in the Court of Appeals 22 May 2019.
by defendant from judgment entered 18 September 2017 by Judge
James K. Roberson in Durham County No. 16 CRS 2673-74
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.
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
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.
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.
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.
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.
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."
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.
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.
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.
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.
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).
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).
instant case, defendant challenges his convictions for
identity theft and conspiracy to commit robbery with a
dangerous weapon. We address each claim in order.
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. 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.").
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
to Commit Robbery with a Dangerous Weapon
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).
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).
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