State v. Glover ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1079
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Forsyth County
No. 12 CRS 60503
DAMEON JOSE GLOVER
Appeal by defendant from judgment entered 9 April 2013 by
Judge L. Todd Burke in Forsyth County Superior Court. Heard in
the Court of Appeals on 31 March 2014.
Roy Cooper, Attorney General, by Janelle E. Varley,
Assistant Attorney General for the State.
J. Edward Yeager, Jr. for defendant-appellant.
DAVIS, Judge.
Dameon Jose Glover (“Defendant”) appeals from a judgment
entered upon a jury verdict finding him guilty of assault
inflicting serious bodily injury. On appeal, he argues that (1)
the trial court abused its discretion by denying his pre-trial
discovery motion; and (2) the trial court erred in finding that
his federal conviction of bank robbery was substantially similar
-2-
to the North Carolina crime of common law robbery. After
careful review, we affirm.
Factual Background
The State presented evidence at trial tending to establish
the following facts: On 5 October 2013, at approximately 1:36
a.m., Defendant entered the West End Opera House, a bar in
Winston-Salem, North Carolina, with his friend, Torian Williams
(“Mr. Williams”) and sat next to a billiards table. Another
patron, Derek Pasko (“Mr. Pasko”), walked over to Defendant, and
they engaged in conversation. The conversation soon escalated
into an argument. The bar manager asked: “[I]s everything all
right?” Mr. Williams responded: “[I]t’s cool.”
Mr. Pasko then exited through the rear door of the bar and
encountered a friend, Michael Thompson (“Mr. Thompson”), in the
parking lot behind the bar. Defendant and Mr. Williams followed
Mr. Pasko outside. As Mr. Pasko and Mr. Williams exchanged
words, Defendant approached Mr. Pasko and landed a punch to Mr.
Pasko’s face. Mr. Pasko collapsed to the ground. Mr. Thompson
then ran into the bar to get help and an ambulance was called.
Defendant followed Mr. Thompson back to the bar but did not
enter. Instead, Mr. Williams picked up Defendant in a car and
drove away from the scene.
-3-
On 16 October 2012, a warrant was issued, and Defendant was
arrested at his residence by Officer Aaron Jessup (“Officer
Jessup”). Officer Jessup transported Defendant to the law
enforcement detention center located at the Forsyth County Jail.
Once at the jail, Defendant was issued a Miranda warning, which
he acknowledged receiving. Officer Jessup testified at trial
that Defendant stated that he had been approached by a “white
male . . . [who] was aggressive and had words with his friend
[Mr. Williams and] at one point . . . slapped his friend [Mr.
Williams] on the buttocks inside the business where they were
playing pool . . . they had words, and they went outside the
business, and that is where [Defendant] said the altercation
began.” Officer Jessup also testified that Defendant stated
“that he struck the white male in self-defense.”
The West End Opera House is equipped with a 15 camera video
surveillance system that records 24 hours a day without audio.
Two police officers reviewed the videos recorded by the
surveillance system on the night of the incident along with the
owner and manager of the bar. The bar owner provided the police
officers with two recorded compact discs that included all the
footage of Defendant on 5 October 2012 from the time he entered
the bar at approximately 1:36 a.m. until the time he drove away
-4-
at approximately 2:30 a.m. The State then provided the two
videos to Defendant on 12 December 2012.
Defendant requested additional discovery on 15 January
2013, specifically asking for “the video surveillance from the
surveillance camera . . . focused on the front entrance of the
West End Opera House.” The State responded that Officer
Griffith – the police department’s case manager – had “no
knowledge of any video being in the possession of the Winston-
Salem Police Department that would have come from any
surveillance camera located at the front of the West End Opera
House.”
On 26 November 2012, Defendant was indicted by the Forsyth
County grand jury on the charge of assaulting Mr. Pasko and
inflicting “serious bodily injury” causing a skull fracture, eye
socket fracture, and multiple facial fractures.
On 3 April 2013, Defendant filed a pre-trial motion asking
for “access to the remaining video surveillance not previously
provided by the State,” and “[i]n the event that said video
surveillance [has] been destroyed or is otherwise unavailable,
then an Order should be entered by the Court preventing the
State be barred [sic] from playing its video during a trial of
this matter.” Defense counsel noted that there had been a
-5-
confrontation outside the bar and “words were exchanged just
outside the front door of the Opera House.” For this reason,
defense counsel explained she sought access to any video
surveillance recorded from a camera located above the front
door. The State responded that any other existing surveillance
videos had never been in the State’s possession and that the two
videos that the State did possess had been provided to
Defendant’s counsel and were going to be introduced as evidence.
The trial court ruled that the State would be permitted to
introduce the two videos and denied Defendant’s motion.
A jury trial was held beginning on 8 April 2013. On 9 April
2013, Defendant was found guilty of assault inflicting serious
bodily injury and was sentenced to 25-39 months. Defendant gave
notice of appeal in open court.
Analysis
I. Denial of Pre-Trial Discovery Motion
Defendant argues the trial court abused its discretion in
denying Defendant’s motion seeking access to the remaining video
surveillance not previously provided by the State, alleging the
State was allowed to “introduce incomplete evidence in the form
of partial video recordings which did not record the entire
encounter between Defendant and Mr. Pasko.” We disagree.
-6-
Discovery in criminal superior court cases is governed by
Chapter 15A, Article 48 of the North Carolina General Statutes.
Section 15A-903 specifically governs disclosure of evidence by
the State and provides in pertinent part:
(a) Upon motion of the defendant, the court
must order:
(1) The State to make available to the
defendant the complete files of all law
enforcement agencies, investigatory
agencies, and prosecutors’ offices involved
in the investigation of the crimes committed
or the prosecution of the defendant.
a. The term “file” includes the
defendant’s statements, the codefendants’
statements, witness statements,
investigating officers’ notes, results of
tests and examinations, or any other matter
or evidence obtained during the
investigation of the offenses alleged to
have been committed by the defendant. . . .
. . . .
d. The defendant shall have the right
to inspect and copy or photograph any
materials contained therein and, under
appropriate safeguards, to inspect, examine,
and test any physical evidence or sample
contained therein.
N.C. Gen. Stat. § 15A-903(a)(1)(a),(d) (2013).
“If a trial court determines that the State has violated
statutory discovery provisions or a discovery order, it may
impose a wide array of sanctions including dismissal of the
-7-
charge with or without prejudice.” State v. Dorman, ___ N.C.
App. ___, ___, 737 S.E.2d 452, 470 (citing N.C. Gen. Stat. §
15A-910(a)(3b)), appeal dismissed and disc. review denied, ___
N.C. ___, 743 S.E.2d 205 (2013). “On appeal, we review the
trial court’s decision to impose discovery sanctions for an
abuse of discretion.” Id. “The trial court may be reversed for
an abuse of discretion in [addressing alleged discovery
violations] only upon a showing that its ruling was so arbitrary
that it could not have been the result of a reasoned decision.”
State v. Carson, 320 N.C. 328, 336, 357 S.E.2d 662, 667 (1987)
(citation omitted).
Here, Defendant sought an order from the trial court
compelling the State to give him access to video surveillance
from all of the video cameras at the bar, particularly the video
from the camera at the front door. However, the State only
collected video surveillance from two of the fifteen cameras and
did not collect the video from the front door camera. As the
State was never in possession of the video surveillance
requested by Defendant, we hold that the trial court did not
abuse its discretion in denying Defendant’s discovery motion.
See State v. Morris, 156 N.C. App. 335, 341, 576 S.E.2d 391,
395, (stating that, under prior version of N.C. Gen. Stat. §
-8-
15A-903, defendant was not entitled to discovery of requested
materials because State never possessed or controlled them or
intended to use them as evidence against defendant) cert.
denied, 357 N.C. 510, 588 S.E.2d 379 (2003); cf. State v. Lynn,
157 N.C. App. 217, 221-22, 578 S.E.2d 628, 632 (2003) (holding
in context of Brady analysis that “[t]he State . . . is under a
duty to disclose only those matters in its possession and is not
required to conduct an independent investigation to locate
evidence favorable to a defendant” (citation and quotation marks
omitted)).
II. Similarity Between Defendant’s Prior Federal Conviction and
His North Carolina Common Law Robbery Conviction
Defendant also argues the trial court erred in calculating
his prior record level because it erroneously concluded that his
federal conviction for bank robbery was substantially similar to
North Carolina’s offense of common law robbery. Defendant
contends the State provided no evidence as to the nature of the
bank robbery and thus did not show that his actions on that
prior occasion were substantially similar to the acts that
constitute common law robbery in North Carolina. Defendant’s
arguments are misplaced.
“The prior record level of a felony offender is determined
by calculating the sum of the points assigned to each of the
-9-
offender’s prior convictions . . . .” N.C. Gen. Stat. § 15A-
1340.14(a) (2013).
If the State proves by the preponderance of
the evidence that an offense classified as
either a misdemeanor or a felony in the
other jurisdiction is substantially similar
to an offense in North Carolina that is
classified as a Class I felony or higher,
the conviction is treated as that class of
felony for assigning prior record level
points.
N.C. Gen. Stat. § 15A-1340.14(e) (2013).
“[T]he question of whether a conviction under an out-of-
state statute is substantially similar to an offense under North
Carolina statutes is a question of law requiring de novo review
on appeal.” State v. Fortney, 201 N.C. App. 662, 669, 687
S.E.2d 518, 524 (2010) (citation and internal quotation marks
omitted). In determining “whether the out-of-state conviction
is substantially similar to a North Carolina offense,” the trial
court must compare “the elements of the out-of-state offense to
those of the North Carolina offense.” Id. at 671, 687 S.E.2d at
525 (emphasis added and citation omitted). Because the focus of
the “substantially similar” test is on the elements of the
offenses, and not the facts of the specific crimes, Defendant’s
contention that the State failed to provide evidence of the
-10-
specific factual nature of the prior bank robbery is without
merit.
Turning to the elements of each offense, we conclude the
trial court did not err in concluding the offenses are
substantially similar. The elements of common law robbery are
“the felonious, non-consensual taking of money or personal
property from the person or presence of another by means of
violence or fear.” State v. Smith, 305 N.C. 691, 700, 292
S.E.2d 264, 270, cert. denied, 459 U.S. 1056, 74 L.Ed.2d 622(1982). The “violence or fear” necessary to accomplish the
taking for purpose of common law robbery has been repeatedly
held to include intimidation. See State v. Sipes, 233 N.C. 633,
635, 65 S.E.2d 127, 128 (1951) (defining common law robbery as
“the felonious taking of personal property from the person of
another, or in his presence, without his consent, or against his
will, by violence, intimidation or putting in fear” (emphasis
added)); cf. State v. McDonald, 130 N.C. App. 263, 267, 502
S.E.2d 409, 412 (1998) (holding “fear or intimidation is a
material fact in issue regarding the offense of armed robbery”
(emphasis added)). Here, Defendant does not challenge the
State’s assertion that he was convicted of the federal offense
of bank robbery pursuant to 18 U.S.C. § 2113(a), which punishes:
-11-
[w]hoever, by force and violence, or by
intimidation, takes, or attempts to take,
from the person or presence of another, or
obtains or attempts to obtain by extortion
any property or money or any other thing of
value belonging to, or in the care, custody,
control, management, or possession of, any
bank, credit union, or any savings and loan
association[.]
Id.Thus, both offenses require the taking of property by
either force, violence, fear or intimidation. The major
difference between the two crimes is that the North Carolina
offense applies to all victims, whereas the federal offense is
limited to victims who are banks, credit unions or savings and
loan associations.1 Accordingly, we conclude these offenses are
“substantially similar” to each other for purposes of N.C. Gen.
Stat. § 15A-1340.14(e) and that the trial court did not err in
calculating Defendant’s prior record level.
Conclusion
For the reasons stated above, we affirm.
AFFIRMED.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).
1
Defendant does not raise this distinction in support of his
argument on this issue.