Opinion
No. COA11-53
Filed 16 August 2011 This case not for publication
Appeal by defendant from judgments entered 18 August 2010 by Judge W. Allen Cobb, Jr., in New Hanover County Superior Court. Heard in the Court of Appeals 25 May 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General R. Marcus Lodge, for the State. William D. Spence for defendant-appellant.
New Hanover County Nos. 09 CRS 60412-14.
Defendant Tyquan Rasaij Lane appeals from judgments entered after he was convicted of robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, felony breaking and entering, second degree kidnapping, and possession of a firearm by a felon. After careful review, we find no error.
Background
On 14 September 2009, Bobby Ray Piggott, the victim, was playing dominoes on the front porch of his house with his son Derrick Jackson and his roommate Bryan Rivers. While Mr. Piggott was inside his house getting a drink, two men with handguns ran onto the porch. One man, who was later identified by Mr. Piggott and Mr. Rivers as defendant, wore blue jeans, a white T-shirt, a hat, and a black bandana across his mouth. The other man, who was later identified by Mr. Piggott as Troy Wilson, wore a dark colored shirt, camouflage or fatigue shorts, and a red bandana across his mouth. Mr. Jackson ran into the house yelling, "[t]hey got guns, they got guns," then ran out the side door to a nearby store where he called the police. Mr. Rivers put his hands up and then also ran to the nearby store.
The two men then ran into Mr. Piggott's house and demanded his money. Mr. Piggott gave them $400 from his pocket. The men then demanded any other money located in the house. When Mr. Piggott denied having any more money, Mr. Wilson hit him on the head with his gun and defendant hit him across the nose with his gun. Mr. Piggott then took the men into his bedroom and gave them another $300. The men demanded Mr. Piggott's "work," which he claimed he did not have. Defendant searched the bedroom while Mr. Wilson held his gun on Mr. Piggott. No additional items were taken from the house and the men spent several minutes dividing Mr. Piggott's $700 between them.
The term "work" is a reference to Mr. Piggott's illegal drugs.
The men then asked Mr. Piggott where his gun was located, and he told them it was "out back." The robbers forced Mr. Piggott to lead them to a storage building behind the house and began to search it. Defendant contemplated taking one of Mr. Piggott's motorcycles that was in the storage building. Soon thereafter, one of the men looked out the window and saw a police officer approaching the house. Mr. Wilson demanded that Mr. Piggott help them avoid arrest. Mr. Piggott said there was a "manhole" in the closet of the storage building that gave access to the space under the building. The two men began to remove the contents of the closet to clear the access. Mr. Wilson took off his bandana, and Mr. Piggott could see his face as they stood side by side. Defendant went down into the access area, but came back when he discovered that there was no way out. Defendant no longer had his mask on and stood about two feet away from Mr. Piggott. When both men went down the manhole, Mr. Piggott escaped and told the police what happened.
Mr. Wilson and defendant were apprehended by the police after they were seen fleeing from Mr. Piggott's house. One of the officers brought Mr. Wilson to Mr. Piggott who identified him as one of the two people who robbed him. Another officer placed defendant in the back of his patrol car, which was at the end of Mr. Piggott's block. An officer drove Mr. Piggott to the patrol car where he identified defendant as the second person involved in the robbery. When defendant was searched, a knife was found in his pocket as well as a large quantity of money with blood on it. The blood on the money was later determined through DNA evidence to be Mr. Piggott's.
Defendant was indicted on charges of robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, assault with a deadly weapon inflicting serious injury, felony breaking and entering, second degree kidnapping, and possession of a firearm by a felon. Mr. Piggott identified defendant in court as one of the men who had robbed him. Mr. Rivers also identified defendant in court as one of the robbers.
The jury found defendant guilty of robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, felony breaking and entering, second degree kidnapping, and possession of a firearm by a felon. Defendant was sentenced to 103-133 months for the robbery and conspiracy convictions, 34-50 months for the kidnapping and possession of a firearm convictions, and 10-12 months for the breaking and entering conviction. Defendant timely appealed to this Court.
Discussion
Defendant argues that: (1) the trial court committed plain error in denying his motion to suppress Mr. Piggott's in-court and out-of-court identifications; (2) the trial court erred by denying his motion to dismiss the kidnapping charge; (3) the trial court erred by denying his motion to dismiss the conspiracy to commit armed robbery charge; and (4) the trial court committed plain error in its instructions to the jury regarding conspiracy. We will discuss each of defendant's arguments in turn.
I. Identification Testimony
First, defendant argues that the trial court erred in denying his motion to suppress Mr. Piggott's out-of-court and in-court identifications because the show-up procedure was impermissibly suggestive and created a substantial likelihood of misidentification. We disagree.
Defendant in this case filed a pre-trial motion to suppress, which was denied during trial; however, defendant failed to object to Mr. Piggott's testimony at trial. Because "a pretrial motion to suppress . . . is not sufficient to preserve for appeal the issue of admissibility of evidence," State v. Grooms, 353 N.C. 50, 66, 540 S.E.2d 713, 723 (2000), cert. denied, 534 U.S. 838, 151 L. Ed. 2d 54 (2001), defendant has not preserved this issue for review. Consequently, as defendant recognizes, our review is limited to determining whether the trial court committed plain error in denying the motion to suppress. "[A] prerequisite to our engaging in a 'plain error' analysis is the determination that the [trial court's action] constitutes 'error' at all." State v. Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468, cert. denied, 479 U.S. 836, 93 L. Ed. 2d 77 (1986). In this case, we conclude that the trial court did not err, much less commit plain error, in denying defendant's motion to suppress.
When reviewing the trial court's order denying a motion to suppress, it is well established that the trial court's findings of fact "are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting." State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001). The trial court's conclusions of law must be supported by the findings of fact and "reflect[] a correct application of applicable legal principles to the facts found." State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997).
Here, the trial court found as fact, inter alia:
26. No officer or witness made any suggestive statements to the victim prior to the show-up identification procedure with Wilson.
27. After seeing Wilson, the victim immediately stated that he was positive that Wilson, who was wearing the brown shirt and fatigue shorts, was one of the men who had just robbed him.
28. Within a couple of minutes after identifying Wilson, the victim was placed into a patrol car and driven a short distance (within the same block) to where officers had apprehended the defendant.
29. During his brief transport, the officer who was driving the victim did not attempt to influence the victim or discuss specifics of who they had in custody.
30. Upon viewing the defendant, who was seated in the back of another patrol car wearing a white T-shirt and blue jeans with short dreads for hair, the victim was asked if he recognized the defendant.
31. The victim positively identified the defendant as the other individual who had just robbed him.
32. The victim did so without hesitation or uncertainty.
Defendant presents a general argument that findings of fact 26 and 29 are incomplete and not supported by the evidence. Defendant does not cite any authority and does not present a coherent argument regarding the sufficiency of the evidence to support the findings. Nevertheless, upon review of the evidence presented on voir dire, we hold that the trial court's findings of fact are supported by the evidence.
Defendant does, however, specifically assert that the trial court failed to include a finding of fact that Mr. Piggott overheard someone say "[we] got the other one" on the officer's microphone. While there was testimony to support such a finding, we hold that the absence of the finding does not prejudice defendant in any way since there was no material conflict in the evidence at voir dire. See State v. Vick, 341 N.C. 569, 580, 461 S.E.2d 655, 661 (1995) ("[I]f there is no material conflict in the evidence on voir dire, it is not error to admit the challenged evidence without making specific findings of fact.).
Next, we examine the trial court's conclusions of law. The trial court concluded that the show-up "was not so impermissibly suggestive as to violate [defendant's] right to due process of law[,]" and that, "even if impermissibly suggestive, [the show-up] was reliable and did not produce a substantial likelihood of misidentification, given the totality of the circumstances. . . ." Defendant argues that these conclusions are erroneous and that the show-up was impermissibly suggestive and produced a substantial likelihood of misidentification.
Our courts must follow a two-step process in evaluating whether a show-up is so suggestive as to create a substantial likelihood of irreparable harm. State v. Marsh, 187 N.C. App. 235, 239, 652 S.E.2d 744, 746 (2007), overruled on other grounds by State v. Tanner, 364 N.C. 229, 695 S.E.2d 97 (2010). "First, the Court must determine whether the identification procedures were impermissibly suggestive. Second, if the procedures were impermissibly suggestive, the Court must then determine whether the procedures created a substantial likelihood of irreparable misidentification." Id. (citation and quotation marks omitted). Whether there is a substantial likelihood of irreparable misidentification depends on the totality of the circumstances. State v. Fisher, 321 N.C. 19, 23, 361 S.E.2d 551, 553 (1987).
The identification procedure used in this case was a show-up, which is "the practice of showing suspects singly to witnesses for purposes of identification." State v. Turner, 305 N.C. 356, 364, 289 S.E.2d 368, 373 (1982). Show-ups are inherently suggestive because the victim is likely to assume that the police have asked him to identify someone that they suspect is guilty of the crime being investigated. Id. Show-ups are not, however, " per se violative of a defendant's due process rights." Id.
Assuming, arguendo, that the show-up was impermissibly suggestive, we hold that the trial court did not err in determining that the show-up did not create a substantial likelihood of irreparable misidentification. This Court has established five factors to consider when making such a determination:
"(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation."
State v. Rawls, ___ N.C. App. ___, ___, 700 S.E.2d 112, 118-19 (2010) (quoting State v. Washington, 192 N.C. App. 277, 296-97, 665 S.E.2d 799, 811 (2008)).
The trial court applied these five factors to Mr. Piggott's identification of defendant. In its order denying the motion to suppress, the trial court concluded that: (1) the victim had ample time to view the robbers at the time of the crime; (2) the victim's attention was "strong and focused"; (3) the victim gave a highly accurate description to the police; (4) the victim's identification was "firm and unequivocal"; and (5) only a few minutes elapsed between the crime and the victim's identification. Defendant argues that Mr. Piggott had a very limited opportunity to see the faces of the intruders without their bandanas. Our Supreme Court has held that "[t]he victim's limited opportunity for observation goes to the weight the jury might place upon h[is] identification rather than its admissibility." State v. Ricks, 308 N.C. 522, 528, 302 S.E.2d 770, 773 (1983). Defendant also asserts, without citing any evidence in the record, that Mr. Piggott's primary focus was on escaping from the house rather than concentrating on identifying the robbers. Despite defendant's speculative assertions about Mr. Piggott's ability to observe and identify defendant, we hold that the trial court properly considered the applicable five-part test and concluded, based on the evidence, that the there was no substantial likelihood of misidentification.
Defendant further argues that the trial court committed plain error by allowing Mr. Piggott's in-court identification of defendant because it was influenced by the impermissibly suggestive out-of-court identification. The trial court found, and we agree, that the victim's out-of-court identification of defendant did not produce a substantial likelihood of irreparable misidentification. "Since the out-of-court identification was admissible, there is no danger it impermissibly tainted the in-court identification. Therefore, [Mr. Piggott]'s in-court identification of defendant was admissible." State v. Lawson, 159 N.C. App. 534, 539, 583 S.E.2d 354, 358 (2003).
Finally, defendant argues that the show-up in this case violated the Eyewitness Identification Reform Act, N.C. Gen Stat. § 15A-284.52 (2009). This Court has established that the Eyewitness Identification Reform Act does not apply to show-ups. Rawls, ___ N.C. App. at ___, 700 S.E.2d at 118.
In sum, we hold that the trial court did not err, much less commit plain error, in denying defendant's motion to suppress Mr. Piggott's out-of-court and in-court identifications since the show-up did not create a substantial likelihood of irreparable misidentification. Defendant's argument that the show-up violated N.C. Gen Stat. § 15A-284.52 is likewise without merit.
II. Kidnapping
Defendant argues that the trial court erred in denying his motion to dismiss the kidnapping charge due to insufficient evidence. Specifically, defendant claims that "the State failed to offer sufficient evidence that the restraint or removal of [Mr.] Piggott was a separate, complete act independent and apart from the robbery of [Mr.] Piggott." We disagree.
The denial of a motion to dismiss for insufficient evidence is a question of law that is reviewed de novo. State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007).
Evidence is sufficient to sustain a conviction when, viewed in the light most favorable to the State and giving the State every reasonable inference therefrom, there is substantial evidence to support a [jury] finding, of each essential element of the offense charged, and of defendant's being the perpetrator of such offense.
Id. (internal citations and 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).
Defendant was convicted of second degree kidnapping pursuant to N.C. Gen. Stat. § 14-39 (2009). Under this statute, "a defendant commits the offense of kidnapping if he: (1) confines, restrains, or removes from one place to another; (2) a person; (3) without the person's consent; (4) for the purpose of facilitating the commission of a felony, doing serious bodily harm to the person, or terrorizing the person." State v. Mann, 355 N.C. 294, 302, 560 S.E.2d 776, 782, cert. denied, 537 U.S. 1005, 154 L. Ed. 2d 403 (2002). Our Supreme Court has held:
It is self-evident that certain felonies (e.g., forcible rape and armed robbery) cannot be committed without some restraint of the victim. We are of the opinion, and so hold, that G.S. 14-39 was not intended by the Legislature to make a restraint, which is an inherent, inevitable feature of such other felony, also kidnapping so as to permit the conviction and punishment of the defendant for both crimes. To hold otherwise would violate the constitutional prohibition against double jeopardy. Pursuant to the above mentioned principle of statutory construction, we construe the word "restrain," as used in G.S. 14-39, to connote a restraint separate and apart from that which is inherent in the commission of the other felony.
State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978). Where the kidnapping charge is based on the removal of the victim from one place to another during the felony, the trial court must consider
whether the asportation was an inherent part of the separate felony offense, that is, whether the movement was "a mere technical asportation." If the asportation is a separate act independent of the originally committed criminal act, a trial court must consider additional factors such as whether the asportation facilitated the defendant's ability to commit a felony offense, or whether the asportation exposed the victim to a greater degree of danger than that which is inherent in the concurrently committed felony offense.
State v. Ripley, 360 N.C. 333, 340, 626 S.E.2d 289, 293-94 (2006).
In the present case, an asportation occurred when the robbers ordered Mr. Piggott to different parts of his house in search of items to steal and then proceeded to move him to the storage building behind his house where he claimed his gun was stored. Our courts have held that a mere technical asportation occurs where the robbers order the victim to move from one part of the house or commercial establishment to another for the sole purpose of procuring the items they sought to steal. See State v. Irwin, 304 N.C. 93, 103, 282 S.E.2d 439, 446 (1981) (holding that defendants performed a "technical asportation" when they removed the victim from the front of a store to the back of the store at knifepoint in order for the victim to open a safe); State v. Cartwright, 177 N.C. App. 531, 537, 629 S.E.2d 318, 323 (2006) (holding that defendant committed a "mere asportation" when he moved the victim from the kitchen to the den and then to her bedroom).
However, the asportation of Mr. Piggott in this case went beyond that which was necessary for the armed robbery. After the robbers had obtained Mr. Piggott's $700, they divided it in the bedroom while Mr. Piggott waited. The armed robbery for which they were charged was thus complete. The men then asked Mr. Piggott where he kept his gun and he told them that he kept it "out back." He subsequently led them to the storage building where he was then forced to help them escape when the police arrived. This case is analogous to State v. Burrell, 165 N.C. App. 134, 140, 598 S.E.2d 246, 249 (2004), disc. review denied, 359 N.C. 323, 611 S.E.2d 421 (2005), where this Court held that the original robbery was complete when the robbers obtained the victim's vehicle, cash, ATM card, credit cards, airline cards, and travelers checks. The victim was then ordered to take the robbers to an ATM where they could obtain cash using the victim's ATM card. Id. This Court determined that, while the defendants may argue that the "'ultimate objective'" in the "'robbery enterprise'" was to obtain the victim's ATM pin number and cash, "the crimes for which defendants were indicted and convicted were complete when defendants took" the vehicle, cards, cash, and checks. Id. at 140, 598 S.E.2d at 249-50. Consequently, the restraint and asporation of the victim from the parking lot to the ATM machine was a separate act and defendant's motion to dismiss the kidnapping charge was properly denied. Id. at 140, 598 S.E.2d at 250. Similarly, the robbers in this case, defendant and Mr. Wilson, were indicted for stealing $700 from Mr. Piggott. There was substantial evidence from which the jury could determine that the original robbery was complete when the men split up the money in Mr. Piggott's bedroom and that the asportation from the house to the storage building constituted a separate act.
Moreover, this Court has consistently considered the injuries inflicted upon the victim when determining whether restraint or removal placed the victim in greater danger than that which was inherent to the armed robbery. See, e.g., State v. Beatty, 347 N.C. 555, 559, 495 S.E.2d 367, 370 (1998) (holding that the victim was exposed to a greater danger than that inherent in the robbery where the victim was bound and kicked in the back); State v. Muhammad, 146 N.C. App. 292, 295-96, 552 S.E.2d 236, 238 (2001) (holding that defendant's "actions constituted restraint beyond what was necessary for the commission of common law robbery" where defendant assaulted the victim, held him at gunpoint, and forced him to walk to the front of the store). Mr. Piggott was hit in the head twice by the robbers in order to gain his compliance and then he was led around his house at gunpoint. After the men stole and divided Mr. Piggott's $700, they continued to hold him at gunpoint, despite his obvious injuries, and demanded that he retrieve a deadly weapon for them. He was then placed in additional danger when the police arrived and he was forced to aid in their escape.
We hold that, under these facts, there was substantial evidence to establish that the kidnapping was a separate act and was not an inherent part of the armed robbery. Consequently, we hold that the trial court did not err in denying defendant's motion to dismiss the kidnapping charge.
III. Conspiracy
Next, defendant contends that the trial court erred in denying his motion to dismiss the conspiracy charge because the indictment named Mr. Piggott as the intended victim of the armed robbery, but the State failed to present substantial evidence that defendant and Mr. Wilson conspired to rob Mr. Piggott specifically. Defendant's argument is without merit.
Defendant was charged with conspiracy to commit armed robbery. An indictment that "sets forth the essential elements of a conspiracy (an agreement between two or more persons to do an unlawful act), as well as the purpose and object of the conspirators . . . sufficiently charges the offense of conspiracy." State v. Nicholson, 78 N.C. App. 398, 402, 337 S.E.2d, 654, 657 (1985). However, "a conspiracy indictment need not describe the subject crime with legal and technical accuracy because the charge is the crime of conspiracy and not a charge of committing the subject crime." Id. at 401, 337 S.E.2d at 657.
A defendant may be convicted of conspiracy where no specific victim was targeted at the time the agreement to commit the unlawful act was made. See, e.g., State v. Roberts, 176 N.C. App. 159, 167, 625 S.E.2d 846, 852 (2006) (upholding a conspiracy conviction where the indictment stated that defendant agreed with two other people to rob "someone" that evening); State v. Dalton, 122 N.C. App. 666, 673, 471 S.E.2d 657, 662 (1996) (upholding a conspiracy conviction where defendants agreed to rape "someone," before starting their search for a specific victim).
Thus, an indictment for conspiracy to commit armed robbery need not name a specific victim. Accordingly, the State in this case was not required to list Mr. Piggott as the intended victim of the robbery. The State's inclusion of Mr. Piggott's name amounted to surplusage, and, therefore, the State was not required to prove at trial that defendant agreed with Mr. Wilson to rob Mr. Piggott specifically, only that the two men conspired to commit robbery with a dangerous weapon as properly alleged. State v. Taylor, 280 N.C. 273, 276, 185 S.E.2d 677, 680 (1972) ("Allegations beyond the essential elements of the crime sought to be charged are irrelevant and may be treated as surplusage.").
In any event, the record contains substantial evidence of a conspiracy by defendant and Mr. Wilson to commit armed robbery specifically against Mr. Piggott. The two robbers obtained guns, placed bandanas across their faces, and rushed into Mr. Piggott's house clearly believing that there was money there. The men disregarded the other people playing dominoes on the porch, who then were able to escape and call the police. The two robbers found Mr. Piggott in the dining room area and asked him where the money was, and took the money from his pockets. They then asked Mr. Piggott where the rest of it was, clearly believing that there was a certain amount of money in the house. The robbers later asked Mr. Piggott where his drugs and his gun were, indicating their belief that he possessed those items. Mr. Piggott and Mr. Rivers both testified, in fact, that Mr. Wilson had robbed Mr. Piggott in a similar fashion with a different accomplice the week before. Although not required to prove the agreement to commit an unlawful act, substantial evidence was presented at trial to establish that defendant conspired to commit armed robbery specifically against Mr. Piggott. Consequently, we hold that the trial court did not err in denying defendant's motion to dismiss the conspiracy charge.
IV. Jury Charge
In an argument closely related to that discussed supra, defendant argues that the trial court committed plain error by failing to instruct the jury that the State bore the burden of proving that defendant conspired to rob Mr. Piggott specifically as alleged in the indictment.
Since defendant failed to object at trial to the jury charge, the Court reviews this argument under the plain error standard. State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997). "Under the plain error standard of review, defendant has the burden of showing: "(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial." State v. Jones, 358 N.C. 330, 346, 595 S.E.2d 124, 135 (2004).
"This Court has recognized that the preferred method of jury instruction is the use of the approved guidelines of the North Carolina Pattern Jury Instructions." Caudill v. Smith, 117 N.C. App. 64, 70, 450 S.E.2d 8, 13 (1994). Here, the trial court charged the jury in accord with the North Carolina Pattern Jury Instruction for felonious conspiracy — N.C.P.I. Crim. 202.80. The trial court correctly instructed the jury that, to convict on the conspiracy charge, it had to find that defendant and Mr. Wilson entered into an agreement, that the agreement was to commit robbery with a dangerous weapon, and that defendant and Mr. Wilson intended that the agreement be carried out at the time it was made. Based on our previous analysis, we hold that the trial court was not required to charge the jury that the agreement between defendant and Mr. Wilson was to commit armed robbery specifically against Mr. Piggott. Consequently, there was no error, much less plain error, in the jury charge.
Conclusion
In sum, we hold that the trial court did not err in denying defendant's motion to suppress or his motion to dismiss the kidnapping and conspiracy charges. We further hold that the jury instructions were without error.
No error.
Judges STROUD and Robert N. HUNTER, Jr. concur.
Report per Rule 30(e).