Heard in the Court of Appeals September 26, 2013.
[Copyrighted Material Omitted]
Swain County. Nos. 08 CRS 935-40.
Roy Cooper, Attorney General, by Mary Carla Hollis, Assistant Attorney General, for the State.
Staples Hughes, Appellate Defender, by Daniel R. Pollitt and Paul M. Green, Assistant Appellate Defenders, for defendant-appellant.
DAVIS, Judge. Judges HUNTER, JR. and ERVIN concur.
Appeal by defendant from judgments entered 19 March 2012 by Judge Marvin Pope in Swain County Superior Court. Heard in the Court of Appeals 26 September 2013.
Tiffany Leigh Marion (" Defendant" ) appeals from her convictions for two counts of first-degree murder, one count of attempted murder, two counts of robbery with a dangerous weapon, and one count of first-degree burglary. Defendant's primary argument on appeal is tat there was insufficient evidence presented at trial to support her convictions under either an acting in concert theory or an aiding and abetting theory. After careful review, we vacate in part and remand in part as set out below.
The State's evidence tended to establish the following facts: On 5 August 2008, Defendant traveled from Atlanta, Georgia to Cherokee, North Carolina to visit Harrah's casino. Defendant was accompanied by Jada McCutcheon (" McCutcheon" ) -- a friend from the massage therapy school Defendant attended -- and three men, Jeffrey Miles (" Miles" ), Jason Johnson (" Johnson" ), and a man known as " Freak." The group used ecstasy and smoked marijuana during the car trip and during their entire stay in North Carolina. Some of the ecstasy they used during their trip was mixed with other controlled substances, including heroin and cocaine. Once they arrived, part of the group gambled for several hours at the casino. Afterwards, Miles checked into a hotel room and listed Defendant as his guest. The group congregated in Miles' room over the next several days to " chill" and use drugs.
On 7 August 2008, Miles, Johnson, and " Freak" went to the local Wal-Mart, where they met two local residents, Mark Goolsby (" Goolsby" ) and Dean Mangold (" Mangold" ). Miles asked Goolsby and Mangold if they wanted to take ecstasy and go to the casino with them, and the two replied affirmatively. Miles eventually brought them back to his hotel room and showed them an AR-15 firearm that he was interested in selling. Mangold suggested trying to sell the gun to a man named Scott Wiggins (" Wiggins" ) and offered to take them up to see Wiggins. Mangold also told Miles that Wiggins " had drugs." During this conversation, Defendant was lying on the bed and seemed " messed up."
Goolsby, Mangold, Miles, Johnson, McCutcheon, and Defendant got into their van and drove to Wiggins' home. During the drive, Mangold told Miles that Wiggins owed him money and that Wiggins had " all this stuff" and " a lot of money." Miles was driving the van and parked it on a gravel logging road where it could not be seen from Wiggins' house. Everyone exited the vehicle, and Miles told everyone that they were " fixin' to hit a lick," meaning that they were about to rob someone. Defendant stayed by the van and told McCutcheon that she " didn't want to go up there."
Johnson kicked in the door of the residence and proceeded to hold Wiggins and another person present in Wiggins' home, Michael Heath Compton (" Compton" ), at gunpoint while the others began gathering valuables. While the group was searching for valuables, another person, Timothy Dale Waldroup (" Waldroup" ), drove up to the house and was escorted into the residence at gunpoint. Miles shot Wiggins, Compton, and Waldroup during the course of the burglary, and only Waldroup survived. Goolsby and Mangold heard the gunshots, " got scared," and left the scene. Defendant then left the area by the van where she had been waiting, walked towards the house, found Johnson, and informed him that Goolsby and Mangold had left. She then returned to the van.
Johnson, Miles and McCutcheon proceeded to load the stolen items into Wiggins' pickup truck. Defendant attempted to drive the van but was unable to release the parking brake so McCutcheon drove the vehicle. Defendant and the others traveled back to Georgia and moved the stolen items into Miles' apartment.
On 18 August 2008, the Swain County grand jury returned bills of indictment charging Defendant with two counts of first-degree murder, one count of attempted murder, one count of first-degree burglary, two counts of robbery with a dangerous weapon, and three counts of first-degree kidnapping. The matter came on for a jury trial during the February and March 2012 Criminal Sessions of Swain County Superior Court.
Defendant offered evidence at trial and testified in her defense. She testified that she was using drugs during the entire trip and did not learn what had happened at Wiggins' house until she returned to Georgia on 11 August 2008. She further stated that she never heard or was a part of any conversations regarding a plan to rob Wiggins and explained that she " had no idea what was going on" when the group went to Wiggins' house, " had nothing to do with it," and " would never, ever be a part of anything like this."
The jury found Defendant guilty of two counts of first-degree murder, one count of attempted murder, one count of first-degree burglary, and two counts of robbery with a dangerous weapon. Defendant was found not guilty of the three kidnapping charges. The trial court entered judgments based on the jury's verdicts, sentencing Defendant to two consecutive terms of life imprisonment without parole for the first-degree murder charges, a presumptive-range term of 125 to 159 months for the attempted murder conviction, and ...