.C. App. at 116, 502 S.E.2d at 51. We overrule this assignment of error.
VII.
Finally, defendant argues that the short-form indictment was insufficient to try him on first-degree murder because it failed to include the elements of the various theories upon which his prosecution proceeded. Our Supreme Court has affirmed the validity of short-form indictments for first-degree murder in State v. Braxton, 352 N.C. 158, 175, 531 S.E.2d 428, 438 (2000), cert. denied, 531 U.S. 1130, 148 L.Ed.2d 797 (2001), as well as other cases we are bound to follow. Thus, we overrule this assignment of error.
No error.
Judges MARTIN and GEER concur.
Report per Rule 30(e).