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State v. Stimpson

Court of Appeals of North Carolina

November 7, 2017


          Heard in the Court of Appeals 23 August 2017.

         Appeal by defendant from judgments entered 28 April 2016 by Judge Susan E. Bray in Guilford County Superior Court Nos. 14 CRS 71535-36, 71540-42, 71544, 71555-57, 71559-64.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General David P. Brenskelle, for the State.

          The Epstein Law Firm PLLC, by Drew Nelson, for defendant-appellant.

          TYSON, JUDGE.

         Antonio Lamar Stimpson ("Defendant") appeals from judgments entered after a jury convicted him of discharging a firearm into an occupied property, discharging a firearm into an occupied vehicle, five counts of conspiracy to commit robbery with a firearm, six counts of robbery with a firearm, and two counts of attempted robbery with a firearm. Defendant has abandoned his appeal on all convictions and judgments, except for four of the five conspiracy convictions. We find no error in any of Defendant's convictions and judgments.

         I. Factual Background

         A. The Crimes

         1. Smith

         In the early morning hours of 22 March 2014, Debra Smith left a hair salon on Summit Avenue in Greensboro and entered her vehicle. A dark colored Jeep Cherokee vehicle swiftly pulled up and blocked her from leaving. Ms. Smith testified she saw two men exit the Jeep, with one man carrying a pump shotgun. The men wore masks and dark clothing. Ms. Smith was ordered to exit her vehicle and instructed to "give us your money."

         Ms. Smith testified she was "scared for her life" when a gunshot was fired near her head. She fell onto the pavement as she exited from her vehicle. Ms. Smith told the men she did not have any money. One of the men with a shotgun began to taunt her. The other man stated, "Come on, man, take the vehicle" and the men got into Ms. Smith's car and drove it away.

         2. Eban and Nie

         On the same morning at about 5:45 a.m., Kler Eban was watching from the front door of his home on Sunrise Valley Road in Greensboro, as his wife walked to her car to leave for work. He saw three men walk past his house. Mr. Eban testified the men returned and two went behind his wife's car and one came toward the door of his house and shouted at him to open the door. Mr. Eban testified the men's faces were covered. One of the men pointed a gun wrapped in cloth at Mr. Eban.

         Mr. Eban heard a gunshot and attempted to get out of the door to assist his wife. Mr. Eban's wife, Lieu Nie, testified a red Jeep was parked behind her car. The men had shot at her through the driver's side window while she was sitting in the driver's seat.

         Two shots were also fired in Mr. Eban's direction. Ms. Nie crawled over the front seat and escaped through the rear door. The robbers entered Ms. Nie's car and stole a shopping bag of new cooking utensils. Mr. Eban testified one of the men got into the Jeep and two of them got into his wife's car and drove it away.

         3. Nareau

         Around 6:30 a.m., John Nareau drove his car into a parking space at his workplace on Norwalk Street in Greensboro. As he exited his vehicle, a male got in front of him and raised what appeared to be a sawed-off shot gun. Mr. Nareau was told "don't try anything. There's two in the back." Mr. Nareau testified the man wore a mask and demanded his wallet and cellphone. After handing over his wallet and phone, Mr. Nareau ran away and watched the men get into a dark colored Jeep and drive away.

         4. Tomlin, White, Wilkerson, and Mork

         At a little before 7:00 a.m. on the same date, four friends, Elizabeth Tomlin, Brinson White, Clair Wilkerson and Wesley Mork, were loading luggage in the trunk of their rental car, when three men yelled at them "to turn around, mother f-ker;" and "get down mother f-ker." Ms. Tomlin saw the men exit from a red Jeep parked 30-40 feet away. The men wore masks and dark clothing and carried guns. One of the guns appeared to be a sawed-off shotgun. The two women were chased by one man, while Mr. Carter and Mr. Mork were detained on the ground by the other two men from the Jeep. Mr. Mork's wallet and cash were stolen and cash was stolen from Mr. Carter.

         During the pursuit, Ms. Tomlin's and Ms. Wilkerson's bags were taken. One of the attackers yelled "get in the car and take the car." The keys to the rental car were not in the vehicle, so all three men ran back to the Jeep and left.

         5. Holland

         Nicholas Holland was the final victim of the related crimes that occurred that morning. As Mr. Holland left his residence on Tremont Street in Greensboro, he noticed two males walk past the house. Mr. Holland observed a Jeep vehicle quickly pull up in front of his house. A masked male with a handgun demanded, "Give me what you have." Mr. Holland offered his brief case and car keys and attempted to run away. One of the men chased him until the same Jeep pulled up and the man climbed inside. The Jeep sped away.

         B. Investigations

         In response to the robberies, Greensboro Police Detective Devin Allis received a dispatch with a description of the dark colored Jeep Cherokee being involved. Detective Allis pursued the Jeep and apprehended the driver, Aaron Spivey, after a chase. Mr. Spivey was arrested with Mr. Mork's wallet in his possession.

         After Spivey's arrest, officers located Defendant and LeMarcus McKinnon walking in a nearby area. Defendant and McKinnon ran as the officers approached and had identified themselves. Defendant was apprehended by Lieutenant Larry Patterson. When arrested, Defendant was wearing a dark colored T-shirt, dark blue jeans and grey sneakers. He had cash, Mr. Nareau's cellphone and the keys to Ms. Nie's car in his possession.

         When interviewed by police, Defendant initially denied any involvement in the robberies. Eventually Defendant admitted he had been present in the dark Jeep Cherokee with Spivey and McKinnon. Defendant stated he and McKinnon were cousins and were "tight." Defendant acknowledged he had met Spivey the previous week. Defendant also told police he had handled one of the guns a few days before the robberies.

         Defendant told police officers he had been a passenger in the Jeep and witnessed the robberies perpetrated by the others. Defendant admitted driving the Jeep from the scene of the robbery of Ms. Nie and to later meeting Spivey and McKinnon for the subsequent robberies.

         Officers recovered three pair of gloves, a blue toboggan, a black and grey bandana and a black headband or neckwarmer from inside the passenger area of the Jeep Cherokee. The handbags and briefcase belonging to the various victims were also recovered from inside the Jeep.

         II. Jurisdiction

         Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b) (2015) and N.C. Gen. Stat. § 15A-1444(a) (2015).

         III. Issue

         Defendant asserts the trial court erred by failing to dismiss four of the conspiracy charges and argues the State's evidence supported only a single charge.

         IV. Standard of Review

         "We review the trial court's denial of a motion to dismiss de novo." State v. Sanders, 208 N.C.App. 142, 144, 701 S.E.2d 380, 382 (2010). Under a de novo standard of review, this Court "considers the matter anew and freely substitutes its own judgment for that of the trial court." Id.

         In ruling on a motion to dismiss for insufficiency of the evidence,

the trial court must consider the evidence in the light most favorable to the State, drawing all reasonable inferences in the State's favor. All evidence, competent or incompetent, must be considered. Any contradictions or conflicts in the evidence are resolved in favor of the State, and evidence unfavorable to the State is not considered. . . . [S]o 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. The test for sufficiency of the evidence is the same whether the evidence is direct, circumstantial or both.

State v. Bradshaw, 366 N.C. 90, 92-93, 728 S.E.2d 345, 347 (2012) (emphasis supplied) (internal citations and quotation marks omitted).

         V. Analysis

         A. State's evidence

         "A criminal conspiracy is an agreement between two or more persons to do an unlawful act . . . ." State v. Massey, 76 N.C.App. 660, 661, 334 S.E.2d 71, 72 (1985). The agreement to commit the unlawful act may be established by circumstantial evidence. State ...

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