State v. Crowder ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-824
NORTH CAROLINA COURT OF APPEALS
Filed: 18 March 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 10 CRS 205883
MICHAEL RASHAWN CROWDER
Appeal by defendant from judgment entered 26 February 2013
by Judge C. Thomas Edwards in Mecklenburg County Superior Court.
Heard in the Court of Appeals 7 January 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Melissa L. Trippe, for the State.
Marilyn G. Ozer for defendant.
HUNTER, Robert C., Judge.
Defendant Michael Crowder appeals the judgment entered
after a jury convicted him of first degree murder on the basis
of felony murder. After careful review, because the State
failed to present substantial evidence that defendant
constructively possessed or attempted to possess the marijuana
found in the victim’s van, we reverse the trial court’s order
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denying defendant’s motion to dismiss and vacate defendant’s
conviction for felony murder.
Background
The State’s evidence presented at trial tended to establish
the following: Defendant and Aaron Shawn Wood (“Mr. Wood”) knew
each other while they were residents at McLeod Center, a halfway
house. After Mr. Wood left the halfway house, sometime in late
2006 or early 2007, he started a trucking company with Rickie
Hooper (“Mr. Hooper”). On 6 March 2007, Mr. Wood and Mr. Hooper
drove to Columbia, South Carolina to pick up one of their trucks
that had broken down. During the trip, Mr. Wood told Mr. Hooper
that he was stressed about money. However, Mr. Wood told Mr.
Hooper that a “guy from the halfway house” owed him money and
that Mr. Wood was meeting with this “guy” the next day. Mr.
Wood claimed that after this meeting, their “money problems”
would be solved.
The next day, on 7 March, Mr. Hooper called Mr. Wood
several times to discuss loads coming in later in the week.
Finally, around six that evening, Mr. Wood answered his phone.
Mr. Hooper testified, over objection, that he heard two voices
in the background; Mr. Hooper claimed that Mr. Wood told him
that one of the guys in the background was “Travis” from the
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halfway house. Mr. Wood then told Mr. Hooper that he would call
him back, but Mr. Wood never did.
Sheldon Wood, Mr. Wood’s brother, (“Sheldon”) testified at
trial that Mr. Wood was involved in drug dealing. On the day
Mr. Wood was killed, Mr. Wood called Sheldon and asked him to
ride with him to meet “a halfway dude.” Sheldon was working
that day, so he was unable to go with him.
On 7 March 2007, George Young (“Mr. Young”) and his family
were eating dinner at their residence on Greenview Place. After
he heard three or four gunshots, he got up and looked out the
window. Mr. Young testified that he saw two men in a maroon van
and one man outside the van. The passenger in the van was later
identified as defendant. Investigators later determined that
the owner of the van was Mr. Wood’s fiancée. The man outside of
the van, whom Mr. Young described as tall and slim and
recognized from the neighborhood, was shooting into the van’s
driver’s side window. Mr. Young claimed he heard three to four
more shots. Mr. Young observed the passenger in the van bending
over as if he was picking something up. The driver of the van,
later identified as Mr. Wood, was slumped over. After the
shooting stopped, Mr. Young stepped out onto his front porch and
saw a burgundy BMW drive past. Defendant was driving the
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vehicle and the tall, slim shooter was sitting in the passenger
seat. Mr. Wood died from multiple gunshot wounds.
Later evidence and eyewitness testimony would indicate that
the shooter was Travis Cunningham (“Mr. Cunningham”). Prior to
trial, the State made a motion in limine to preclude defendant
from introducing evidence at trial that Mr. Cunningham was not
charged in connection with this crime. The trial court deferred
ruling on the State’s motion until it heard evidence; however,
during the presentation of the State’s evidence, the trial court
ruled that defendant could ask anything about the investigation
that tended to show Mr. Cunningham was the shooter except
defendant was not allowed to ask about the fact that Mr.
Cunningham was not charged in relation to this crime.
In Mr. Wood’s van, investigators collected five bricks of
marijuana weighing around 500 grams each, or approximately one
pound, and two broken bricks of marijuana weighing about 200
grams each. In addition, investigators found a brick of
marijuana lying on the ground outside the van near the passenger
door. A fingerprint analyst for the State testified that only
one of the bricks of marijuana had defendant’s fingerprint on
it. Additionally, Mr. Cunningham’s fingerprint was found on a
different brick of marijuana. No other fingerprints found on
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the marijuana bricks were identified as defendant’s.
Investigators were able to determine that a phone found in Mr.
Wood’s van was registered to defendant.
Susan Sarvis, a homicide detective with the Charlotte-
Mecklenburg Police Department, (“Detective Sarvis”) testified
that DNA found on a cigarette butt outside the van belonged to
Mr. Cunningham. Detective Sarvis stated at trial that Mr.
Cunningham was dating defendant’s sister.
Defendant did not present any evidence at trial.
The trial court instructed the jury on felony murder, with
the underlying felony being that defendant, either by himself or
acting in concert with another, committed or attempted to commit
felony possession of marijuana with the use of a deadly weapon.
On 26 February 2013, the jury found defendant guilty of felony
murder. The trial court sentenced defendant to life
imprisonment without parole. Defendant timely appealed.
Arguments
Defendant first argues that the trial court erred in
denying his motion to dismiss the charge of felony murder.
Specifically, defendant contends that the State failed to
present sufficient evidence of the underlying offense of
possession or attempted possession of a felonious amount of
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marijuana. Since the State’s evidence of the alleged drug
transaction only rose to the level of suspicion and conjecture,
there was insufficient evidence to support the underlying
felony, and the trial court should have granted his motion to
dismiss. We agree.
“This Court reviews the trial court’s denial of a motion to
dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650
S.E.2d 29, 33 (2007). “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. Fritsch, 351 N.C. 373, 378, 526
S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150
(2000) (internal quotation marks omitted). “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), cert denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).
However, if the State’s evidence “is sufficient only to raise a
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suspicion or conjecture as to either the commission of the
offense or the identity of the defendant as the perpetrator, the
motion to dismiss must be allowed[,] . . . even [if] the
suspicion aroused by the evidence is strong.” State v. Malloy,
309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983).
“First-degree murder by reason of felony murder is
committed when a victim is killed during the perpetration or
attempted perpetration of certain enumerated felonies or a
felony committed or attempted with the use of a deadly weapon.”
State v. Gibbs, 335 N.C. 1, 51, 436 S.E.2d 321, 350 (1993),
cert. denied, 512 U.S. 1246, 129 L. Ed. 2d 881 (1994). Here,
the State submitted possession or attempted possession of a
felonious amount of marijuana as the underlying felony offense.
See State v. Herring, 176 N.C. App. 395, 400, 626 S.E.2d 742,
746 (2006) (noting that trafficking or attempted trafficking in
cocaine may serve as the underlying felony in a felony murder
charge when a defendant, either by himself or acting in concert,
uses a deadly weapon). Defendant contends that the State failed
to present sufficient evidence to support the elements of
possession or attempted possession of a felonious amount of
marijuana; thus, the trial court erred in denying his motion to
dismiss.
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Our Supreme Court has noted that:
In a prosecution for possession of
contraband materials, the prosecution is not
required to prove actual physical possession
of the materials. Proof of nonexclusive,
constructive possession is sufficient.
Constructive possession exists when the
defendant, while not having actual
possession, has the intent and capability to
maintain control and dominion over the
narcotics. Where such materials are found
on the premises under the control of an
accused, this fact, in and of itself, gives
rise to an inference of knowledge and
possession which may be sufficient to carry
the case to the jury on a charge of unlawful
possession. However, unless the person has
exclusive possession of the place where the
narcotics are found, the State must show
other incriminating circumstances before
constructive possession may be inferred.
State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270-71
(2001) (internal citations and quotation marks omitted). In
this case, the fact that defendant did not actually possess the
marijuana in Mr. Wood’s van is not in dispute. As a result, the
only basis for the possession charge would be under a
constructive possession theory. However, the mere fact that
defendant was in the van where marijuana was found does not, by
itself, establish constructive possession, State v. Weems, 31
N.C. App. 569, 571, 230 S.E.2d 193, 194 (1976); the State must
provide other “incriminating circumstances,” Matias, 354 N.C. at
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552, 556 S.E.2d at 270-71, to survive defendant’s motion to
dismiss.
Here, while it is undisputed that defendant was sitting in
a van containing approximately seven pounds of marijuana when
Mr. Wood was shot, defendant was not the only person in the van
or near the van and, consequently, he did not have exclusive
control of the van. Therefore, the State was required to
provide additional incriminating circumstances establishing
constructive possession. “[C]onstructive possession depends on
the totality of circumstances in each case,” so that “[n]o
single factor controls.” State v. James, 81 N.C. App. 91, 93,
344 S.E.2d 77, 79 (1986).
Based on the evidence presented at trial, the State has
failed to do so. The State presented no evidence that defendant
and Mr. Wood had dealt drugs to each other in the past; in fact,
there was no evidence at trial that defendant was even involved
in this drug transaction or that a drug transaction was even
taking place at the time Mr. Wood was killed. The only person
with whom Mr. Wood identified that he would be meeting was Mr.
Cunningham, but the State provided no details as to whether that
meeting would involve the transfer of drugs. Additionally,
while the State’s evidence tended to show that defendant and Mr.
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Cunningham left the scene of the crime together in defendant’s
car, that fact, by itself, has no bearing on whether defendant
possessed or attempted to possess the marijuana, the underlying
felony. While it seems that this evidence would support a
theory that defendant and Mr. Cunningham acted in concert to rob
or assault Mr. Wood, the State did not proceed on this theory at
trial. Furthermore, while it is undisputed that one of the
bricks of marijuana had defendant’s fingerprint on it, that was
the only physical piece of evidence linking defendant to the
marijuana. Given that numerous other fingerprints were found on
the marijuana but only one was from defendant, this evidence is
inadequate to establish that defendant maintained any degree of
dominion or control over the marijuana. Additionally, the State
did not introduce any evidence establishing that the marijuana
was in close proximity to defendant in the van or that it was in
a place only accessible to defendant. Finally, there was no
evidence that defendant was either using the drugs in the van or
that defendant had spent any substantial amount of time in the
van prior to the shooting.
Moreover, the State failed to present sufficient evidence
that defendant possessed or attempted to possess the marijuana
while acting in concert with Mr. Cunningham. “To act in concert
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means to act together, in harmony or in conjunction one with
another pursuant to a common plan or purpose.” State v. Joyner,
297 N.C. 349, 356, 255 S.E.2d 390, 395 (1979). However, “[t]he
acting in concert theory is not generally applicable to
possession offenses, as it tends to become confused with other
theories of guilt.” State v. Diaz, 155 N.C. App. 307, 314, 575
S.E.2d 523, 528 (2002). However, when the theory is used, our
Court has noted that, while “a defendant need not do any
particular act constituting some part of the crime[,]” he must
be present at the scene of the crime and act together with
another who does the acts necessary to constitute the crime
pursuant to a common plan or purpose to commit the crime.” Id.
Consequently, here, the State would be required to show that
defendant was present at the scene of the crime and that Mr.
Cunningham committed some act necessary to constitute possession
or attempted possession or the marijuana. Again, since there
was no evidence that Mr. Cunningham actually possessed the
marijuana, the State would have to show he constructively
possessed the marijuana while defendant was present.
Even under an acting in concert theory, the State has
failed to produce sufficient evidence that defendant acted in
concert with Mr. Cunningham to possess or attempt to possess the
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marijuana. Mr. Cunningham was never in the van where the
marijuana was found. The State provided no evidence of a joint
plan between Mr. Cunningham and defendant to possess the
marijuana. In fact, besides being the shooter, the State
provided no evidence as to what exactly Mr. Cunningham’s role
was in a possible drug transaction with Mr. Wood. As stated
above, while it appears that the State could have proceeded
under the theory that defendant and Mr. Cunningham acted in
concert to either rob or assault Mr. Wood, the State based the
felony murder charge solely on the underlying felony offense of
possession or attempted possession of marijuana. While a single
fingerprint of Mr. Cunningham’s was found on one of the bricks
of marijuana, it is the sole piece of evidence linking Mr.
Cunningham to the marijuana and, without more, is insufficient
to establish that he was constructively possessing the marijuana
at the time he shot and killed Mr. Wood.
Even in totality and taken in a light most favorable to the
State, the evidence was insufficient to support the underlying
offense of possession or attempted possession of a felonious
amount of marijuana based on the theory of constructive
possession, either with defendant acting by himself or acting in
concert with Mr. Cunningham. In contrast, the evidence only
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rises to a level of suspicion and conjecture that Mr. Wood was
killed while defendant was possessing or attempting to possess
the marijuana in the van. Accordingly, since we have concluded
that the State’s evidence was insufficient to support the
commission of the underlying felony, the judgment on defendant’s
conviction for felony murder based on that underlying felony
must be vacated. See generally, State v. Ledford, 315 N.C. 599,
606, 340 S.E.2d 309, 314 (1986) (“If the evidence presented at
trial was insufficient to support a conviction of [the
underlying felony], the judgment of conviction of first-
degree felony murder based on that underlying felony cannot be
sustained.”); State v. Bates, 309 N.C. 528, 535, 308 S.E.2d 258,
263 (1983) (“Because there was insufficient evidence to support
the commission of the underlying felony, there is also
insufficient evidence to support defendant’s conviction of
felony murder.”). Since defendant’s conviction for felony
murder has been vacated, it is not necessary to address his
remaining arguments on appeal.
Conclusion
Based on the foregoing reasons, we reverse the order
denying defendant’s motion to dismiss based on insufficiency of
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the evidence and vacate defendant’s conviction for felony
murder.
REVERSED.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).