Opinion
No. COA10-628
Filed 15 February 2011 This case not for publication
Appeal by Defendant from judgment entered 23 September 2009 by Judge Kenneth C. Titus in Wake County Superior Court. Heard in the Court of Appeals 3 November 2010.
Attorney General Roy Cooper, by Assistant Attorney General M. Elizabeth Guzman, for the State. Haral E. Carlin for Defendant.
Wake County Nos. 08 CRS 76889-90, 09 CRS 40312.
I. Procedural History
On 15 December 2008, Defendant was indicted on one count of assault with a deadly weapon with intent to kill inflicting serious injury and one count of attempted robbery with a dangerous weapon. On 30 June 2009, Defendant was indicted as an habitual felon.
The case came on for trial on 22 September 2009 in Wake County Superior Court before the Honorable Kenneth C. Titus. The jury returned verdicts finding Defendant guilty of assault with a deadly weapon inflicting serious injury and attempted common law robbery. After the jury returned its verdicts, Defendant admitted his status as an habitual felon. The trial court consolidated the convictions and sentenced Defendant as a Class C felon to 107 to 138 months in prison. This appeal followed entry of the trial court's judgment.
Defendant was also tried on the charge of possession of a firearm by a felon but was found not guilty of the offense.
II. Factual Background
At trial, the State's evidence tended to show the following: Officer T.C. Matthews of the Raleigh Police Department testified that on 27 October 2008 at approximately 3:15 a.m., he was called to the scene of a shooting. When he arrived, he was directed to the front porch of 1305 South East Street where the victim, Moses Archible, lay bleeding "pretty heavily" from a gunshot wound.
After calling Emergency Medical Services ("EMS"), Officer Matthews questioned Archible about the shooting. Archible told Officer Matthews that he knew the individual who had shot him as "Ping." He described Ping as "wearing all black with blue jeans" and as having his hair in short dreadlocks, known as "twisties."
Officer Matthews was familiar with Ping from prior encounters in the area where Archible had been shot. Officer Matthews went to his vehicle computer and ran the name "Ping" through the nickname file in a database called "KOPS," which contains information on individuals encountered by the Raleigh Police Department. Through KOPS, and a similar arrest information database called "CHIEFS," Officer Matthews obtained Defendant's name and photograph.
Officer Matthews showed Defendant's photograph to Archible, who stated, "Yes, that's him, that's Ping, I'm positive." Officer Matthews testified that Archible told him Defendant "attempted to — first he came up to him, asked him for money. He told him he didn't have any. As soon as he said he didn't, he said [Defendant] pulled out a gun, at which time he turned and tried to run. [Defendant] fired two shots, striking [Archible] in the leg."
Officer Matthews testified that he obtained an address for Defendant from Archible, but after Archible left the scene with EMS, "I spoke to my Sergeant and to my Captain, and I went and spoke to Detective Bowen at the gang unit to see if I could find an address, a better address for [Defendant]." Officer Matthews also prepared warrants for Defendant's arrest on charges of robbery and assault with a deadly weapon, based on Archible's description of the events that resulted in his gunshot wound.
Detective Daniel Karlinski of the Raleigh Police Department testified that he interviewed Archible at WakeMed Hospital a day after the shooting. Archible told Detective Karlinski that when Defendant approached him, Defendant stated, "Let me get that, let me get that money that girl gave you." Defendant was sweating and appeared to be high. Archible also noticed a gun in Defendant's waistband that looked like a revolver. When some cars drove by and distracted Defendant, Archible turned and ran. Archible told the detective that he heard at least one gunshot but kept running. After further investigation into Defendant's criminal record, Detective Karlinski took out an additional warrant on Defendant for possession of a firearm by a convicted felon.
At trial, Archible acknowledged that he did not want to testify in court because he "didn't want any more trouble from this basically[.]" He testified that prior to being shot, he had been awake for four days after using cocaine and marijuana and drinking. He was approached by Defendant and three other men. Defendant asked for money, but Archible responded that he didn't have any. Archible felt intimidated, so he turned around to run and was shot. He recalled identifying Ping in the photograph shown to him by Officer Matthews, but testified that he was unsure of who had actually fired the gun. Archible also testified that he knew Ping from the street and considered him to be a friend. The gunshot wound Archible received to his buttocks resulted in a hospital stay of three to four days.
III. Discussion A. Acting in Concert
Defendant first argues that the trial court erred by instructing the jury on the theory of acting in concert to the crimes of assault with a deadly weapon inflicting serious injury and attempted common law robbery because the State did not offer sufficient evidence that Defendant acted together with another in the pursuit of a common plan. We are wholly unpersuaded by Defendant's argument.
A trial court must instruct the jury on the law arising on the evidence. State v. James, 184 N.C. App. 149, 151, 646 S.E.2d 376, 377, disc. review denied, 361 N.C. 572, 651 S.E.2d 368 (2007); N.C. Gen. Stat. §§ 15A-1231 and -1232 (2009). "The chief purpose of a [jury] charge is to give a clear instruction which applies the law to the evidence in such manner as to assist the jury in understanding the case and in reaching a correct verdict." State v. Williams, 280 N.C. 132, 136, 184 S.E.2d 875, 877 (1971). "Whether a jury instruction correctly explains the law is a question of law, reviewable by this Court de novo." State v. Barron, ___ N.C. App. ___, ___, 690 S.E.2d 22, 29, disc. review denied, 364 N.C. 327, 700 S.E.2d 926 (2010).
"On appeal, a defendant is required not only to show that a challenged jury instruction was erroneous, but also that such error prejudiced the defendant." Id. "A defendant is prejudiced . . . when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises." N.C. Gen. Stat. § 15A-1443(a) (2009). "The burden of showing such prejudice . . . is upon the defendant." Id.
"[U]nder the principles of acting in concert[,] one who enters into a common design for a criminal purpose is deemed a party to every criminal act done by others in furtherance of such design." State v. Barts, 321 N.C. 170, 177, 362 S.E.2d 235, 239 (1987).
In order to show a community of unlawful purpose, it is not necessary to show an express agreement or understanding between the parties, nor is it necessary that it be shown by positive or direct evidence. Its existence may be inferred from all the circumstances accompanying the doing of the unlawful act, and from the conduct of defendant subsequent to the criminal act. Preconcert or a community of purpose may be shown by circumstances as well as by direct evidence.
State v. Murphy, 49 N.C. App. 443, 445, 271 S.E.2d 573, 574 (1980).
In this case, Archible testified as follows: "[Defendant] asked me for some money, and I said I didn't have none, and it was like three other guys standing there, and [] I felt intimidated, so I took off and ran. When I ran, I got shot." Archible further testified that "the reason [Defendant's] name came to me is because we was the one that had the altercation, but it was some more guys out there with him, you understand me, and I feel like they was all together."
Archible's testimony shows that he knew Defendant and identified him as one of the four men who approached him. Defendant was not merely present but actively participated in the attempted robbery by approaching Archible and asking him for money. While Archible testified that he did not know which of the four shot him, "[t]his does not defeat the [S]tate's case. All four men were there, acting together in concert with a common plan and purpose to rob their victim." Id. Under these circumstances, it is not essential to the State's case that it prove who fired the gunshot. "All participants are equally guilty in the eyes of the law." Id.
Accordingly, Archible's testimony was sufficient evidence to show that Defendant was present and actively engaged with the three other individuals in the attempted robbery and assault with a deadly weapon inflicting serious injury of Archible. Thus, the trial court did not err in instructing the jury on the theory of acting in concert for those two offenses. Defendant's argument is overruled.
B. Motion to Dismiss
Defendant next argues that the trial court erred in denying his motion to dismiss the charges of assault with a deadly weapon with intent to kill inflicting serious injury and common law robbery as there was insufficient evidence that Defendant was the perpetrator of the offenses. We soundly disagree.
When ruling on a motion to dismiss for insufficient evidence, it is well-established that the trial court must consider the evidence in the light most favorable to the State, drawing all reasonable inferences in the State's favor. State v. McCullers, 341 N.C. 19, 28-29, 460 S.E.2d 163, 168 (1995). Any contradictions or conflicts in the evidence are resolved in favor of the State and evidence unfavorable to the State is not considered. State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). The trial court must decide "only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Turnage, 362 N.C. 491, 493, 666 S.E.2d 753, 755 (2008) (citation and quotation marks omitted). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Id. (citation and quotation marks omitted). When the evidence raises no more than a suspicion of guilt, a motion to dismiss should be granted. State v. Lee, 348 N.C. 474, 488-89, 501 S.E.2d 334, 343 (1998). However, so long as the evidence supports a reasonable inference of the defendant's guilt, a motion to dismiss is properly denied even though the evidence also "permits a reasonable inference of the defendant's innocence." State v. Butler, 356 N.C. 141, 145, 567 S.E.2d 137, 140 (2002).
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. See N.C. Gen. Stat. § 14-32(a) (2003); 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). "Common law robbery is `the felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear.'" State v. Harris, 360 N.C. 145, 154, 622 S.E.2d 615, 620 (2005) (quoting State v. Stewart, 255 N.C. 571, 572, 122 S.E.2d 355, 356 (1961)). "The elements of an attempt to commit a crime are (1) an intent to commit the crime, (2) an overt act done for that purpose, going beyond mere preparation, (3) but falling short of the completed offense." State v. Collins, 334 N.C. 54, 60, 431 S.E.2d 188, 192 (1993).
Officer Matthews testified, without objection, to the following: He was the first officer on the scene. He asked Archible if he knew who shot him. Archible said he did and gave Officer Matthews Defendant's street name "Ping." Archible described Ping as wearing all black with blue jeans and "`twisties'" in his hair. Officer Matthews ran the name "Ping" through the KOPS system maintained by the police department and Defendant's name was returned. Officer Mathews then retrieved Defendant's photograph from the department's CHIEFS system and showed the photograph to Archible. Archible told Officer Matthews that the individual in the photograph was Ping.
Officer Matthews also testified on cross-examination, without objection, to the following statement Archible gave him: "Ping shot me, man. He was tripping. So I know him from the street. He was wearing all black, blue jeans, and he has twists in his hair. Yes, that's him, Ping, I'm positive."
Archible testified that Defendant "asked me for some money, and I said I didn't have none, and it was like three other guys standing there, and [] I felt intimidated, so I took off and ran. When I ran, I got shot."
This evidence is clearly sufficient to allow a jury to reasonably infer that Defendant, either individually or acting in concert with the three other men, was the perpetrator of the attempted robbery and assault.
Defendant nonetheless argues that Officer Karlinski's testimony that Archible informed him he had seen Defendant with a revolver in his waistband was inconsistent with Archible's testimony at trial that he did not know who shot him. Defendant thus argues that Karlinski's testimony was inadmissible. We note first that Defendant did not object to Officer Karlinski's testimony at trial and Defendant does not argue plain error on appeal. N.C. R. App. P. 10(b)(2). Defendant's argument is therefore not preserved for our review. N.C. R. App. P. 10(c)(4). Even so, assuming arguendo that Officer Karlinski's testimony was inadmissible, Officer Matthew's and Archible's testimony was sufficient evidence from which the jury could infer that Defendant was the perpetrator of the offenses. Accordingly, the trial court did not err in denying Defendant's motion to dismiss the charges of assault with a deadly weapon with intent to kill inflicting serious injury and common law robbery. Defendant's argument is overruled.
C. Admission of Evidence
Next, Defendant argues that the trial court erred by allowing Officer Matthews to testify that he retrieved an "arrest photo" of Defendant from the CHIEFS system, by allowing the photograph to be introduced into evidence, and by allowing Officer Matthews to testify that he contacted Detective Bowen at the "gang unit" in an attempt to find a better address for Defendant.
When a defendant timely objects at trial to the admission of certain evidence, the admissibility of the challenged evidence is a question of law and is reviewed de novo. State v. McLean, ___ N.C. App. ___, ___, 695 S.E.2d 813, 815 (2010). The defendant bears the burden of proving that the evidence was erroneously admitted and that he was prejudiced by the erroneous admission. N.C. Gen. Stat. § 15A-1443(a). "The admission of evidence which is technically inadmissible will be treated as harmless unless prejudice is shown such that a different result likely would have ensued had the evidence been excluded." State v. Gappins, 320 N.C. 64, 68, 357 S.E.2d 654, 657 (1987).
When a defendant fails to object at trial to the improper admission of evidence, however, the reviewing court determines if the erroneously admitted evidence constitutes plain error. State v. Locklear, 172 N.C. App. 249, 259, 616 S.E.2d 334, 341 (2005). Plain error is a "` fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]'" State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) ( quoting United States v. McCaskill, 676 F.2d 995, 1002, cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). In determining whether the error rises to plain error, the appellate court examines the entire record and decides whether the "error had a probable impact on the jury's finding of guilt." Id. at 661, 300 S.E.2d at 379.
In this case, Defendant timely objected to the characterization of the photograph as an "arrest photo" and to its admission into evidence, but failed to object to Officer Matthews' reference to the "gang unit." However, even assuming arguendo that the evidence was erroneously admitted, Defendant has failed to demonstrate that he was prejudiced by its admission.
We note that Defendant states in his brief to this Court that he failed to object at trial to any of the challenged evidence and, thus, argues only plain error on appeal.
In addition to the charges of attempted robbery and assault, Defendant was charged with possession of a firearm by a convicted felon. Thus, the implication from the photograph that Defendant had been previously arrested was harmless as the jury was aware there would be evidence that Defendant had been previously convicted of a felony and the State, in fact, introduced a certified copy of a previous felony judgment resulting from Defendant's guilty pleas to charges of possession with intent to sell and deliver cocaine and delivery of cocaine.
Moreover, in light of the overwhelming evidence of Defendant's guilt — including Archible's eyewitness testimony that Defendant approached him and asked him for money and that, after denying Defendant's request, Archible ran and was immediately shot in the leg — we cannot conclude that a reasonable possibility exists the jury would have reached a different verdict had Officer Matthews' testimony that he spoke to Detective Bowen at the "gang unit" been excluded. See State v. Gayton, 185 N.C. App. 122, 125-27, 648 S.E.2d 275, 278-79 (2007) (holding that admission of evidence of gang activity was harmless error); State v. Freeman, 313 N.C. 539, 548, 330 S.E.2d 465, 473 (1985) (holding that although evidence of defendant's gang membership was properly admitted to explain his presence at murder scene, evidence that gang was a "`motorcycle gang'" was erroneously admitted because it was "irrelevant to the issue of defendant's guilt[,]" but concluding that because of "overwhelming evidence of defendant's guilt[,]" error could not have influenced outcome of trial). Accordingly, Defendant's argument is without merit and is overruled.
V. Habitual Felon Status
Finally, Defendant argues that the trial court erred by accepting his guilty plea to the status of habitual felon because the trial court lacked subject matter jurisdiction. Specifically, Defendant argues that the habitual felon indictment was insufficient to confer jurisdiction on the court because two of the three felony convictions listed in the indictment occurred before Defendant's 18th birthday. We agree.
Pursuant to N.C. Gen. Stat. § 14-7.1,
[a]ny person who has been convicted of or pled guilty to three felony offenses in any federal court or state court in the United States or combination thereof is declared to be an habitual felon. . . . For the purposes of this Article, felonies committed before a person attains the age of 18 years shall not constitute more than one felony.
N.C. Gen. Stat. § 14-7.1 (2009) (emphasis added). Moreover, N.C. Gen. Stat. § 14-7.3, provides, in pertinent part, that
[a]n indictment which charges a person with being an habitual felon must set forth the date that prior felony offenses were committed, the name of the state or other sovereign against whom said felony offenses were committed, the dates that pleas of guilty were entered to or convictions returned in said felony offenses, and the identity of the court wherein said pleas or convictions took place.
N.C. Gen. Stat. § 14-7.3 (2009). Thus, for an indictment charging a person with being an habitual felon to be valid, the indictment must set forth at least three prior felony offenses, at least two of which must have been committed after the defendant reached the age of 18.
This Court has recognized time and again that while parties may stipulate to a matter of fact, parties may not stipulate as to what the law is. See e.g., State v. Moncree, 188 N.C. App. 221, 234, 655 S.E.2d 464, 472 (2008) ("Generally parties . . . may not stipulate as to what the law is." (citation and quotation marks omitted)); Baxley v. Nationwide Mut. Ins. Co., 104 N.C. App. 419, 422, 410 S.E.2d 12, 14 (1991) ("Generally, parties may stipulate as to matters which involve individual rights and obligations of the parties but may not stipulate as to what the law is."), aff'd, 334 N.C. 1, 430 S.E.2d 895 (1993); State v. Prevette, 39 N.C. App. 470, 472, 250 S.E.2d 682, 683 ("Stipulations as to questions of law are generally held invalid and ineffective, and not binding upon the courts, either trial or appellate."), cert. denied and appeal dismissed, 297 N.C. 179, 254 S.E.2d 38 (1979). "This rule is more important in criminal cases, where the interests of the public are involved. The due administration of the criminal law cannot be left to the stipulations of the parties." Prevette, 39 N.C. App. at 472, 250 S.E.2d at 683.
Moreover, appellate courts have determined that even where a party "stipulates" to a matter of law, that stipulation is not binding. See State v. Palmateer, 179 N.C. App. 579, 581, 634 S.E.2d 592, 593 (2006) (the question of whether a conviction under an out-of-state statute is substantially similar to an offense under North Carolina statutes is a question of law so the parties' stipulation that the information on the prior record level worksheet was accurate, "`including the classification and points assigned to any out-of-state convictions[,]'" was ineffective); Moncree, 188 N.C. App. at 234, 655 S.E.2d at 472 (the defendant's stipulation to three predicate felony convictions set out in an habitual felon indictment was ineffective as a matter of law because one of the convictions was not a felony).
In this case, Defendant was born on 4 May 1985. The indictment charging Defendant as an habitual felon sets forth three prior felony convictions for offenses committed on the following dates: 18 June 2002, 26 November 2002, and 30 November 2004. Thus, two of the felonies were committed by Defendant prior to his 18th birthday and only one of the prior felonies was committed by Defendant after he turned 18 years old. Accordingly, under N.C. Gen. Stat. §§ 14-7.1 and -7.3, the indictment was insufficient to charge Defendant as an habitual felon. Although Defendant's attorney allowed him to "stipulate" to his prior offenses and "admit" his status as an habitual felon, Defendant could not, as a matter of law, stipulate to the sufficiency of the indictment. As the indictment was insufficient to charge Defendant as an habitual felon, the trial court did not have subject matter jurisdiction. Defendant's conviction is thus vacated, and the matter is remanded for resentencing.
AFFIRMED in part; VACATED in part; and REMANDED for resentencing.
Judges STEELMAN and HUNTER, JR. concur.
Report per Rule 30(e).