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STATE v. JOHNSON

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.


NO. COA04-282

NORTH CAROLINA COURT OF APPEALS

Filed: 07 December 2004

STATE OF NORTH CAROLINA

v
.
Mecklenburg County


No. 02 CRS 244566-71
EDWIN JOHNSON

Appeal by defendant from judgment entered 13 July 2003 by
Judge Robert P. Johnston in Mecklenburg County Superior Court.
Heard in the Court of Appeals 20 October 2004.

Attorney General Roy Cooper, by Special Deputy Attorney
General Thomas R. Miller, for the State.

William D. Auman, for the defendant-appellant.

STEELMAN, Judge.

In the early morning of 22 June 2002, defendant, Shelton Sapp
(Sapp), Patrick Beckham (Beckham), and a third man were walking
down Alpha Street in Charlotte when they saw two men, Jason Mullis
(Mullis) and George Cole (Cole)(strangers to defendant and his
companions), sitting on the front stoop of a small house. Beckham
spoke with the two men while his three companions stood by.
Defendant and his companions then went on their way, and Cole and
Mullis went back inside. Defendant testified that Beckham told
Sapp that the Cole and Mullis had drugs inside the house, and that
Sapp decided to rob them. Sapp had produced a pistol, and Beckham
was holding a shotgun. Defendant further testified that Sapp
entered the house through the front door, which was cracked open,and then defendant heard what he believed at the time to be three
shots. In fact, Sapp had shot Mullis three times, and he had shot
Cole once. According to defendant, upon hearing the shots he ran
to the house. Mullis and Cole both lay on the floor, where they
were stepped on by the assailants as they ransacked the house in
search of money. Both Mullis and Cole testified that they believed
there were four men who participated in the robbery (Mullis
testified that he heard four distinct voices as he lay on the
floor, Cole testified that he saw four men enter the house one
after the other). Defendant maintains that there were only three
men there, Sapp, Beckham and himself. Defendant claims he never
entered the house, but merely stood in the open doorway.
Robin Jenkins (Jenkins) was asleep in a back room when the
incident began. He was awoken by Sapp kicking his leg, then he was
hit in the face by Sapp with a pistol. Jenkins testified that
three separate men entered his room that night, each of whom
demanded money, and he believes he heard four distinct strange
voices in the house. Hundreds of dollars in cash was taken by the
assailants as they ransacked the house and checked the pockets of
Mullis and Cole. A bag of marijuana was also taken. Sapp found
keys to Cole’s new pickup truck and threw them to defendant, asking
him to bring the truck around. Defendant complied and the men
fled. Defendant testified that he ran away from the house after he
brought the truck around, and that Sapp and Beckham drove off in
the truck. Defendant further testified that he saw Sapp and
Beckham later that morning, and that they all smoked some of themarijuana taken from the house. Sapp testified, and claimed that
defendant and Beckham were not there at the robbery that night,
that he and someone known as Jay Black were the only two present.
Beckham refused to testify, citing his Fifth Amendment privilege
against self-incrimination. No fourth man was ever charged with
any crime resulting from the events of that morning. Defendant
subsequently discovered that there was a warrant out for his
arrest, and he spoke with police on two occasions by phone, but
would not turn himself in. He was finally apprehended attempting
to flee out the back door of his family’s house.
Defendant was convicted 13 June 2003 of two counts of assault
with a deadly weapon inflicting serious injury, two counts of
robbery with a dangerous weapon, one count of attempted robbery
with a dangerous weapon, and one count of first degree burglary.
The trial court consolidated the three robbery convictions and the
first-degree burglary conviction into one judgment and imposed an
active sentence of 69 to 92 months. The assault charges were
consolidated into one judgment imposing a sentence of 26-41 months,
which ran consecutive to the first judgment, and was suspended,
with defendant placed on probation. Defendant appeals.
In defendant’s first assignment of error, he argues that the
trial court committed plain error in failing to make inquiry into
the matter of a juror who was observed falling asleep during the
trial. We disagree.
The appellate courts of this state only apply plain error
analysis, when properly presented, to issues of “jury instructionsand evidentiary matters in criminal cases.” State v. Freeman, __
N.C. App. __, __, 596 S.E.2d 319, 322 (2004), citing State v.
Atkins
, 349 N.C. 62, 81, 505 S.E.2d 97, 109 (1998), cert. denied,
526 U.S. 1147, 143 L. Ed. 2d 1036 (1999). Because defendant’s
argument addresses neither, we decline to review it. This
assignment of error is without merit.
In his second assignment of error, defendant argues that the
trial court erred in failing to allow the hearsay statement of a
co-defendant into evidence as a statement against penal interest
pursuant to Rule 804(b)(3) of the North Carolina Rules of Evidence.
We disagree.
“’Hearsay’ is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” N.C.R. Evid.
Rule 801(c). Hearsay evidence is not admissible unless allowed by
statute or the Rules of Evidence. N.C.R. Evid. Rule 802. Rule 804
provides exceptions for the admissibility of hearsay in certain
circumstances when the declarant is unavailable. Rule 804(a)(1)
states that a declarant is “unavailable” under the rule if he is
exempted by ruling from the court from testifying due to privilege.
Rule 804 further states:
(b) Hearsay exceptions. _ The following are not excluded
by the hearsay rule if the declarant is unavailable as a
witness:

(3) Statement Against Interest. _ A statement
which was at the time of its making so far
contrary to the declarant’s pecuniary or
proprietary interest, or so far tended to
subject him to civil or criminal liability, or
to render invalid a claim by him againstanother, that a reasonable man in his position
would not have made the statement unless he
believed it to be true. A statement tending
to expose the declarant to criminal liability
is not admissible in a criminal case unless
corroborating circumstances clearly indicate
the trustworthiness of the statement.

Admission of evidence under the provision of Rule 804(b)(3)
concerning criminal liability requires satisfying a two prong test:
1) the statement must be against the declarant’s penal interest,
and 2) the trial judge must find that corroborating circumstances
insure the trustworthiness of the statement. State v. Kimble, 140
N.C. App. 153, 157, 535 S.E.2d 882, 885 (2000). In order for a
hearsay statement to pass the first prong of the test, it must
actually subject the declarant to criminal liability, State v.
Singleton
, 85 N.C. App. 123, 129, 354 S.E.2d 259, 263 (1987), and
it “also must be such that the declarant would understand its
damaging potential” (i.e. that a reasonable man in declarant’s
position would not have said it unless he believed it to be true).
State v. Tucker, 331 N.C. 12, 25, 414 S.E.2d 548, 555 (1992).
In order to satisfy the second prong, there needs to be “some
other independent, nonhearsay indication of the trustworthiness” of
the statement. State v. Artis, 325 N.C. 278, 305-06, 384 S.E.2d
470, 485 (1989), vacated and remanded on other grounds by Artis v.
North Carolina
, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990). “The
determination of whether the trustworthiness of the statement is
indicated by corroborating circumstances is a preliminary matter to
be decided by the trial judge.” State v. Wardrett, 145 N.C. App.
409, 415, 551 S.E.2d 214, 218 (2001)(citation omitted). “[B]road discretion [must] be afforded the
trial judge in determining the reliability of
the declaration and the declarant by
consideration of such factors as spontaneity,
relationship between the accused and the
declarant, existence of corroborative
evidence, whether or not the declaration had
been subsequently repudiated and whether or
not the declaration was in fact against the
penal interests of the declarant.”

Wardrett, 145 N.C. App. at 415, 551 S.E.2d at 218-19
(2001)(citation omitted). “The facts and circumstances surrounding
the commission of the crime and the making of the declaration must
corroborate the declaration and indicate the probability of
trustworthiness.” Haywood, 295 N.C. at 730, 249 S.E.2d at 442. The
existence of a motive for declarant to have offered a false
statement will be evidence arguing against its admission. Id. at
729, 249 S.E.2d at 441.
In the instant case the trial court determined that the
statement of Beckham failed to meet the requirements for admission
under Rule 804(b)(3). Specifically, the trial court found that the
statement was not of “such a nature that a . . . reasonable man, in
his position, would not have made the statement, unless he believed
it to be true,” that it didn’t “possess the indicia of
trustworthiness, which would otherwise make it admissible,” that
the “statement speaks for itself. Certainly seems to . . .
exculpate him from criminal conduct,” and that considered in light
of all the circumstances it was not inherently trustworthy.
The statement does appear to be an attempt by Beckham to
distance himself from the acts of that night, and place the blamesquarely and solely on Sapp. In the statement Beckham tells
Detective Dozier that he attempted to talk Sapp out of committing
the crime; that he lied to Sapp, telling him that the victims had
a gun, in an attempt to deter Sapp from his intended action; that
he went along with what Sapp wanted because “he might f*** around
and go in there and do that [shoot the victims] and come back out
and get us [shoot us] or whatever,” and again: “So I’m thinking if
I run right now and try to get away he might do me the same way in
the back;” that he was drunk (and possibly high) and in a daze;
that he jumped into the back of the “getaway” truck because he was
afraid that people would see him there and “think I had something
to do with this s***;” and that he “had no choice but to go with
them . . . .” Beckham then told the detective that he didn’t want
to have anything to do with the events of that night, that he did
not take anything from the victims, and never received any of the
stolen money. Finally, he also told the detective that he did not
have anything to do with some other charges that Sapp’s cousin had
apparently implicated him in, and when the detective said: “If what
you say is true… uh, you know.. I think that these things work
themselves out. If you don’t have anything to do with it then you
should be alright,” Beckham agreed with him.
This statement provides ample evidence suggesting that Beckham
was making the statement in an effort to insulate himself from
criminal liability. It does not indicate that he made the
statement knowing that it would subject him to criminal
prosecution, and thus it fails the requirement that a “reasonableman in declarant’s position would not have made the statement
unless he believed it to be true.” Failing this requirement,
defendant fails the first prong of the test for admission under
Rule 804(b)(3), and the trial court did not err by excluding the
statement. Williamson v. United States, 512 U.S. 594, 601, 129 L.
Ed. 2d 476, 483 (1994)(“’The arrest statements of a codefendant
have traditionally been viewed with special suspicion. Due to his
strong motivation to implicate the defendant and to exonerate
himself, a codefendant’s statements about what the defendant said
or did are less credible than ordinary hearsay
evidence.’”)(citations omitted).
We further note that our review of the record, including the
evidence stated above, supports the trial court’s finding that the
statement also failed the second prong of the test, that
corroborating circumstances insure the trustworthiness of the
statement, thus the trial court also committed no abuse of
discretion in excluding the statement based on this finding. This
assignment of error is without merit.
In his third assignment of error, defendant argues that the
trial court erred in failing to allow the hearsay statement of a
co-defendant into evidence pursuant to the Rule 804(b)(5) residual
exception of the North Carolina Rules of Evidence. We disagree.
Nowhere in the record is there evidence that defendant argued
at trial for the admission of Beckham’s statement under Rule
804(b)(5). Defendant’s citations to the record in his brief do not
support his argument, in violation of Rule 28(b)(6) and Rule 28(e). Having failed to raise this issue at trial, defendant may not now
first raise it on appeal. N.C. R. App. P. Rule 10(b)(1); State v.
Holliman
, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685 (2002). This
assignment of error is without merit.
In his fourth assignment of error, defendant argues that the
trial court erred in failing to dismiss all charges against
defendant due to insufficiency of the evidence. We disagree.
“Upon defendant’s motion for dismissal, the question for the
[trial 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)(citations
omitted). Substantial evidence is relevant evidence that a
reasonable person would find sufficient to support a conclusion.
State v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 355
(1987)(citation omitted). When reviewing a motion to dismiss based
on insufficiency of the evidence, this Court must
view the evidence in the light most favorable
to the State, giving the State the benefit of
all reasonable inferences. Contradictions and
discrepancies do not warrant dismissal of the
case but are for the jury to resolve. . . .
Once the court decides that a reasonable
inference of defendant’s guilt may be drawn
from the circumstances, then “’it is for the
jury to decide whether the facts, taken singly
or in combination, satisfy [it] beyond a
reasonable doubt that the defendant is
actually guilty.’”

State v. Barnes, 334 N.C. 67, 75-6, 430 S.E.2d 914, 918-19
(1993)(citations omitted)(emphasis removed). “In addition, thedefendant’s evidence should be disregarded unless it is favorable
to the State or does not conflict with the State’s evidence.” State
v. Fritsch
, 351 N.C. 373, 379, 526 S.E.2d 451, 455 (2000)(citation
omitted), cert. denied, Fritsch v. North Carolina, 531 U.S. 890,
148 L. Ed. 2d 150 (2000).
In the instant case it is undisputed that defendant was at the
crime scene, and that he was aware of Sapp’s intent before he went
to the crime scene. Defendant testified that upon hearing the
shots, instead of running away from the danger and the crime being
committed, he ran to the house. Defendant retrieved the “getaway”
car, and rejoined Sapp and Beckham after the crime to smoke
marijuana that was stolen from the victims. All that is required
for conviction under the theory of acting in concert is that
defendant joined in the purpose of committing a crime, and that
defendant is present, actually or constructively, at the commission
of the crime. State v. Barnes, 345 N.C. 184, 233, 481 S.E.2d 44, 71
(1997)(citations omitted). If the State proves this, then
defendant “is also guilty of any other crime committed by the other
in pursuance of the common purpose . . . or as a natural or
probable consequence thereof.” Id.
There was plenary evidence, when reviewed in the light most
favorable to the State, for the trial court to submit the issue to
the jury. It was then up to the jury to weight the evidence and
render their verdict, which they did. This assignment of error is
without merit.
NO ERROR Judges CALABRIA and GEER concur.
Report per Rule 30(e).

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