State v. West ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal autho rity. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .
NO. COA13-1399
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
STATE OF NORTH CAROLINA
v. Pasquotank County
Nos. 10 CRS 001724-25, 051007
ANTONIO EDWARD WEST,
Defendant.
Appeal by defendant from judgments entered 19 March 2013 by
Judge Wayland J. Sermons in Pasquotank County Superior Court.
Heard in the Court of Appeals 5 May 2014.
Roy Cooper, Attorney General, by Danielle Marquis Elder,
Special Deputy Attorney General, for the State.
John R. Mills, for defendant-appellant.
MARTIN, Chief Judge.
Defendant Antonio Edward West appeals from judgments
entered upon jury verdicts finding him guilty of first-degree
murder, attempted murder, assault with a deadly weapon with
intent to kill inflicting serious injury, and possession of a
stolen firearm. We find no error in defendant’s trial.
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On 12 June 2010, Dejuan1 Brown was shot and killed after
shots were fired into a crowd at a high school graduation party.
Earlier that day, defendant and his friends arrived at the party
uninvited and were asked to leave. Defendant and his friends
left, but returned to the party later that evening. Around
11:00 p.m., a dispute arose outside the party. As the dispute
escalated, a large crowd of people gathered. Shortly
thereafter, shots were fired. Witnesses saw defendant firing
shots into the crowd. Shamon Green testified that defendant
pointed his gun directly at him. Green then took off running
and was shot in the wrist. When Green looked back to where he
had been previously standing, he saw Brown laying on the ground.
Brown died from a single gunshot wound to his head.
After fleeing from the scene, defendant flagged down Brian
Johnson and asked him for a ride to the hospital because his
friend had been shot and injured. Johnson drove defendant and
his friend to the hospital and parked outside the emergency room
entrance. Security surveillance cameras outside the hospital
recorded defendant helping his friend into the hospital. Less
than two minutes later, defendant returned to the car. Johnson
then drove around to the side of the hospital where he parked
1
The record variably refers to the victim as “Daquan” and
“Dejuan.” For consistency with the transcript, we refer to the
victim as “Dejuan” Brown.
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and got out to urinate by the side of the car. There were no
surveillance cameras located where Johnson parked the car, but
he noticed defendant step out of the car and dispose of a
balled-up shirt in a dumpster. Johnson later showed police
where defendant had thrown away the shirt.
Police searched a vat of used cooking oil outside the
hospital kitchen and located two weapons, a .380 caliber Cobra
handgun and a .380 caliber Hi-Point handgun, wrapped inside a
shirt. The guns and bullets found inside each were sent to the
State Bureau of Investigation (“S.B.I.”) for analysis. In
addition, the .380 caliber bullet recovered from Brown’s head
during autopsy as well as several shell casings, including shell
casings from a .380 caliber weapon that were found near where
Brown was shot, were also submitted to the S.B.I.
The State also presented evidence tracing the purchase of
the .380 caliber Cobra handgun to Emanuel Jinks. The parties
stipulated that the gun was stolen from Jinks in 2009 by a man
who was incarcerated at the time of the shooting. A pawn shop
manager and firearms dealer testified that defendant placed a
special order for a .380 caliber Cobra magazine on 7 June 2010
and the store’s records confirmed that defendant picked up the
magazine on 10 June 2010.
S.B.I. Special Agent Jessica Pappas was tendered as an
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expert witness in forensic firearms identification. Prior to
trial, defendant moved in limine to exclude Agent Pappas’s
expert testimony. The trial court denied the motion but further
ruled as follows:
The Court, however, is going to limit the
opinion of the expert to not allow the
expert to testify that a match may be done
to the exclusion of all other guns in the
universe. The expert may testify, as was
stated by the expert on the stand during
this voir dire, that a bullet came from a
particular gun to within a reasonable degree
of certainty in the firearms examination
field and any other language that describes
what that field is, and what the reasonable
degree of certainty is. I’m just not going
to allow her to say that it is to the
exclusion of all other guns in the universe.
And that will be my ruling in this matter.
Agent Pappas testified that she examined the .380 caliber Cobra
and the .380 caliber Hi-Point handguns retrieved from the oil
vat outside the hospital, the bullet recovered from Brown’s
head, and the shell casings collected from the scene of the
shooting. Based on her analysis, Agent Pappas opined that the
.380 caliber bullet recovered from Brown’s head as well as a
.380 caliber shell casing found near where Brown was shot were
fired from the .380 caliber Cobra handgun.
At the close of the State’s evidence, defendant moved to
dismiss the charge of possession of a stolen firearm, arguing
that the evidence was insufficient to establish defendant knew
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or had reason to know that the firearm was stolen. The trial
court denied the motion. The jury found defendant guilty of all
charges. Defendant appeals.
_________________________
On appeal, defendant argues the trial court erred by: (I)
admitting Agent Pappas’s expert testimony, and (II) denying
defendant’s motion to dismiss the charge of possession of a
stolen firearm because the evidence was insufficient to
establish that defendant knew or had reason to know that the gun
was stolen.
I.
Defendant first argues the trial court erred by admitting
Agent Pappas’s firearm toolmark identification testimony.
Specifically, defendant claims Agent Pappas’s testimony, which
violated the trial court’s prior ruling, was unreliable and its
admission violated defendant’s constitutional right to be tried
based on reliable evidence. We disagree.
Contrary to defendant’s assertion, Agent Pappas’s testimony
did not violate the trial court’s ruling limiting her testimony.
After voir dire examination of Agent Pappas, the court found the
expert testimony reliable and denied defendant’s motion in
limine to exclude the testimony. The court’s ruling only
limited Agent Pappas from testifying that a bullet was fired
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from a particular gun to the exclusion of all others. Our
review of the record reveals that Agent Pappas opined, based on
her analysis, that the bullet recovered from Brown’s head and a
shell casing retrieved from the scene of the shooting were fired
from the .380 caliber Cobra handgun. Agent Pappas did not
testify, as defendant contends, that “[defendant’s] gun was the
only gun in the world that could have been the source of the
bullet and casing.” Agent Pappas’s testimony, therefore, did
not violate the trial court’s narrow limitation on the
testimony.
A trial court’s decision to allow expert testimony will not
be reversed on appeal absent an abuse of discretion. State v.
Morgan, 359 N.C. 131, 160, 604 S.E.2d 886, 904 (2004), cert.
denied, 546 U.S. 830, 163 L. Ed. 2d 79 (2005).
To determine if proffered expert testimony
is admissible under North Carolina Rule of
Evidence 702, a trial court must conduct a
three-step inquiry to ascertain whether:
(1) the expert’s method of proof is
reliable; (2) the witness presenting the
evidence qualifies as an expert; and (3) the
evidence is relevant.
State v. Britt, 217 N.C. App. 309, 313–14, 718 S.E.2d 725, 729
(2011). Here, defendant only challenges the reliability of
Agent Pappas’s testimony.
A trial court should first look to precedent for guidance
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in determining whether the method of proof underlying an
expert’s opinion is reliable. Howerton v. Arai Helmet, Ltd.,
358 N.C. 440, 459, 597 S.E.2d 674, 687 (2004). Once the trial
court determines the expert’s method of proof is reliable, “any
lingering questions or controversy concerning the quality of the
expert’s conclusions go to the weight of the testimony rather
than its admissibility.” Id. at 461, 597 S.E.2d at 688. It is
well settled that firearm toolmark identification is recognized
as a reliable method of proof as “[c]ourts in North Carolina
have upheld the admission of expert testimony on firearm
toolmark identification for decades.” Britt, 217 N.C. App. at
314, 718 S.E.2d at 729.
Defendant concedes the reliability of firearm toolmark
identification. Nonetheless, defendant claims Agent Pappas’s
testimony was unreliable because firearm toolmark identification
does not support her “conclusion that only [defendant’s] gun
could have fired the bullet recovered from [Brown’s] brain.” We
are unpersuaded by this contention. As we previously stated,
Agent Pappas did not testify that only defendant’s gun could
have fired the lethal bullet. Because precedent recognizes the
reliability of firearm toolmark identification, defendant’s
argument as to Agent Pappas’s conclusions goes to the weight of
the testimony and not its admissibility. We therefore conclude
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that the trial court properly followed precedent and did not
abuse its discretion in admitting the expert testimony. This
disposition renders our consideration of defendant’s remaining
argument regarding the admission of the expert testimony
unnecessary.
II.
Defendant next contends the evidence presented was
insufficient to support a conviction for possession of a stolen
firearm because defendant purchased the gun from a firearms
dealer shortly before the shooting and his disposal of the gun
immediately after the shooting was insufficient evidence to
establish that he knew or had reason to know that the gun was
stolen. The State points out that the evidence showed that
defendant purchased a magazine, not the gun, days before the
shooting and asserts that defendant’s argument is foreclosed by
well-established precedent. In response, defendant concedes his
factual error and further concedes that under the authority of
State v. Wilson, 203 N.C. App. 547, 691 S.E.2d 734 (2010), the
evidence was sufficient to establish defendant’s guilty
knowledge. We agree.
To convict a defendant of possession of a stolen firearm,
“the State must present substantial evidence that (1) the
defendant was in possession of a firearm; (2) which had been
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stolen; (3) the defendant knew or had reasonable grounds to
believe the property was stolen; and (4) the defendant possessed
the pistol with a dishonest purpose.” State v. Brown, 182 N.C.
App. 277, 281, 641 S.E.2d 850, 853 (2007). “‘Other cases
upholding convictions when knowledge was at issue have contained
some evidence of incriminating behavior on the part of the
accused.’” Wilson, 203 N.C. at 554, 691 S.E.2d at 739 (quoting
State v. Allen, 79 N.C. App. 280, 285, 339 S.E.2d 76, 79, aff'd
per curiam, 317 N.C. 329, 344 S.E.2d 789 (1986)). “[G]uilty
knowledge can be inferred from defendant’s throwing away [of]
the stolen weapon, despite an intervening crime committed by
defendant with the weapon.” Id. at 554, 691 S.E.2d at 740.
Here, the State’s evidence showed that defendant fled from
the scene of the shooting and disposed of the gun by wrapping it
in the shirt he was wearing during the shooting and throwing it
in an oil vat outside the hospital. This evidence is
sufficiently incriminating to permit a reasonable inference that
defendant knew or had reason to know that the gun was stolen.
See State v. Taylor, 64 N.C. App. 165, 169, 307 S.E.2d 173, 176
(1983) (concluding that evidence that the defendant removed a
firearm from his coat and threw it into nearby bushes was
“sufficiently incriminating to permit a reasonable inference
that defendant knew or must have known that the firearm was
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stolen, and thus sufficient to support a finding to that effect
by the jury”), aff’d in part and rev’d in part on other grounds,
311 N.C. 380, 317 S.E.2d 369 (1984). We therefore find no error
in defendant’s conviction for possession of a stolen firearm.
No Error.
Judges STEELMAN and DILLON concur.
Report per Rule 30(e).