State v. Chapman ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-439
Filed: 5 January 2016
Union County, No. 13 CRS 51622
STATE OF NORTH CAROLINA
v.
THOMAS STEVEN CHAPMAN
_____________________________________________________________________________
Union County, No. 13 CRS 51623
STATE OF NORTH CAROLINA
v.
STEPHANIE MARIE THIBAULT
Appeal by defendants from judgments entered 21 October 2014 by Judge Lynn
S. Gullett in Union County Superior Court. Heard in the Court of Appeals 21
September 2015.
Roy Cooper, Attorney General, by Alexandra M. Hightower, Assistant Attorney
General, and Oliver G. Wheeler IV, Assistant Attorney General, for the State.
Bryan Gates for defendant-appellant Thomas Steven Chapman.
Parish & Cooke, by James R. Parish, for defendant-appellant Stephanie Marie
Thibault.
DAVIS, Judge.
STATE V. CHAPMAN
Opinion of the Court
Thomas Steven Chapman (“Chapman”) and Stephanie Marie Thibault
(“Thibault”) (collectively “Defendants”) appeal from the trial court’s judgments
entered on the jury’s verdicts finding each of them guilty of robbery with a dangerous
weapon. After careful review, we conclude that Defendants received a fair trial free
from prejudicial error.
Factual Background
The State’s evidence at trial tended to establish the following facts: On 14
April 2013, Colin Adkins (“Adkins”) was working the night shift as a store clerk at
the Market Express convenience store in Stallings, North Carolina. At approximately
10:00 p.m. that evening, a man entered the store wearing a black hooded sweatshirt
“with a graphic across the front,” jeans, tennis shoes, and a blue bandana pulled up
over his face and nose. The man pulled out a black and silver firearm that “looked
about the size of a thirty-eight special” and told Adkins to give him “everything in the
register.” Initially, the man pointed the gun at Adkins’ head and upper body. He
then moved behind the counter and pressed the gun into Adkins’ ribs. Adkins handed
approximately $1,000.00 from one of the store’s cash registers to the man. Although
the bandana was covering most of the man’s face, Adkins could see that he was
“Caucasian.” Adkins also estimated that the man was about six feet tall.
The Market Express is connected to a McDonald’s restaurant, and Deputy Ian
Gross (“Deputy Gross”), a deputy sheriff with the Union County Sheriff’s Office, was
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off-duty and waiting in the drive-thru line of the McDonald’s at the time of the
robbery. As he was placing his order, Deputy Gross observed a white male in a black
hoodie run out of the Market Express. Upon inquiring what was happening, Deputy
Gross was informed that the Market Express had just been robbed.
Deputy Gross turned his vehicle around and drove across the street in the
direction the man had been running. He lost sight of the man for approximately 15
seconds but then noticed a single car in the parking lot of the Grand Asian Market,
which was closed at the time. Deputy Gross decided to pursue the vehicle, a teal
Nissan Maxima, and followed it for approximately two miles, noting the Maxima’s
license plate number in the process. As he was following the Maxima, he observed
that the vehicle’s occupants “appeared to be a female driver and a male passenger.”
Deputy Gross returned to the McDonald’s to meet the law enforcement officers
who had arrived on the scene and report the license plate number of the Maxima.
Officers performed a computer check on the license plate number and determined
that the listed address for the registered owner of the vehicle was located in the
Brandon Oaks neighborhood in Indian Trail, North Carolina. Officers drove to this
address and found a teal Nissan Maxima matching the description and license plate
number Deputy Gross had provided. The hood of the vehicle was still warm, and the
officers saw a black hooded sweatshirt inside the car.
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Deputy Michael Crenshaw (“Deputy Crenshaw”) with the Union County
Sheriff’s Office approached the front door of the residence located at this address.
Before he had the opportunity to knock on the door, a white female — later identified
as Thibault — exited the home and walked toward him. Deputy Crenshaw asked
Thibault who was inside the residence, and she replied that her mother, sister, and
grandmother were in the home. When Deputy Crenshaw “asked her specifically if
there were . . . any males inside the home,” Thibault responded in the negative.
However, as Deputy Crenshaw was speaking with Thibault, he observed a white male
who appeared to be about six feet tall hiding behind the front door.
Deputy Crenshaw drew his weapon and ordered the male, who was later
identified as Chapman, to exit the home. The other officer on the scene, Corporal
J.W. Weatherman (“Corporal Weatherman”) of the Stallings Police Department,
conducted a pat-down search of Chapman and discovered a large amount of cash on
his person.
Law enforcement officers obtained a search warrant for the home and
discovered in Thibault’s bedroom a pair of jeans, a blue bandana, a black and silver
Colt Defender Air Pistol, and a wallet, which contained a North Carolina-issued
identification card and driver’s license in Chapman’s name. Detective Sergeant R.H.
Cranford (“Detective Sergeant Cranford”) recovered the air pistol from the bedroom
and “render[ed] the weapon safe” by removing the air cartridge and allowing the
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Opinion of the Court
pressurized gas to escape the cartridge. As Detective Sergeant Cranford unscrewed
the air cartridge, he could hear the sound of gas leaving the canister. After
discovering the above-described items in Thibault’s room, Detective Sergeant
Cranford arrested Defendants.
On 2 September 2014, a grand jury returned bills of indictment charging
Defendants with robbery with a dangerous weapon. Defendants’ cases were joined
for trial, and a jury trial was held in Union County Superior Court before the
Honorable Lynn S. Gullett beginning on 13 October 2014. As a part of its case against
Defendants, the State introduced a videotape of a test fire Detective Sergeant
Cranford had conducted utilizing the air pistol recovered from Thibault’s bedroom.
The video showed Detective Sergeant Cranford firing the air pistol at a sheet of
plywood from various distances.
Following the State’s case-in-chief, Thibault elected to testify in her own
defense. She testified that she had known Chapman since 2007 or 2008 and that he
would stay at her home “a couple times a week.” She stated that on the night of 14
April 2013, Chapman came to her house at approximately 7:00 p.m. Thibault offered
him leftover spaghetti, but Chapman told her he would “rather get some McDonald’s”
and that he needed to go out and get cigarettes anyway.
Thibault testified that she accompanied Chapman as he first drove to the
Market Express to buy cigarettes. Chapman entered the store by himself and stood
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Opinion of the Court
in line to purchase the cigarettes. She explained that he then left the store, returned
to the car, and pulled into the drive-thru lane for the McDonald’s. Thibault testified
that they then returned to her house at which point she took a shower, and shortly
thereafter the police arrived. Thibault stated that she had not known that the Market
Express was robbed, had no reason to believe that Chapman was involved in the
robbery, did not drive the get-away car for the robbery, and was not present in the
Grand Asian Market parking lot that evening. Thibault also testified that she and
her nephew had fired the air pistol at targets in the yard earlier in the day on 14
April 2013 and that the BBs they fired barely made it to the target because the air
canister in the air pistol was low and the pressure was weak.
The jury returned verdicts on 21 October 2014 finding both Defendants guilty
of robbery with a dangerous weapon. The trial court determined that Chapman had
a prior record level of two and sentenced him to a presumptive-range term of 73 to
100 months imprisonment. The court determined that Thibault’s prior record level
was one and sentenced her to a presumptive-range term of 64 to 89 months
imprisonment. Defendants gave oral notice of appeal in open court.
Analysis
On appeal, Defendants both contend that the trial court (1) plainly erred by
admitting into evidence a statement from the owner’s manual for a Colt Defender
CO2 Air Pistol because the statement constituted inadmissible hearsay; and (2) erred
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Opinion of the Court
in failing to exercise its discretion with regard to the jury’s request to review certain
evidence in the course of its deliberations. In addition, Thibault separately argues
that (1) the trial court erred in denying her motion to dismiss; (2) the videotape
showing several test fires of the air pistol was improperly admitted; (3) she received
ineffective assistance of counsel by virtue of her attorney’s failure to object to the
admission of the statement from the owner’s manual for the air pistol; and (4) the
trial court erred in allowing the warning label for the air pistol to be read into
evidence. We address each of these arguments in turn.
I. Admission of Statement from Owner’s Manual
Defendants first contend that the trial court erred in allowing Detective
Sergeant Cranford to read a statement from the owner’s operation manual for a Colt
Defender Air Pistol to the jury because this evidence constituted inadmissible
hearsay and violated the Confrontation Clause. Defendants concede that they failed
to object to this evidence at trial and are therefore limited to plain error review.
On plain error review, Defendants bear the burden of showing that a
fundamental error occurred at trial. State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d
326, 334 (2012). “To show that an error was fundamental, a defendant must establish
prejudice — that, after examination of the entire record, the error had a probable
impact on the jury’s finding that the defendant was guilty.” Id. (citation and
quotation marks omitted).
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It is a well-settled principle that 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” and that “whenever an extrajudicial statement is
offered for a purpose other than proving the truth of the matter asserted, it is not
hearsay.” State v. Braxton, 352 N.C. 158, 190, 531 S.E.2d 428, 447 (2000) (citations,
quotation marks, and alteration omitted), cert. denied, 531 U.S. 1130, 148 L.Ed.2d
797 (2001). “A statement which explains a person’s subsequent conduct is an example
of such admissible nonhearsay.” State v. Canady, 355 N.C. 242, 248, 559 S.E.2d 762,
765 (2002).
Here, Detective Sergeant Cranford was asked a series of questions regarding
his performance of a test fire using the air pistol recovered from Thibault’s bedroom.
He testified that he obtained the manual for the Colt Defender Air Pistol “[t]o
understand the safety and the operation for that particular model of air pistol.”
Detective Sergeant Cranford and the prosecutor then had the following exchange:
[Prosecutor]: Okay. Can you explain the information that
you relied upon before conducting your test, and read that
to the jury.
[Detective Sergeant Cranford]: According to the owner’s
operation manual, it’s a 1.77 caliber, 4.5 millimeter CO2
powered, shoot still BB’s only, velocity of 440 feet per
second, danger distance of 325 yards.
Detective Sergeant Cranford proceeded to explain that he had conducted the
test fire by firing the air pistol four times from various distances at a plywood target
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Opinion of the Court
that was one-fourth of an inch thick. He noted that the information contained in the
manual led him to shoot the air pistol at a slight angle when he was in close range of
the target “to eliminate possible ricochet” and avoid injury to himself.
Defendants contend that Detective Sergeant Cranford’s recitation from the
manual of the air pistol’s velocity and danger distance was offered to prove that the
gun used to commit the robbery was capable of firing projectiles at a speed of 440 feet
per second and was dangerous from a distance of 325 yards away such that it
constituted a dangerous weapon for purposes of the criminal offense for which they
were charged. Based on our review of the trial transcript, however, we conclude that
Detective Sergeant Cranford’s testimony reciting the above-quoted statement from
the owner’s manual concerning the danger distance and velocity of the air pistol was
offered for a proper nonhearsay purpose — that is, to explain his conduct when
performing the test fire — rather than for the purpose of providing the velocity and
danger distance of the air pistol to demonstrate that it was, in fact, a dangerous
weapon. Therefore, the admission of this evidence was not error at all much less
plain error. See State v. Wade, 213 N.C. App. 481, 493, 714 S.E.2d 451, 459 (2011)
(explaining that before trial court’s action “can be plain error, it must be error”), disc.
review denied, 366 N.C. 228, 726 S.E.2d 181 (2012).
In a related argument, Thibault contends that her trial counsel provided
ineffective assistance by failing to object to the admission of this testimony. In order
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Opinion of the Court
to successfully establish an ineffective assistance of counsel claim, “a defendant must
show that (1) counsel’s performance was deficient and (2) the deficient performance
prejudiced the defense.” State v. Phillips, 365 N.C. 103, 118, 711 S.E.2d 122, 135
(2011) (citation and quotation marks omitted), cert. denied, ___ U.S. ___, 182 L.Ed.2d
176 (2012). “Deficient performance may be established by showing that counsel’s
representation fell below an objective standard of reasonableness.” State v. Allen,
360 N.C. 297, 316, 626 S.E.2d 271, 286 (citation and quotation marks omitted), cert.
denied, 549 U.S. 867, 166 L.E.2d 116 (2006). Thibault cannot make this showing
here.
As we previously explained, the testimony at issue was offered for a
nonhearsay purpose. As a result, an objection in the trial court on hearsay grounds
would have been meritless. Moreover, it is also well settled that nonhearsay
statements do not offend the Confrontation Clause. See State v. Gainey, 355 N.C. 73,
87, 558 S.E.2d 463, 473 (explaining that “admission of nonhearsay raises no
Confrontation Clause concerns” (citation and quotation marks omitted)), cert. denied,
537 U.S. 896, 154 L.Ed.2d 165 (2002). Because any objection to Detective Sergeant
Cranford’s recitation of the statement from the manual on either hearsay or
Confrontation Clause grounds would have lacked merit, Thibault’s trial counsel was
not deficient by failing to raise these objections. See Phillips, 365 N.C. App. at 131,
711 S.E.2d at 143 (holding that trial counsel’s “failure to object to [a] long-standing
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Opinion of the Court
evidentiary rule was not objectively unreasonable” and rejecting proposition “that, to
avoid being ineffective, defense counsel is required to argue a position untenable
under existing North Carolina law”).
II. Exercise of Discretion Regarding Jury’s Request to Review Testimony
Defendants’ next argument is that the trial court erred by failing to exercise
its discretion in connection with the jury’s request to review certain testimony and
that this error was prejudicial. For the reasons set out below, we hold that the trial
court did so err but that Defendants have failed to show the prejudice necessary to
receive a new trial as a result of this error.
Pursuant to N.C. Gen. Stat. § 15A-1233(a),
[i]f the jury after retiring for deliberation requests a review
of certain testimony or other evidence, the jurors must be
conducted to the courtroom. The judge in his discretion,
after notice to the prosecutor and defendant, may direct
that requested parts of the testimony be read to the jury
and may permit the jury to reexamine in open court the
requested materials admitted into evidence. In his
discretion the judge may also have the jury review other
evidence relating to the same factual issue so as not to give
undue prominence to the evidence requested.
N.C. Gen. Stat. § 15A-1233(a) (2013). This statutory requirement codifies the well-
established common law rule that “the decision whether to grant or refuse a request
by the jury for a restatement of the evidence after jury deliberations have begun lies
within the discretion of the trial court.” State v. Johnson, 346 N.C. 119, 124, 484
S.E.2d 372, 375 (1997).
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Opinion of the Court
Our appellate courts have held on a number of occasions that when a trial court
“denies a request by the jury to review a transcript based upon its erroneous belief
that it has no power or discretion to grant the request, such a denial is error.” State
v. White, 163 N.C. App. 765, 769, 594 S.E.2d 450, 452, disc. review denied, 358 N.C.
738, 602 S.E.2d 681 (2004); see also State v. Starr, 365 N.C. 314, 318, 718 S.E.2d 362,
366 (2011) (noting “the well-settled rule that a trial court does not exercise its
discretion when, as evidenced by its response, it believes it cannot comply with the
jury’s transcript request”).
In this case, during its deliberations the jury sent a note to the trial court
requesting (1) Deputy Gross’ statement from the night of the incident; (2) Deputy
Gross statement resulting from his meeting with an assistant district attorney; and
(3) a transcript of Deputy Gross’ testimony at trial. The trial court brought the jury
back into the courtroom and responded to its requests as follows:
Yes, absolutely, we will send you back the victim witness
statement from Deputy Ian Gross the night of the incident.
We’ll send that back to the jury room to you in just a few
minutes.
The other two are problematic. First of all, I need to
explain to you that there is not an actual witness statement
that was made from Ian Gross to the District Attorney.
And there is no such item in evidence so that is not
available and there isn’t one. So we can’t provide that for
you.
Secondly, you have requested the transcript of
Deputy Gross’s testimony from the witness stand.
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Opinion of the Court
Transcripts aren’t automatically generated. That’s
something that takes several weeks sometimes for a court
reporter to do. We can’t provide that for you because it is
not available at this time.
And let me remind you that it is your duty to recall
the testimony to the best of your ability as the jurors in this
matter. But we can certainly and will be glad to provide to
you the statement of Deputy Gross the night of the incident
because that’s all we have available from what you are
requesting. So thank you and I’ll send you back to the jury
room. We’ll send that back to you momentarily through the
bailiff.
Defendants assert that the trial court’s response to the jury’s note asking to
examine Deputy Gross’ trial testimony shows that it did not exercise its discretion in
denying that particular request. We agree.
The trial court’s explanation that it was refusing the jury’s request because a
transcript was not currently available is indistinguishable from similar responses to
jury requests that have been found by our Supreme Court to demonstrate a failure to
exercise discretion. See Johnson, 346 N.C. at 123-24, 484 S.E.2d at 375-76 (holding
that trial court’s statement to jurors that it “need[ed] to instruct you that we will not
be able to replay or review the testimony for you . . . . must be interpreted as a
statement that the trial court believed it did not have discretion to consider the
request” and thus constituted a failure to exercise discretion); State v. Ashe, 314 N.C.
28, 35, 331 S.E.2d 652, 656-57 (1985) (explaining that trial court’s statement to
foreperson that “[t]here is no transcript at this point. You and the other jurors will
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Opinion of the Court
have to take your recollection of the evidence” established that “the trial court erred
. . . in not exercising its discretion in denying the request”).
Here, because the trial court similarly erred by not exercising its discretion in
denying the jury’s request to review Deputy Gross’ testimony, “we must now
determine whether the trial court’s failure to exercise its discretion resulted in
prejudice to [Defendants].” State v. Long, 196 N.C. App. 22, 40, 674 S.E.2d 696, 707
(2009). A review of the pertinent caselaw reveals that a trial court’s error in failing
to exercise its discretion in denying a jury’s request to review testimony constitutes
prejudicial error when the requested testimony (1) is “material to the determination
of defendant’s guilt or innocence”; and (2) involves “issues of some confusion or
contradiction” such that the jury would want to review this evidence to fully
understand it. Johnson, 346 N.C. at 126, 484 S.E.2d at 377 (citation and quotation
marks omitted).
In Johnson, the jury asked to review the testimony of the five-year-old child
victim and her aunt in a case involving charges of statutory rape and taking indecent
liberties with a child. Id. at 123, 484 S.E.2d at 375. The trial court denied the jury’s
request based on its mistaken belief that it did not have the authority to allow the
jury to review the testimony. Id. The jury then returned to its deliberations and
found the defendant guilty of both charges. Id. The defendant appealed, and our
Supreme Court concluded that the trial court’s error was prejudicial to the defendant,
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Opinion of the Court
holding as follows:
Having determined that the trial court erred in not
exercising its discretion in determining whether to permit
the jury to review some of the testimony, we now consider
whether these errors were so prejudicial as to entitle
defendant to a new trial. We conclude they were. The
evidence requested for review by the jury in this case was
clearly material to the determination of defendant’s guilt
or innocence. The testimonies of both J, the victim, and her
Aunt Barbara were central to this case, and both
testimonies involved issues of some confusion and
contradiction. The medical evidence was inconclusive as to
whether J had been raped, and there was no medical proof
linking the defendant to the alleged crimes. Further, there
were no eyewitnesses to the alleged crimes and no
witnesses who heard or saw anything unusual. Thus, J’s
testimony was crucial because it was the only evidence
directly linking defendant to the alleged crimes. As such,
J’s credibility was the key to the case. J’s testimony was
likely difficult for the jury to follow or assess due to its often
confusing and self-contradictory nature. Barbara’s
testimony was also important because she was the first
person J told about the alleged incident, and she also had
information about the incident with J’s cousin Jerome,
about which J and [another child] testified. Thus, whether
the jury fully understood the witnesses’ testimony was
material to the determination of defendant’s guilt or
innocence. Defendant was at least entitled to have the
jury’s request resolved as a discretionary matter, and it
was prejudicial error for the trial judge to refuse to do so.
Id. at 126, 484 S.E.2d at 377 (internal citations, quotation marks, and brackets
omitted).
Likewise in Long, this Court held that the trial court’s failure to exercise its
discretion with regard to the jury’s similar request rose to the level of prejudicial
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error. Long, 196 N.C. App. at 40-41, 674 S.E.2d at 707. In that case, the jury sought
to review a transcript of the testimony of the victim and the defendant in a child rape
case. Id. at 40, 674 S.E.2d at 707. We explained that the evidence requested was
material to a determination of guilt and that the two testimonies were “[c]ertainly . .
. contradicting as [the victim] testified she was raped and that defendant committed
other sexual offenses against her, while defendant testified he had never touched her
inappropriately.” Id. at 40-41, 674 S.E.2d at 707 (internal citation, quotation marks,
and brackets omitted). We further noted that the fact that the defendant had
previously confessed to the charges and then recanted this confession at trial would
increase the likelihood that the jury would want to review his contradictory
testimony. Id. at 41, 674 S.E.2d at 707.
Conversely, in Starr, our Supreme Court concluded that the trial court’s failure
to exercise its discretion in denying the jury’s request to review a witness’ testimony
was not prejudicial under the circumstances. Starr, 365 N.C. at 320, 718 S.E.2d at
366. In Starr, the defendant was charged with one count of assaulting a law
enforcement officer with a firearm and four counts of assaulting a firefighter with a
firearm arising out of an incident at the defendant’s apartment complex. Id. at 315,
718 S.E.2d at 364. The four firefighters and a police officer were dispatched to the
defendant’s apartment complex after receiving a 911 call reporting water leaking into
one of the units. Id. The defendant was the upstairs resident from whose unit the
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leak appeared to originate, and due to a concern that the defendant might be in need
of medical assistance, the firefighters and police officer “knocked loudly” on his door
and identified themselves. Id. The defendant did not respond, and they forced entry.
Id. One of the firefighters, Marvin Spruill (“Spruill”), saw the defendant standing
approximately 12 feet away and pointing a gun in their direction. Spruill and another
firefighter heard a “pop” sound before the defendant was ordered to — and, in fact,
did — drop his weapon. Id.The jury asked to review Spruill’s testimony, and its request was denied by the
trial judge, who stated “we don’t have the capability of realtime transcripts so we
cannot provide you with that.” Id. at 317, 718 S.E.2d at 365 (emphasis omitted). The
jury then returned guilty verdicts for the four counts of assaulting a firefighter with
a firearm and acquitted the defendant of the one count of assaulting a law
enforcement officer with a firearm. Id. at 316, 718 S.E.2d at 364. On appeal, the
defendant argued that he was entitled to a new trial based on the trial court’s failure
to exercise its discretion. Our Supreme Court rejected his contention, explaining that
Defendant bears the burden of showing that he has been
prejudiced by the trial court’s error in not exercising
discretion in accordance with N.C.G.S. § 15A-1233(a). He
must show “a reasonable probability that, had the error in
question not been committed, a different result would have
been reached at the trial out of which the appeal arises.”
N.C.G.S. § 15A-1443(a).
Defendant argues that “[t]he jury’s review of
Fireman Spruill’s testimony could have reasonably
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resulted in not guilty verdicts for [defendant] on one or
more of the guilty verdicts of the four firemen.” Defendant
has not carried his burden of proving that the error was
prejudicial. He does not explain how the review of Spruill’s
testimony would have created a reasonable possibility that
a different result would have been reached at his trial. The
jury had the opportunity to see and hear Spruill’s
testimony at trial, see State v. Covington, 290 N.C. 313,
344, 226 S.E.2d 629, 649-50 (1976), and the testimony was
not confusing or contradicted, see Johnson, 346 N.C. at 126,
484 S.E.2d at 377. Further, Spruill’s testimony was not
“‘material to the determination of defendant's guilt or
innocence.’” Id. (quoting Lang, 301 N.C. at 511, 272 S.E.2d
at 125). Specifically, the requested testimony was
incriminating to defendant and came from a witness for the
prosecution, unlike alibi testimony or other testimony that
would tend to benefit a defendant. See State v. Hudson,
331 N.C. 122, 144-45, 415 S.E.2d 732, 744 (1992), cert.
denied, 506 U.S. 1055, 113 S.Ct. 983 (1993); Lang, 301 N.C.
at 511, 272 S.E.2d at 125. In addition, Spruill's testimony
was not “the only evidence directly linking defendant to the
alleged crimes.” Johnson, 346 N.C. at 126, 484 S.E.2d at
377. Rather, three other witnesses gave testimony that
corroborated Spruill’s testimony. Defendant thus has not
demonstrated a reasonable possibility that a different
result would have been reached at his trial had the error
not been committed.
Id. at 319-20, 718 S.E.2d at 366.
Here, both Defendants contend that Deputy Gross’ testimony was pivotal in
the State’s case against them such that the trial court’s error in failing to exercise its
discretion concerning the jury’s request to review that testimony constituted
prejudicial error. Chapman contends that he “was prejudiced because without Gross’
testimony there was no link between Chapman and the Market Express robbery.
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None of the persons present at the time of the robbery were able to identify Chapman
as the person who robbed the store.”
Thibault argues that she was prejudiced because Deputy Gross “placed a
female driver in the vehicle with the person who appeared to have robbed [the Market
Express]. His accuracy and credibility were crucial to both the State and the defense
cases.” We address Defendants’ respective arguments in turn.
As was the case in Starr, the witness testimony at issue here is incriminating
as to Chapman and came from a witness for the prosecution. Gross’ trial testimony
implicating a person matching Chapman’s physical description in the robbery was
consistent with his statement to law enforcement officers the night of the incident —
a statement the jury was permitted to review during deliberations. Moreover, and
contrary to Chapman’s argument on appeal, Gross’ testimony was not the only
evidence linking Chapman to the crime. Adkins also provided a description of the
robber’s appearance and attire which was consistent with Chapman’s physical
characteristics and the clothing found in the search of the Nissan Maxima and
Thibault’s home. Finally, a large amount of cash was found on Chapman’s person,
and a wallet containing his identification card and driver’s license was discovered by
law enforcement officers in the same room as and in close proximity to the air pistol
and blue bandana.
Thus, the circumstances of the present case are distinguishable from our
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decision in State v. Thompkins, 83 N.C. App. 42, 348 S.E.2d 605 (1986). In that case,
we held that the trial court’s failure to exercise its discretion with regard to the jury’s
request to review the testimony of the individual who identified the defendant as the
perpetrator of the offenses was prejudicial error. In Thompkins, a felonious breaking
or entering and larceny case, the stolen property was not found in the defendant’s
possession, and the witness’ testimony identifying him as the man she saw “carrying
a large object in his hands” from the rear of the burglarized home was the only
evidence linking the defendant to the crimes. Id. at 44, 348 S.E.2d at 606.
Here, conversely, while Gross’ testimony was important in explaining how law
enforcement officers came to investigate the Nissan Maxima and Thibault’s home,
their subsequent investigation yielded additional evidence linking Chapman to the
crime — namely, the cash found on his person, the air pistol, and the clothing that
matched the description provided by Adkins. Chapman’s contention that the trial
court’s error was prejudicial is therefore overruled.
Thibault asserts that the trial court’s error was prejudicial to her because
Gross’ testimony identified a female as the driver of the vehicle that left the scene of
the Market Express robbery with the male suspect. Thibault contends that this
testimony was the only evidence that implicated her because it was the sole support
for the State’s theory that she either acted in concert with or aided and abetted
Chapman in committing the robbery. We disagree.
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STATE V. CHAPMAN
Opinion of the Court
First, Thibault’s own trial testimony placed her in the Nissan Maxima at the
Market Express on the night of the robbery. She admitted that she accompanied
Chapman to the Market Express and the adjoining McDonald’s in the Nissan earlier
that evening, she remained in the vehicle while Chapman went inside the store to
purchase cigarettes, and they then drove around to the McDonald’s drive-thru lane
so he could buy a sandwich. Second, the air pistol and blue bandana were discovered
by law enforcement officers in her bedroom in her own residence, and the Maxima
implicated in the robbery was her vehicle. Finally, Thibault falsely responded in the
negative when asked by Deputy Crenshaw whether there were any men present in
her home despite the fact that Chapman was in actuality only a few feet away —
hiding behind the front door she had walked through only moments earlier.
For these reasons, Gross’ testimony that a female “appeared” to be driving the
car he followed that night was not the only evidence indicating that she participated
in the Market Express robbery. Moreover, Gross’ testimony overall was favorable to
the State rather than to Thibault. See Starr, 365 N.C. at 319-20, 718 S.E.2d at 366(rejecting defendant’s attempt to show error was prejudicial where testimony at issue
was “incriminating to defendant and came from a witness for the prosecution” and
did not constitute the only evidence linking defendant to offense). Therefore, Thibault
has failed to demonstrate a reasonable probability that the outcome of the
proceedings would have been different had the jury had the opportunity to review
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Opinion of the Court
Gross’ trial testimony. As such, she has not demonstrated prejudicial error.
III. Denial of Thibault’s Motion to Dismiss
Thibault contends that the trial court erred by denying her motion to dismiss
the robbery with a dangerous weapon charge for insufficient evidence because the
State failed to prove that “she knowingly committed the crime as an actor in concert
or as an aider or abettor.” At trial, however, Thibault’s motion to dismiss the charge
against her was based on an entirely different ground — insufficiency of the evidence
as to the “dangerous weapon” element of the offense. In asserting this motion, her
attorney stated the following:
In this case, Your Honor, the uncontroverted evidence is
that the state is alleging that a BB air pistol was used in
the commission of this alleged robbery. And we don’t feel
that the state has provided sufficient evidence of its nature
of being a dangerous weapon to satisfy the element
required for robbery with a dangerous weapon.
We contend there has been no evidence showing that
the manner in which it was used, in which the BB gun was
used, rises to the level of being a dangerous weapon. Based
upon that, we would ask Your Honor to dismiss the charge
of robbery with a dangerous weapon.
It is well established that “the law does not permit parties to swap horses
between courts in order to get a better mount before an appellate court.” Geoscience
Grp., Inc. v. Waters Constr. Co., ___ N.C. App. ___, ___, 759 S.E.2d 696, 703 (2014)
(citation, quotation marks, and alteration omitted). Consequently, when a defendant
presents one argument in support of her motion to dismiss at trial, she may not assert
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Opinion of the Court
an entirely different ground as the basis of the motion to dismiss before this Court.
See State v. Shelly, 181 N.C. App. 196, 207, 638 S.E.2d 516, 524 (“When a party
changes theories between the trial court and an appellate court, the assignment of
error is not properly preserved and is considered waived.”), disc. review denied, 361
N.C. 367, 646 S.E.2d 768 (2007).
Because Thibault has failed to properly preserve the specific argument she now
seeks to make on appeal regarding the basis upon which her motion to dismiss should
have been granted, we decline to reach the merits of her argument. See State v.
Euceda-Valle, 182 N.C. App. 268, 271-72, 641 S.E.2d 858, 861-62 (refusing to consider
defendant’s argument on appeal regarding denial of motion to dismiss charge of
intentionally maintaining a vehicle for keeping a controlled substance; defendant
moved to dismiss charge at trial on basis that he lacked actual knowledge that cocaine
was in Nissan and did not have an ownership interest in that vehicle but then
“present[ed] a different theory to support his motion to dismiss” on appeal, asserting
that “the State failed to prove that he possessed the Nissan with the cocaine in the
trunk for a substantial period of time”), appeal dismissed and disc. review denied, 361
N.C. 698, 652 S.E.2d 923 (2007).
IV. Videotape of Test Fire
Thibault next asserts that the videotape showing Detective Sergeant Cranford
test firing the Colt Defender Air Pistol was improperly admitted because the State
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STATE V. CHAPMAN
Opinion of the Court
failed to demonstrate that “the capabilities of the air pistol at the time of the
experiment were substantially similar to those at the time of the taking of the
property.”
It is well established that “[t]he determinative question in reviewing whether
a weapon may be considered dangerous [for purposes of robbery with a dangerous
weapon], is whether the evidence was sufficient to support a jury finding that a
person’s life was in fact endangered or threatened.” State v. Hall, 165 N.C. App. 658,
665, 599 S.E.2d 104, 108 (2004) (citation, quotation marks, and emphasis omitted).
In prior cases involving pellet or BB guns, we have held that the State presented
sufficient evidence of the dangerous nature of the weapon by demonstrating that it
“was capable of denting a quarter-inch piece of cedar plywood at distances up to two
feet” and that the defendant had pointed the weapon at the victim’s face from a
distance of six to eight inches. Id. at 665-66, 599 S.E.2d at 108; see also State v.
Westall, 116 N.C. App. 534, 540-41, 449 S.E.2d 24, 28 (holding that “there was clearly
sufficient evidence to permit the jury to decide whether defendant committed robbery
with a dangerous weapon” where evidence showed that (1) defendant had placed
pellet gun directly against victim’s back; and (2) the pellet gun was capable of “totally
penetrating a quarter-inch of plywood”), disc. review denied, 338 N.C. 671, 453 S.E.2d
185 (1994).
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STATE V. CHAPMAN
Opinion of the Court
In the present case, the videotape viewed by the jury showed Detective
Sergeant Cranford performing a similar experiment to test the shooting capabilities
of this particular air pistol. Specifically, he fired the air pistol four times at a plywood
sheet from various distances while another law enforcement officer videotaped him
doing so.
Thibault contends that the videotaped experiment should not have been
admitted into evidence here because (1) during the test fire, the State utilized a new,
unopened air cartridge, which contained a higher level of air pressure and thus was
capable of firing a projectile with greater impact than an air cartridge that has
previously been used; and (2) Thibault testified that she and her nephew had fired
the air pistol recovered from her home just a few hours before the robbery at which
time the air pistol’s CO2 cartridge was so low that the shots they fired barely made it
to the target.
Experimental evidence is competent and admissible
if the experiment is carried out under substantially similar
circumstances to those which surrounded the original
occurrence. The absence of exact similarity of conditions
does not require exclusion of the evidence, but rather goes
to its weight with the jury. The trial court is generally
afforded broad discretion in determining whether
sufficient similarity of conditions has been shown.
State v. Locklear, 349 N.C. 118, 147, 505 S.E.2d 277, 294 (1998) (internal citations
omitted), cert. denied, 526 U.S. 1075, 143 L.Ed.2d 559 (1999).
Our Court has held the substantial similarity requirement for experimental
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STATE V. CHAPMAN
Opinion of the Court
evidence “does not require precise reproduction of circumstances.” State v. Clifton,
125 N.C. App. 471, 477, 481 S.E.2d 393, 397, disc. review improvidently allowed, 347
N.C. 391, 493 S.E.2d 56 (1997). The trial court must consider whether the differences
between conditions can be explained by the witness so that any effects arising from
the dissimilarity may be understood by the jury, and “[c]andid acknowledgement of
dissimilarities and limitations of the experiment” is generally sufficient to prevent
experimental evidence from being prejudicial. Id.Here, Detective Sergeant Cranford testified that he utilized the actual Colt
Defender Air Pistol that he recovered from Thibault’s bedroom to conduct the test
fire. He explained that (1) he had previously released the pressurized air from the
cartridge that was in the air pistol when it was first recovered in order to “render the
weapon safe prior to transporting it [and] storing it”; and (2) the owner’s manual for
the weapon cautioned users to “never attempt to reuse a CO2 capsule for any
purpose.” Consequently, when he performed the test fire he loaded the air pistol with
a new CO2 cartridge that complied with the specifications recommended in the Colt
Defender owner’s manual. In discussing his experiment at trial, he acknowledged
both that the pressure level of an air cartridge dissipates over time and use,
decreasing the force with which the BB is projected from the gun, and that while he
had heard the sound of gas escaping when he unscrewed the cartridge to “render the
weapon safe,” he was unsure of the precise amount of air that was present within the
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STATE V. CHAPMAN
Opinion of the Court
cartridge at the time of the weapon’s recovery.
We conclude that the trial court did not err in admitting the video of the test
fire. In his experiment, Detective Sergeant Cranford utilized the same weapon
Chapman brandished during the robbery and fired it at a target from several close-
range positions that were comparable to the various distances from which the air
pistol had been pointed at Adkins. Detective Sergeant Cranford noted the possible
dissimilarity between the amount of gas present in the air cartridge at the time of
the robbery and the amount of gas contained within the new cartridge used for the
experiment, acknowledging the effect that greater air pressure would have on the
force of the projectile and its impact on a target. See State v. Jones, 287 N.C. 84, 99,
214 S.E.2d 24, 34 (1975) (holding that “[p]recise reproduction of circumstances is not
required” when witness accounts for and explains effect of any dissimilarities); see
also State v. Golphin, 352 N.C. 364, 434, 533 S.E.2d 168, 215 (2000) (explaining with
regard to experimental evidence that “exclusion is not required when the conditions
are not exactly similar; rather, it goes to the weight of the evidence with the jury”),
cert. denied, 532 U.S. 931, 149 L.Ed.2d 305 (2001). Moreover, the trial transcript
reveals that Detective Sergeant Cranford was cross-examined by defense counsel on
this issue.
We further note that while Thibault asserts the air pressure of the cartridge
had been severely diminished on the day of the robbery, she does not take issue with
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STATE V. CHAPMAN
Opinion of the Court
the State’s evidence that during the time period in which the robbery took place the
air pistol was operable, loaded with an air cartridge and BB pellets, and pointed at a
target from a very close range — conditions that were replicated in the test fire.
Thibault’s argument on this issue is therefore overruled.
V. Warning Label
Finally, Thibault argues that the portion of Detective Sergeant Cranford’s
testimony in which he read the warning statement included in the owner’s manual
for the Colt Defender Air Pistol was improperly admitted because this statement
constituted inadmissible hearsay and violated the Confrontation Clause.
Specifically, he testified as follows regarding the warning statement:
[Prosecutor]: [D]id you obtain an owner’s manual for that
weapon?
[Detective Sergeant Cranford]: Yes.
[Prosecutor]: Why did you do that?
[Detective Sergeant Cranford]: To understand the safety
and the operation for that particular model of air pistol.
....
[Prosecutor]: Is there a warning beneath there that you
relied upon?
[Detective Sergeant Cranford]: Yes, sir. There is.
[Prosecutor]: Would you read that warning that’s just
below that information?
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STATE V. CHAPMAN
Opinion of the Court
[Thibault’s trial counsel]: Objection, Your Honor.
[The Court]: Noted for the record. Overruled.
[Prosecutor:] Please speak into the mic so you can be heard.
[Detective Sergeant Cranford]: It says, “Warning, not a toy,
adult supervision required, misuse or careless use may
cause serious injury or death, may be dangerous up to 325
yards or 297 meters” in parentheses.
Unlike the other testimony by Detective Sergeant Cranford regarding the
manual’s contents, his testimony concerning the warning statement contained in the
manual was objected to by Thibault’s trial counsel. That objection, however, was
based on a different ground than that asserted by her on appeal. Rather than making
the hearsay and Confrontation Clause arguments she is currently asserting, she
argued instead in the trial court that the introduction of the warning statement would
be unfairly prejudicial because “these warnings are created . . . in order to make
protections against (sic) the manufacturer against lawsuits, and, therefore, they
overinflate the possibilities of serious injury that may result from improper use.” The
trial court overruled her objection on that specific ground, stating that “the evidence
is highly probative, and the Court doesn’t believe that it’s unfairly prejudicial.”
As discussed above, “[a] defendant cannot swap horses between courts in order
to get a better mount.” State v. Howard, 228 N.C. App. 103, 107, 742 S.E.2d 858, 860
(2013) (citation and quotation marks omitted), aff’d per curiam, 367 N.C. 320, 754
S.E.2d 417 (2014). Therefore, once again, we do not reach the merits of her argument
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STATE V. CHAPMAN
Opinion of the Court
on this issue. See id. (refusing to review defendant’s argument on appeal that
evidence violated Rule 404(b) where defendant objected at trial only to evidence’s
prejudicial effect under Rule 403).
Conclusion
For the reasons stated above, we conclude that both Defendants received a fair
trial free from prejudicial error.
NO PREJUDICIAL ERROR.
Chief Judge McGEE and Judge ELMORE concur.
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