in the Court of Appeals 22 February 2017.
by defendant from judgments entered 2 October 2015 by Judge
James M. Webb in Hoke County Superior Court, Nos. 12 CRS
51350-52, 13 CRS 954.
Attorney General Joshua H. Stein, by Assistant Attorney
General William P. Hart, Jr., for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Amanda S. Zimmer, for defendant-appellant.
Foronte McPhaul ("defendant") appeals from
judgments entered upon jury verdicts finding him guilty of
attempted first degree murder; assault with a deadly weapon
with intent to kill inflicting serious injury
("AWDWIKISI"); robbery with a dangerous weapon;
conspiracy to commit robbery with a dangerous weapon; and
assault inflicting serious bodily injury. After careful
review, we conclude that defendant received a fair trial,
free from prejudicial error. However, because the trial court
was not authorized to enter judgments and sentence defendant
for two assaults based on the same underlying conduct, we
vacate the trial court's assault inflicting serious
bodily injury judgment in 13 CRS 954.
the evening on 3 August 2012, Domino's Pizza driver Tyler
Lloyd ("Lloyd") delivered two pizzas and a box of
chicken wings to a residence on O'Bannon Drive in
Raeford, North Carolina. When Lloyd arrived, a man waiting on
the porch of the residence told Lloyd that his cousin had
placed the delivery order and would return momentarily to pay
for the food. As Lloyd returned to his truck to wait, a
second, larger man approached him from the yard. The men
engaged in small talk beside Lloyd's truck while Lloyd
waited for payment.
five minutes passed, Lloyd said that he needed to return to
Domino's. The larger man offered to pay for the pizzas.
However, when Lloyd reached into his truck for the food, he
was hit on the head from behind and fell to the ground. When
Lloyd attempted to stand, the larger man hit him in the right
shin with a metal baseball bat, and Lloyd fell back to the
ground. As Lloyd extended his arm to protect himself from
another blow, the bat connected with his hand and struck him
hard in the face. Lloyd blacked out. When he regained
consciousness, Lloyd discovered the men, the food, and his
cell phone were gone. Since he could not call law
enforcement, Lloyd attempted to drive back to Domino's.
Shortly after he started driving, however, Lloyd began to
feel as though he might lose consciousness again, and he
Lloyd failed to return to Domino's, at 12:34 a.m. on 4
August 2012, his manager called the Hoke County Sheriff's
Department ("HCSD") to report the missing driver.
Lloyd's manager provided the O'Bannon Drive address
as the destination for his last delivery, and HCSD deputies
canvassed the area. Although they did not find Lloyd, on the
pavement, they discovered a pile of loose change; a 2011 Hoke
County High School class ring; a Domino's Pizza delivery
sticker; and a large pool of reddish-brown liquid that
appeared to be fresh blood. The deputies contacted Detective
Sergeant Donald E. Schwab, Jr. ("Detective Schwab")
to request assistance with the investigation.
around 1:30 a.m. on 4 August 2012, HCSD deputies found Lloyd
sitting in his truck, approximately one-quarter mile away
from the O'Bannon Drive residence. Lloyd was very
disoriented and was bleeding from severe lacerations to his
head and right leg. When Detective Schwab arrived, Lloyd told
him that two black males with dreadlocks, wearing black
clothing, had stolen his cell phone and pizzas and beaten him
with a metal baseball bat. Lloyd told Detective Schwab that
one of the men was "larger framed" and the other
man was "smaller framed [and] shorter." Emergency
Medical Services subsequently arrived and transported Lloyd
to the hospital, where he received emergency brain surgery
for his injuries.
a.m. on 4 August 2012, HCSD Captain John Kivett
("Captain Kivett") interviewed the Domino's
manager regarding the details of the O'Bannon Drive
delivery order. Subsequently, the manager obtained a printout
confirming that the order was placed online. Domino's
captured and provided the IP address to investigators.
approximately 4:00 a.m. on 4 August 2012, investigators
conducted a canine track from the yard at the O'Bannon
Drive residence. After tracking through a hole in the fence,
the canine followed a dirt path into the adjacent
neighborhood of Puppy Creek Mobile Home Park, where the
canine lost the track at the nearby intersection of Springer
Drive and Dalmatian Drive. That afternoon, investigators
traced the IP address provided by Domino's to a residence
on Springer Drive in the Puppy Creek Mobile Home Park.
p.m. on 4 August 2012, Captain Kivett met with a confidential
source of information ("CSI"). The CSI told Captain
Kivett that at approximately 11:30 p.m. on 3 August 2012, he
observed two men, wearing black shirts and blue jeans,
running from the intersection of Springer Drive and Dalmatian
Drive, heading toward 217 Springer Drive. The CSI described
one of the men he saw as "a tall large frame black male
[with] long dreadlocks, " and the other as "a short
slim black male with dreadlocks." In addition, one man
was holding a cell phone, and the other man was carrying what
appeared to be a large duffle bag, similar to the type used
for pizza delivery. The larger man entered 217 Springer Drive
through the front door, but the CSI lost sight of the smaller
man when he disappeared behind another residence.
approximately 9:00 p.m. on 4 August 2012, Captain Kivett
investigated the Springer Drive residence associated with the
IP address used for the Domino's order. None of the
occupants matched Lloyd's description of his assailants.
However, Captain Kivett determined that the home's
wireless connection was unsecured and accessible to any
wireless device within range.
all of this information, Detective Schwab applied for a
warrant for 217 Springer Drive, based upon probable cause
that a search of the residence would yield evidence of
Lloyd's assault. At 11:05 p.m. on 4 August 2012, HCSD
obtained a search warrant for 217 Springer Drive. In
executing the search warrant, HCSD seized two Domino's
pizza boxes; a Domino's chicken wing box; printed
Domino's delivery labels bearing the O'Bannon Drive
address; a black OtterBox cell phone cover; a large black
t-shirt; and various forms of identification establishing
defendant as a resident of 217 Springer Drive. In addition,
HCSD discovered an aluminum baseball bat underneath the
residence next door.
August 2012, HCSD arrested defendant and charged him with
attempted first degree murder, AWDWIKISI, robbery with a
dangerous weapon, and conspiracy to commit robbery with a
dangerous weapon. On 2 December 2013, a Hoke County grand
jury returned bills of indictment formally charging defendant
with these offenses, as well as assault inflicting serious
bodily injury. Prior to trial, defendant filed a motion to
suppress all evidence obtained from the search of his
residence, claiming that the warrant lacked probable cause.
Following an evidentiary hearing, the trial court denied
September 2015, a jury trial commenced in Hoke County
Criminal Superior Court. Defendant moved to dismiss all
charges at the close of the State's evidence and at the
close of all of the evidence. The trial court denied both
motions. On 2 October 2015, the jury returned verdicts
finding defendant guilty of all charges. The trial court
ordered defendant to serve the following consecutive
sentences in the custody of the North Carolina Division of
Adult Correction: 238-298 months for attempted first degree
murder; 88-118 months for AWDWIKISI; and 97-129 months for
robbery with a dangerous weapon. In addition, the trial court
imposed concurrent sentences of 38-58 months for conspiracy
to commit robbery with a dangerous weapon and 25-39 months
for assault inflicting serious bodily injury. Defendant
Denial of Defendant's Motion to Suppress
first challenges the trial court's denial of his motion
to suppress, contending that the search warrant affidavit
failed to establish the existence of probable cause. We
review of a trial court's denial of a motion to suppress
is "strictly limited to determining whether the trial
judge's underlying findings of fact are supported by
competent evidence, in which event they are conclusively
binding on appeal, and whether those factual findings in turn
support the judge's ultimate conclusions of law."
State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618,
619 (1982). We review the trial court's conclusions of
law de novo. State v. Hughes, 353 N.C. 200,
208, 539 S.E.2d 625, 631 (2000).
protection against unreasonable searches and seizures is
ingrained within our federal and state constitutions.
See U.S. Const. amend. IV (protecting
"[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures" and providing that "no
warrants shall issue but upon probable cause, supported by
oath or affirmation and particularly describing the place to
be searched and the persons or things to be seized");
N.C. Const. Art. I sec. 20 (prohibiting the issuance of
"[g]eneral warrants, whereby any officer or other person
may be commanded to search suspected places without evidence
of the act committed, or to seize any person or persons not
named, whose offense is not particularly described and
supported by evidence").
light of these provisions, courts "have expressed a
strong preference for searches conducted pursuant to a
warrant." State v. McKinney, 368 N.C. 161, 164,
775 S.E.2d 821, 824 (2015) (citations and internal quotation
marks omitted). Pursuant to N.C. Gen. Stat. § 15A-244
(2015), all search warrant applications must be made in
writing upon oath or affirmation and must contain:
(1) The name and title of the applicant; and
(2) A statement that there is probable cause to believe that
items subject to seizure under [ N.C. Gen. Stat. §]
15A-242 may be found in or upon a designated or described
place, vehicle, or person; and
(3) Allegations of fact supporting the statement. The
statements must be supported by one or more affidavits
particularly setting forth the facts and circumstances
establishing probable cause to believe that the items are in
the places or in the possession of the individuals to be
(4) A request that the court issue a search warrant directing
a search for and the seizure of the items in question.
facts set forth in the affidavit "must be such that a
reasonably discreet and prudent person would rely upon them
before they will be held to provide probable cause justifying
the issuance of a search warrant." State v.