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State v. Miles

Court of Appeals of North Carolina

August 20, 2019

STATE OF NORTH CAROLINA
v.
WILLIAM ALLAN MILES

          Heard in the Court of Appeals 22 May 2019.

          Appeal by defendant from judgment entered 18 September 2017 by Judge James K. Roberson in Durham County No. 16 CRS 2673-74 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General Lewis W. Lamar, Jr., for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Sterling Rozear, for defendant-appellant.

          Bryant, Judge.

         Where the evidence, when taken in the light most favorable to the State, was substantial to show defendant committed the charged offenses, the trial court did not err in denying defendant's motion to dismiss for identity theft and conspiracy to commit robbery with a dangerous weapon. Where the testimony of a law enforcement officer was proper, the trial court did not err in admitting the testimony. Where the trial court properly informed the jury on the identity theft charge, the trial court did not err in giving the jury instruction.

         On 6 September 2016, defendant William Allan Miles was indicted for attempted robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, assault with a deadly weapon with intent to kill, and identity theft. The matter was tried on 11 September 2017 before the Honorable James K. Roberson, Judge presiding.

         The State's evidence tended to show that at approximately 4:00 a.m. on 29 July 2016, Jacob Badders was asleep in his home on Cole Mill Road when he noticed lights shining into his window and heard a car horn "honking" in his driveway. Badders went outside and encountered a woman who asked to use his phone saying that she had gotten into a fight with her father. Badders told her to leave, and he went inside to call the police. As he started looking for his cellphone, Badders's girlfriend told him they had left their phones in his car. Badders went outside to retrieve their phones, taking his gun with him. When he reached his car, a male approached him with a gun and said, "Don't f**kin' move." The two men exchanged gunfire, and the assailant ran away. Badders called the police who arrived at the scene minutes later.

         Officer Lauren McFaul-Brow and Officer J.E. Harris, of the Durham County Police Department, arrived at Badders's house and interviewed Badders and his neighbor John Lobaldo. Badders informed Officer McFaul-Brow that he used "snake shot" as ammunition, which would leave a distinctive wound on his assailant. Later during her investigation, Officer McFaul-Brow received information that someone had come into Duke Regional Hospital--approximately 10 minutes from Badders's house--with a distinctive wound matching the description of the snake shot described by Badders.

         Officer Harris interviewed Lobaldo, who had surveillance cameras around his house, and reviewed the surveillance footage. Lobaldo stated that he noticed two cars enter a church parking lot near the intersection of Cole Mill Road. He saw three men get out of one of the cars and run across Cole Mill Road to the back of Badders's house. One of the cars, driven by a white female, left the church parking lot and drove to Badders's house. The car parked in Badders's driveway and "honked" the horn three times until Badders came outside. Lobaldo heard the shooting and saw the assailant, along with two other men, get into one of the cars as they fled from Badders's house. The assailant seen leaving Badders's house was wearing a white t-shirt, jeans, tennis shoes, and a white toboggan or bandana on his head. Lobaldo stated he could tell the assailant was hurt by the way he was running.

         The assailant--later identified as defendant--arrived at the hospital for treatment of his gunshot wounds. When defendant was asked for his name, he responded with a name, date of birth, and address other than his own. He gave the name "Jerel Antonio Thompson" and, as a result, he was provided a hospital tag with that name and corresponding date of birth. Defendant's clothing--a white t-shirt and jeans--was taken into evidence. Defendant later revealed his correct name and other identifying information and told an investigating officer that he started using the identity of Jerel Thompson because "it kind of matched him."

         At trial, defendant moved to dismiss charges of attempted robbery with a dangerous weapon, felony conspiracy (to commit robbery with a dangerous weapon), assault with a deadly weapon with intent to kill, and identity theft. The trial court denied defendant's motions to dismiss.

         Defendant was found guilty by jury of conspiracy to commit robbery with a dangerous weapon and identity theft. After the trial court declared a mistrial on the remaining charges, the State dismissed those charges. Defendant was sentenced to 29 to 47 months of imprisonment for conspiracy to commit robbery with a dangerous weapon and a consecutive sentence of 12 to 24 months for identity theft. Defendant appealed.

         On appeal, defendant argues the trial court erred by: I) failing to dismiss the charges of conspiracy to commit robbery with a dangerous weapon and identity theft, II) permitting improper opinion testimony from a lay witness, and III) instructing the jury on identity theft.

         I

         Defendant argues that the trial court erred by denying his motion to dismiss because the State did not present substantial evidence to support the charges against him--identity theft and conspiracy to commit robbery with a dangerous weapon. Specifically, defendant argues the State neither proved that he agreed to commit robbery or that he used identifying information of another person. We disagree.

         The standard of review for this Court to review the trial court's denial of a motion to dismiss is de novo. State v. Woodard, 210 N.C.App. 725, 730, 709 S.E.2d 430, 434 (2011). "Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal." State v. Williams, 362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008) (quotation marks omitted).

         "Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied." State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 355 (1987) (citation and quotation marks omitted). "[T]he trial court should only be concerned that the evidence is sufficient to get the case to the jury," as opposed to examining the weight of the evidence. State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652 (1982). "In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor." State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994).

         In the instant case, defendant challenges his convictions for identity theft and conspiracy to commit robbery with a dangerous weapon. We address each claim in order.

         Identity Theft

         Defendant argues the State did not present evidence of "identifying information" because he only provided another person's name, date of birth, and address. Defendant concedes that he did not preserve this issue for appellate review due to his failure to raise the issue before the trial court.[1] See N.C. R. App. P. 10(a)(1) (2019) ("In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling. . . [i]t is also necessary for the complaining party to obtain a ruling [from the trial court] upon the party's request, objection, or motion.").

         Acknowledging his failure to preserve this issue, defendant asks this Court to invoke Rule 2 of the North Carolina Rules of Appellate Procedure to consider the merits of his argument. See N.C. R. App. P. 2 (2019) (Rule 2 provides, in pertinent part, that "[t]o prevent manifest injustice to a party, . . . either court of the appellate division may . . . suspend or vary the requirements or provisions of any of these rules in a case pending before it[.]"). However, this Court will invoke Rule 2 only in exceptional circumstances or to prevent manifest injustice, and defendant has not demonstrated such an exceptional circumstance exists to warrant invocation of the rule. Thus, we decline to exercise our discretion to invoke Rule 2 to address defendant's argument regarding the identity theft charge.[2]

         Conspiracy to Commit Robbery with a Dangerous Weapon

         Defendant contends the State did not present substantial evidence to withstand a motion to dismiss for conspiracy to commit robbery with a dangerous weapon. We disagree.

The State's successful assertion of a charge of criminal conspiracy requires proof of an agreement between two or more people to do an unlawful act or to do a lawful act in an unlawful manner. The State need not prove an express agreement. Evidence tending to establish a mutual, implied understanding will suffice to withstand a defendant's motion to dismiss.

State v. Boyd, 209 N.C.App. 418, 427, 705 S.E.2d 774, 781 (2011) (citation and quotation marks omitted).

         "The proof of a conspiracy may be, and generally is, established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy." State v. Lawrence, 352 N.C. 1, 25, 530 S.E.2d 807, 822 (2000) (citation and quotation marks omitted). Moreover, "[i]n order for a defendant to be found guilty of the substantive crime of conspiracy, the State must prove there was an agreement to perform every element of the underlying offense." State v. Dubose, 208 N.C.App. 406, 409, 702 S.E.2d 330, 333 (2010).

         Here, the evidence presented showed defendant was one of at least four people who occupied two cars that were present at the scene of the crime. Two cars drove into a parking lot of a church located in the victim's neighborhood in the early morning. One car with three male occupants parked at the church parking lot. The other car had a female occupant who then drove into Badders's driveway and initiated contact with Badders by honking her car horn. Badders instructed the female to leave his property, and soon thereafter, Badders was approached by a man--later identified as defendant--with a loaded weapon. After the two men exchanged gunfire, three men including defendant were seen running away from Badders's house. Badders's assailant was seen getting back into the car at the parking lot. When viewing all the evidence in the light most favorable to the State, a logical inference ...


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