State v. Gray , 234 N.C. App. 197 ( 2014 )

NO. COA13-1081
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
STATE OF NORTH CAROLINA
v. Wake County
Nos. 12 CRS 215921, 215922
ANTONIO NEAL GRAY
Appeal by defendant from judgments entered 5 April 2013 by
Judge G. Wayne Abernathy in Wake County Superior Court. Heard
in the Court of Appeals 19 February 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Richard G. Sowerby, for the State.
McCotter Ashton, P.A., by Rudolph A. Ashton, III, for
defendant-appellant.
McCULLOUGH, Judge.
Antonio Neal Gray (“defendant”) appeals from judgments
entered upon his convictions for attempted robbery with a
dangerous weapon, conspiracy to commit robbery with a dangerous
weapon, and first degree burglary. For the following reasons,
we find no error.
I. Background
On 16 July 2012, defendant was arrested pursuant to
warrants finding probable cause to believe defendant committed
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the following offenses on 11 July 2012: two counts of attempted
robbery with a dangerous weapon, one count of conspiracy to
commit robbery with a dangerous weapon, and one count of first
degree burglary. On 11 September 2012 a Wake County Grand Jury
indicted defendant on the charges in case numbers 12 CRS 215921
and 215922. Defendant pled not guilty and his cases came on for
trial in Wake County Superior Court before the Honorable G.
Wayne Abernathy on 3 April 2013.
At trial the State’s evidence tended to show the following:
Isai Ntirenganya was a car dealer and a club promoter in
Raleigh. Through his role as a promoter, Mr. Ntirenganya met
Alneisa McKoy, who expressed interest in doing some promotion
work. On the evening of 11 July 2012, Mr. Ntirenganya met up
with Ms. McKoy and her friend, Allison Smith, at a sweepstakes
parlor and took them to his friend’s home in a trailer park off
New Bern Avenue to talk about promotion work. Mr. Ntirenganya’s
friend, Kory Clark, was the only one home at the time.
Mr. Ntirenganya and Mr. Clark both testified that they and
the two women were just hanging out, talking about promotion
opportunities, drinking, and smoking marijuana. Mr. Ntirenganya
and Mr. Clark recalled that during this time, Ms. McKoy and Ms.
Smith were on their phones texting, were giggling and whispering
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to each other, and were back and forth to the bathroom numerous
times. Mr. Clark found their behavior suspicious.
At some point, Mr. Clark left the trailer to buy beer and
cigarettes from a nearby convenience store. The women wanted to
go with Mr. Clark and leave Mr. Ntirenganya by himself, but Mr.
Clark left without them. When Mr. Clark returned several
minutes later, he locked the door behind him.
Shortly thereafter, Mr. Ntirenganya and Ms. McKoy went to a
back room in the trailer to talk. At that time, two men burst
through the door that Mr. Clark had locked upon his return from
the convenience store. Mr. Ntirenganya testified that someone
jumped on his back and they tumbled to the floor. Mr.
Ntirenganya recalled someone instructing him to “[g]et on the
ground[]” and a female screaming “[s]omebody got a gun.” The
man that jumped on Mr. Ntirenganya’s back was smaller than Mr.
Ntirenganya and Mr. Ntirenganya was able to wrestle away from
him and flee the trailer.
Mr. Clark testified that he heard the commotion and fled
the trailer through another door. Mr. Clark did not see the
intruders.
Both Mr. Ntirenganya and Mr. Clark indicated that nothing
appeared to be missing from the trailer following the attempted
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robbery. Mr. Ntirenganya’s wallet and keys, which were on top
of cabinets near the door, appeared undisturbed.
In addition to Mr. Ntirenganya and Mr. Clark, Ms. Smith and
Ms. McKoy testified at trial. Their testimony revealed that
they planned to rob Mr. Ntirenganya with James Diaz and
defendant, who they identified as the intruders. At the time,
Ms. Smith was in a relationship with Mr. Diaz and Ms. McKoy was
in a relationship with defendant. Although defendant did not
initially want to take part in the robbery, he went along with
the plan. Ms. Smith and Ms. McKoy each described the plan in
detail and testified that they were communicating with Mr. Diaz
and defendant through text messages to give directions to the
trailer, to inform them how many people were in the trailer, and
to let them know that the door to the trailer was unlocked.
These text message conversations were admitted into evidence at
trial.
At the close of the State’s evidence, defendant moved to
dismiss the charges. The trial court allowed defendant’s motion
as to count two in case number 12 CRS 215921, attempted robbery
with a dangerous weapon from the person of Mr. Clark, and denied
the motion as to the remaining charges. Defendant did not put
on any evidence and the case was given to the jury.
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On 5 April 2013, the jury returned verdicts finding
defendant guilty of attempted robbery with a dangerous weapon,
conspiracy to commit robbery with a dangerous weapon, and first
degree burglary. The trial court then entered judgments
sentencing defendant to a term of 23 to 40 months for conspiracy
to commit robbery with a dangerous weapon and a consecutive term
of 59 to 83 months imprisonment for attempted robbery with a
dangerous weapon and first degree burglary, which were
consolidated for judgment. Defendant gave notice of appeal in
open court.
II. Discussion
Defendant raises the following three issues on appeal:
whether the trial court (1) erred in denying his motion to
continue; (2) plainly erred in allowing testimony of a detective
concerning his opinions, decisions, observations, and
interpretation of text messages; and (3) erred in allowing the
State to introduce text messages from Mr. Diaz’s cell phone. We
address each issue in order.
Motion to Continue
The trial court granted defense counsel a twenty-four hour
continuance on 2 April 2013. Then, as the State prepared to
call defendant’s case for trial on 3 April 2013, defense counsel
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renewed his motion to continue asserting he needed additional
time to prepare for trial following the late receipt of a
statement by Ms. McKoy implicating Mr. Diaz as the possessor of
the gun during the attempted robbery. Specifically, defense
counsel argued he prepared for trial as if defendant possessed
the gun during the attempted robbery and he needed extra time to
prepare the defense following receipt of Ms. McKoy’s statement,
which defense counsel claimed changed the theory of the State’s
case against defendant to acting in concert.
The trial court rejected defendant’s argument and denied
the motion to continue. The trial court reasoned that Ms.
McKoy’s statement was duplicative, did not introduce any new
actors or witnesses, and did not significantly change the
State’s case against defendant. The trial court explained that,
under the law, it did not matter who possessed the gun; if one
of the perpetrators possessed a gun, all perpetrators were
guilty to the same extent. Additionally, the trial court noted
it had already granted defendant a twenty-four hour continuance.
Now on appeal, defendant contends the trial court erred in
denying his motion to continue. We disagree.
As this Court has recognized,
“Ordinarily, a motion to continue is
addressed to the discretion of the trial
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court, and absent a gross abuse of that
discretion, the trial court's ruling is not
subject to review.” State v. Taylor, 354
N.C. 28, 33, 550 S.E.2d 141, 146 (2001)
(citing State v. Searles, 304 N.C. 149, 153,
282 S.E.2d 430, 433 (1981)). “‘Continuances
are not favored and the party seeking a
continuance has the burden of showing
sufficient grounds for it. The chief
consideration is whether granting or denying
a continuance will further substantial
justice.’” In re Humphrey, 156 N.C. App.
533, 538, 577 S.E.2d 421, 425 (2003)
(quoting Doby v. Lowder, 72 N.C. App. 22,
24, 324 S.E.2d 26, 28 (1984)). “However, if
‘a motion to continue is based on a
constitutional right, then the motion
presents a question of law which is fully
reviewable on appeal.’” State v. Jones, 342
N.C. 523, 530–31, 467 S.E.2d 12, 17 (1996)
(quoting State v. Covington, 317 N.C. 127,
129, 343 S.E.2d 524, 526 (1986)).
In re D.Q.W., 167 N.C. App. 38, 40-41, 604 S.E.2d 675, 676-77
(2004).
“To establish that the trial court's failure
to give additional time to prepare
constituted a constitutional violation,
defendant must show ‘how his case would have
been better prepared had the continuance
been granted or that he was materially
prejudiced by the denial of his motion.’
‘[A] motion for a continuance should be
supported by an affidavit showing sufficient
grounds for the continuance.’ ‘“[A]
postponement is proper if there is a belief
that material evidence will come to light
and such belief is reasonably grounded on
known facts.”’”
Id. at 41, 604 S.E.2d at 677 (quoting State v. McCullers, 341
N.C. 19, 31–32, 460 S.E.2d 163, 170 (1995) (quoting State v.
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Covington, 317 N.C. 127, 130, 343 S.E.2d 524, 526 (1986); State
v. Kuplen, 316 N.C. 387, 403, 343 S.E.2d 793, 802 (1986); and
State v. Tolley, 290 N.C. 349, 357, 226 S.E.2d 353, 362 (1976)
(other citation omitted))).
In support of his argument that the trial court erred,
defendant cites two cases, State v. Smith, 178 N.C. App. 134,
631 S.E.2d 34 (2006) and State v. Pickard, 107 N.C. App. 94, 418
S.E.2d 690 (1992), in which trial courts denied the respective
defendants’ motions for continuances. This Court subsequently
affirmed the trial courts’ decisions in both of those cases.
Smith, 178 N.C. App. at 142-44, 631 S.E.2d at 39-41; Pickard,
107 N.C. App. at 100-01, 418 S.E.2d at 693-94. Defendant then
argues a different result is warranted in this case because it
is distinguishable from Smith and Pickard. Specifically,
defendant repeats the argument made before the trial court that,
while Ms. McKoy’s statement is less inculpatory of defendant,
the statement was prejudicial to defendant because it changed
the theory of the case against him at the eleventh hour.
Although the present case may be distinguished from Smith
and Pickard, we are not convinced that the trial court erred in
denying defendant’s motion to continue. We agree with the trial
court that Ms. McKoy’s statement did not significantly change
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the case to defendant’s prejudice so as to require additional
time to prepare for trial beyond the twenty-four hour
continuance already granted by the trial court. Thus, we hold
the trial court did not abuse its discretion in denying
defendant’s motion to continue.
To the extent defendant argues the denial violated his
constitutional rights, defendant was not prejudiced. As argued
by the State, there is nothing in the record tending to show
that the State implied it was proceeding to trial solely on the
theory that defendant possessed the gun. In fact, defense
counsel should not have been surprised by Ms. McKoy’s statement.
During defendant’s bond hearing on 11 February 2013, months
before trial, the State summarized the evidence against
defendant. In that summary, the State indicated that Mr. Diaz
possessed the gun during the attempted robbery. Defense counsel
was present at the hearing.
Moreover, there was contradictory testimony elicited by the
State at trial from which the jury could have determined
defendant possessed the gun during the attempted robbery. Ms.
Smith testified that defendant possessed the gun while Ms. McKoy
testified that Mr. Diaz entered the trailer with the gun.
Opinion Testimony
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At trial, the State called Detective Snowden of the Raleigh
Police Department to testify. The State then questioned
Detective Snowden about text messages between the perpetrators
on the night of the attempted robbery. Detective Snowden
testified about three separate text message conversations: a
conversation between Ms. McKoy and defendant, a conversation
between Mr. Diaz and Ms. Smith, and a conversation between Mr.
Diaz and Ms. McKoy.
When questioned about the text messages between Ms. McKoy
and defendant, Detective Snowden stated “it was clear . . . that
[Ms. McKoy] had assisted [defendant] with the plan and execution
of the attempted robbery. And it looked like directions were
given to [defendant’s] cell phone and allowing access to the
residence.” Detective Snowden also testified that the address
provided to defendant by Ms. McKoy in the text messages
corresponded to the trailer where the attempted robbery took
place and it appeared defendant was asking Ms. McKoy if the door
to the trailer was open. When questioned about his observations
of the text messages between Mr. Diaz and Ms. Smith, Detective
Snowden responded that they appeared to illustrate “the actual
time line [sic] of the attempted robbery, along with, [he]
guess[ed], the escape of Ms. Smith.” Detective Snowden stated
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“[i]t was clear that [Ms. Smith] had helped her boyfriend, Mr.
Diaz, plan and execute the attempted robbery.” Detective
Snowden further indicated that defendant’s and Ms. McKoy’s
nicknames appeared in the text message conversation. When
questioned about his observations of the third text message
conversation between Ms. McKoy and Mr. Diaz, Detective Snowden
stated, “it appeared that directions were being given, the doors
were being asked to be unlocked, and then it seemed like they
were trying to find Ms. Smith.”
Detective Snowden then described his overall impression
from the text messages as follows:
Just looking at the text messages, again,
like I said, it kind of gave a good timeline
of what had occurred, that a robbery was
being planned with Mr. Diaz and [defendant]
involved, and that the girls were part of
that robbery, and they were supposed to open
a door. They were telling them how much
money was there, how many people -- or how
many victims might be there.
Just -- all together, it just -- it kind of
put everything in place as far as a robbery
was going to be done, but, as described by
the victims, it was botched, and nothing was
gotten. And it seemed like, once Ms. Smith
got lost, it also showed you they were
trying to find her, you know, and direct her
how to get to a certain spot to be picked
up.
Defendant did not object to Detective Snowden’s testimony
at trial. Yet, now on appeal, defendant contends the trial
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court plainly erred in allowing Detective Snowden to testify
regarding his opinions and observations of the text messages.
We disagree.
“In criminal cases, an issue that was not preserved by
objection noted at trial and that is not deemed preserved by
rule or law without any such action nevertheless may be made the
basis of an issue presented on appeal when the judicial action
questioned is specifically and distinctly contended to amount to
plain error.” N.C. R. App. P. 10(a)(4) (2014).
For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. 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.
Moreover, because plain error is to be
applied cautiously and only in the
exceptional case, the error will often be
one that seriously affect[s] the fairness,
integrity or public reputation of judicial
proceedings[.]
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)
(citations and quotation marks omitted).
Regardless of whether or not the admission of Detective
Snowden’s testimony concerning his opinion and observations from
the text messages was error, given the overwhelming and
uncontroverted evidence of defendant’s guilt in the record, the
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alleged error does not amount to plain error requiring a new
trial.
Text Messages
As referenced, at trial, the State introduced photographs
of text messages between Mr. Diaz and Ms. Smith and between Mr.
Diaz and Ms. McKoy that were found on Mr. Diaz’s cell phone
following his arrest. Defendant did not initially object to the
admission of the photographs of the text messages and they were
admitted into evidence as the State’s exhibits ten and twelve.
At the request of the State, Detective Snowden read the text
messages photographed in exhibit ten aloud in open court.
Defendant did not object. However, immediately after exhibit
twelve was admitted and the State requested that Detective
Snowden read the photographed text messages between Mr. Diaz and
Ms. McKoy in open court, defense counsel asked to be heard and
objected to the admission of exhibit twelve based on lack of
authentication. After hearing arguments, the trial court
overruled defendant’s objection.
Defendant now contends the trial court erred in allowing
the photographs of the text messages between Mr. Diaz and the
two women to be admitted into evidence.
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At the outset, we note defendant’s objection was untimely
as to the admission of exhibit ten. Therefore, defendant has
not preserved the issue for appeal. See N.C. R. App. P.
10(a)(1) (2014) (“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 the party desired the court to make if the specific
grounds were not apparent from the context.”). Nevertheless,
the following analysis for exhibit twelve applies equally to
exhibit ten.
In support of his argument that there was inadequate
authentication, defendant cites State v. Taylor, 178 N.C. App.
395, 632 S.E.2d 218 (2006). In Taylor, the State sought to
admit printouts or transcripts of text messages sent to and from
the victim’s cell phone. Id. at 412, 632 S.E.2d at 230. In
order to authenticate the text messages, the State called
employees of the cell phone company to testify concerning how
the company kept records of its customers’ text messages and how
they are retrieved. Id. at 413, 632 S.E.2d at 230. This court
held the combination of the employee’s testimony and the
circumstantial evidence within the text messages was sufficient
to authenticate the evidence. Id.-15-
Defendant now argues the same type of testimony was needed
in this case to authenticate the photographs of the text
messages admitted as exhibit twelve. We disagree.
The North Carolina Rules of Evidence provide that “[t]he
requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient
to support a finding that the matter in question is what its
proponent claims.” N.C. Gen. Stat. § 8C-1, Rule 901(a) (2013).
The rule further provides a nonexclusive list of ways to
authenticate evidence, including “testimony of a witness with
knowledge ‘that a matter is what it is claimed to be.’” Taylor,
178 N.C. App. at 413, 632 S.E.2d at 230 (quoting N.C. Gen. Stat.
§ 8C-1, Rule 901(b)(1)).
In this case, Detective Snowden testified that he took
pictures of text messages on Mr. Diaz’s cell phone while
searching the phone incident to Mr. Diaz’s arrest. Detective
Snowden then identified the photographs in exhibit twelve as
screen shots of Mr. Diaz’s cell phone and testified that they
were in substantially the same condition as when he obtained
them. Ms. McKoy, with whom Mr. Diaz was communicating in the
text messages, also testified to the authenticity of exhibit
twelve. Specifically, Ms. McKoy testified that she, Mr. Diaz,
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Ms. Smith, and defendant had planned to rob Mr. Ntirenganya.
The plan was that she and Ms. Smith would meet up with Mr.
Ntirenganya and communicate with Mr. Diaz and defendant through
text messages to let them know what was going on. Ms. McKoy
testified that she sent text messages to Mr. Diaz and defendant
telling them where the trailer was located, how many people were
in the trailer, and that the door was open. Ms. McKoy then
identified exhibit twelve as the text message conversation
between her and Mr. Diaz. Ms. McKoy further stated exhibit
twelve was an accurate representation of her text message
conversation with Mr. Diaz.
We hold the testimony in this case by Detective Snowden,
who recovered the text messages from Mr. Diaz’s cell phone, and
Ms. McKoy, with whom Mr. Diaz was communicating in the text
messages illustrated in exhibit twelve, was sufficient to
authenticate exhibit twelve. Thus, the trial court did not err
in admitting the photographs into evidence.
III. Conclusion
For the reasons discussed above, the trial court did not
error in denying defendant’s motion to continue or in allowing
the photographs of the text messages into evidence at trial.
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Additionally, the trial court did not plainly error in allowing
the testimony of Detective Snowden.
No Error.
Judges HUNTER, Robert C., and GEER concur.