State v. Grady ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-1025
Filed: 1 December 2020
New Hanover County, Nos. 17 CRS 58737, 18 CRS 52053–54
STATE OF NORTH CAROLINA
v.
ADELL GRADY
Appeal by defendant from judgments entered 7 March 2019 by Judge John E.
Nobles Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 8
September 2020.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Colleen
M. Crowley, for the State.
Dunn, Pittman, Skinner & Cushman, PLLC, by Rudolph A. Ashton, III, for
defendant.
DIETZ, Judge.
Defendant Adell Grady appeals his convictions for felony breaking and
entering, felony larceny, and possession of a firearm by a felon. He argues that the
trial court erred by admitting the State’s evidence that he committed another similar
breaking and entering. Grady also argues that an officer’s testimony about that other
break-in involved inadmissible hearsay. Finally, Grady argues that there was
insufficient evidence that he stole any guns during the break-in and thus the charge
of possession of a firearm by a felon should have been dismissed.
STATE V. GRADY
Opinion of the Court
We reject these arguments. The evidence of the other break-in, which took
place on a neighboring street, at around the same time, on the same day, by someone
with the same general features and dressed in the same clothes as the perpetrator of
the charged offenses, was properly admitted under Rule 404(b) for various reasons
other than solely to show Grady’s propensity to commit those offenses.
Likewise, the officer’s description of what the victim of that other break-in told
him, just minutes after that break-in occurred, was admissible as a present sense
impression. Finally, the State’s evidence was sufficient to overcome a motion to
dismiss the charge of possession of a firearm by a felon, even without any direct
evidence that Grady stole the guns, based on the evidence that those guns were
present in a locked house before the break-in, that they were missing afterward, and
that Grady was the perpetrator of the break-in. We therefore find no error in the trial
court’s judgments.
Facts and Procedural History
In 2018, Officer Jesse Moore with the Wilmington Police Department
responded to a report of a breaking and entering at a home on Fowler Street. When
Moore arrived, he observed that the front door was kicked in. The resident of the
home, Jason Gray, was not there.
Gray’s next-door neighbors, the Overbys, had called 911. They were waiting
outside for police to arrive. Ms. Overby reported that her husband had been across
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the street feeding a neighbor’s dog that morning when she heard a loud noise, looked
outside, and saw a man walk across the corner of their driveway from the direction
of Gray’s house, and then walk east on Fowler Street toward a nearby apartment
complex. Ms. Overby described the man as African-American, wearing a red and
black hoodie, and carrying a Game Stop bag. Shortly after, Ms. Overby saw a gold car
drive by several times making a loud noise.
As Mr. Overby was walking back from the neighbor’s house, the gold car, a
Dodge Neon, stopped in front of the Overbys’ house. The driver asked Mr. Overby for
directions. Mr. Overby described the driver as a black man with grayish hair and
beard, probably in his 40s or 50s, and wearing a red and black hoodie. After the man
drove off, Mr. Overby went to check on Gray’s house, saw that the front door was
kicked open, and told Ms. Overby to call the police.
Ms. Overby later checked their security system video footage, where she again
saw the man with the red and black hoodie. The video captured the man walking next
door toward Gray’s home with nothing in his hands and then coming out across the
front of the Overbys’ house with a Game Stop bag in his hands. The Overbys testified
that they couldn’t see what was in the bag, but “you could tell by looking at it, it was
kind of – stuck out on different sides or whatever and you could tell there was weight
in the bag.” The Overbys provided their surveillance footage to Officer Moore. Ms.
Overby also viewed footage showing the man walking to the gold car parked at the
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Opinion of the Court
nearby apartment complex, getting in the car, and driving towards the Overbys’
home. The Overbys were unable to provide that portion of the footage to police due to
a system malfunction.
After Officer Moore notified Jason Gray, the home’s resident, of the break-in,
Gray returned home to find that his front door was broken open, the house had been
ransacked, and many of his belongings were missing. The missing items included
multiple electronic devices, video games and gaming consoles, and three firearms
(two handguns and a shotgun). Gray testified that he had Game Stop bags in his
residence at the time of the break-in.
On the same morning as the Fowler Street break-in, Officer William Rose
investigated a breaking and entering at a house on Dexter Street, one street over
from Fowler Street. Officer Rose arrived shortly before 10:20 a.m. As Officer Rose was
approaching the Dexter Street house, the home’s resident, James Smith, arrived and
ran towards the backyard. Officer Rose followed him. Smith identified himself as the
resident of the home and as “the person who had called 911 because of the house
being broken into.” Smith was “agitated,” “excited,” and “angry” and told Officer Rose
that his house had just been broken into.
Smith showed Officer Rose a portion of a video that was automatically sent to
his cell phone from his home’s security camera, showing that there was someone
inside the residence. The time stamp on the video was 10:17 a.m. After waiting for
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Opinion of the Court
other officers to arrive, Officer Rose entered the residence. There was property
damage to the rear door frame of the residence where the surveillance video showed
the suspect had entered. Officer Rose then asked Smith if anything was missing from
the residence, and Smith told the officer that a television was missing.
Sergeant Brian Needham later reviewed security video footage from both
Fowler Street and Dexter Street. Both videos showed a black man wearing a red and
black hooded sweatshirt. The man could be seen entering the home on Dexter Street
and carrying away a television. Upon comparing the videos, Sergeant Needham
concluded that the same individual committed both the Dexter Street and Fowler
Street break-ins. After locating the gold Dodge Neon from the Fowler Street
surveillance footage and identifying its owner, Needham went on Facebook where he
found a photo of the car’s owner with a man who closely resembled the description
given by the Overbys and the man in the security videos. Needham identified the
man as Defendant Adell Grady and found a Facebook photo from the previous month
showing Grady wearing a red and black hooded sweatshirt that was the same style
of sweatshirt worn by the suspect in the surveillance videos.
Police then located Grady and arrested him. At the time of his arrest, Grady
was wearing what officers believed to be the same red and black Nike hooded
sweatshirt shown in the surveillance videos. Grady was charged with breaking and
entering, larceny, and possession of a firearm by a felon in connection with the Fowler
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Opinion of the Court
Street break-in.
Corporal Carlos Lamberty and Detective Robert Ferencak interviewed Grady
after his arrest and showed him still shots from the surveillance videos of the break-
ins. Grady then admitted to his direct involvement in the Dexter Street break-in and
admitted to his presence on Fowler Street around the time of that break-in. He
implicated a man named Cedric Age as the perpetrator of the break-ins. Grady
admitted to driving the gold Dodge Neon in the Fowler Street video and to being in
the house on Dexter Street. He also admitted to knowing about the television taken
from the Dexter Street house, which he believed was later sold for drugs. But Grady
denied breaking into the Fowler Street house and said he had nothing to do with the
missing guns.
On 11 June 2018, Grady was indicted for felony breaking and entering, felony
larceny, injury to real property, possession of a firearm by a felon, and attaining
habitual felon status, all in connection with the Fowler Street break-in. The State did
not move forward with any charges related to the Dexter Street break-in because
James Smith, the home’s resident, later refused to cooperate with the prosecution.
On 4 March 2019, the case went to trial. Following a voir dire with the law
enforcement officers involved, the trial court admitted the State’s evidence regarding
the uncharged Dexter Street break-in under Rule 404(b) over Grady’s repeated
objections. Officers Rose, Needham, Lamberty, and Ferencak testified to the details
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of their investigation as described above. The trial court admitted Officer Rose’s
testimony about Smith’s statements to him at the scene of the Dexter Street break-
in, overruling Grady’s hearsay objection. At the close of evidence, Grady moved to
dismiss the charges and the trial court denied the motion.
On 7 March 2019, the jury convicted Grady of felony breaking and entering,
felony larceny, and possession of a firearm by a felon. Grady then admitted his status
as a habitual felon and also pleaded guilty to unrelated breaking and entering and
larceny charges. The trial court sentenced Grady as a habitual felon to 111 to 146
months in prison plus restitution of $4,854.96 for breaking and entering, and
concurrent sentences of 111 to 146 months for larceny and 120 to 156 months for
possession of firearm by a felon. Grady also received a concurrent sentence of 12 to
24 months on the charges to which he pleaded guilty. Grady appealed.
Analysis
I. Admission of Rule 404(b) evidence of Dexter Street break-in
Grady first argues that the trial court erred by admitting the State’s Rule
404(b) evidence of the uncharged breaking and entering and larceny that occurred on
Dexter Street on the same morning as the Fowler Street break-in at issue in this case.
Grady contends that the evidence was inadmissible under Rule 404(b) because it
merely “showed a propensity for him to commit the crime” and, even if it was
admissible under Rule 404(b), it should have been excluded under Rule 403 because
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its probative value was outweighed by the risk of unfair prejudice. We reject this
argument.
This Court reviews the legal conclusion that evidence is, or is not, within the
coverage of Rule 404(b) de novo. State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d
156, 159 (2012). We review the trial court’s corresponding Rule 403 determination for
abuse of discretion. Id. “A trial court may be reversed for an abuse of discretion only
upon a showing that its ruling was so arbitrary that it could not have been the result
of a reasoned decision.” State v. Cagle, 346 N.C. 497, 506–07, 488 S.E.2d 535, 542
(1997).
Under Rule 404(b), “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake, entrapment or accident.” N.C. R. Evid. 404(b). Our Supreme
Court has made clear that Rule 404(b) is a “general rule of inclusion of relevant
evidence of other crimes, wrongs or acts by a defendant, subject to but one exception
requiring its exclusion if its only probative value is to show that the defendant has
the propensity or disposition to commit an offense of the nature of the crime charged.”
State v. Coffey, 326 N.C. 268, 278–79, 389 S.E.2d 48, 54 (1990). Thus, evidence of
another offense “is admissible so long as it is relevant to any fact or issue other than
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the character of the accused.” Id. at 278, 389 S.E.2d at 54 (emphasis omitted).
Still, there are limits to the use of Rule 404(b) evidence. The “rule of inclusion
described in Coffey is constrained by the requirements of similarity and temporal
proximity.” State v. Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002).
These requirements can be satisfied where a defendant’s prior wrongful acts were
“part of the chain of events explaining the motive, preparation, planning, and
commission of the crime.” State v. Parker, 140 N.C. App. 169, 173, 539 S.E.2d 656,
660 (2000). “When the incidents are offered for a proper purpose, the ultimate test of
admissibility is whether the incidents are sufficiently similar and not so remote in
time as to be more probative than prejudicial under the balancing test” in Rule 403.
State v. Pruitt, 94 N.C. App. 261, 266, 380 S.E.2d 383, 385 (1989).
We begin by examining whether the challenged evidence was admitted solely
to show Grady had a propensity to commit the charged offenses. It was not. The
evidence of the Dexter Street break-in was offered for proper Rule 404(b) purposes.
Coffey, 326 N.C. at 278–79, 389 S.E.2d at 54; N.C. R. Evid. 404(b). Specifically, there
was evidence of a break-in on Fowler Street. There also was evidence that a person
in a red and black hoodie walked toward the Fowler Street residence around the time
of the break-in and later walked away from it carrying a bag. But there was no direct
evidence that this person in a red and black hoodie committed the Fowler Street
break-in.
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Thus, an important part of the State’s case was presenting circumstantial
evidence that this person in the red and black hoodie committed the crime. One
permissible way to establish this fact was through evidence that a person matching
that same description broke into a residence just one street over that same morning
and stole a television.
This evidence was not used to show that the person in that red and black hoodie
was Grady or that Grady was the type of person who breaks into people’s homes.
Rather, it showed that the same person likely committed both crimes because there
were two similar break-ins that took place on neighboring streets, at around the same
time, on the same day, by someone with the same general features, dressed in the
same clothes. This evidence was a natural account of a chain of similar break-ins that
occurred that day and was used to establish that the person observed by witnesses
and security cameras on Fowler Street committed the break-in. It was therefore
admissible under Rule 404(b). Parker, 140 N.C. App. at 173–74, 539 S.E.2d at 660.
We next consider whether the trial court abused its discretion by determining
that the probative value of this evidence was not substantially outweighed by any
prejudicial effect under Rule 403. Pruitt, 94 N.C. App. at 266, 380 S.E.2d at 385. In
his appellate brief, Grady argues that this evidence was “overwhelmingly prejudicial
to his defense” without explaining why.
To be fair, this evidence certainly was prejudicial to Grady’s defense in the
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sense that it was quite incriminating, but all evidence “which is probative in the
State’s case will have a prejudicial effect on the defendant.” Cagle, 346 N.C. at 506,
488 S.E.2d at 542. Rule 403 addresses unfair prejudice. Id. We see nothing in this
evidence that makes it so unfairly prejudicial that the trial court’s decision to admit
it was manifestly arbitrary and lacking in reason. Id. at 506–07, 488 S.E.2d at 542.
Accordingly, the trial court did not abuse its discretion by determining that this
evidence was admissible under Rule 403.
II. Admission of hearsay statements from the Dexter Street break-in
Grady next argues that the trial court erred by admitting hearsay testimony
from James Smith, the resident of the Dexter Street home. We also reject this
argument.
“When preserved by an objection, a trial court’s decision with regard to the
admission of evidence alleged to be hearsay is reviewed de novo.” State v. Johnson,
209 N.C. App. 682, 692, 706 S.E.2d 790, 797 (2011). “Hearsay” is defined as “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.” N.C. R. Evid.
801(c). Under the hearsay rule, “[h]earsay is not admissible except as provided by
statute or by these rules.” N.C. R. Evid. 802.
Grady challenges the portion of Officer Rose’s testimony in which the officer
described what James Smith told him when he arrived in response to Smith’s 911
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call. In his appellate brief, Grady focuses entirely on the trial court’s failure to
determine that Smith was unavailable and the court’s corresponding failure to
conduct the “six-part inquiry to ascertain whether the hearsay evidence should be
admitted” based on that unavailability.
We need not address this argument because this was not the hearsay exception
asserted by the State or embraced by the trial court below. Instead, this case concerns
the hearsay exception for present sense impressions in Rule 803. A “present sense
impression” is defined as a “statement describing or explaining an event or condition
made while the declarant was perceiving the event or condition, or immediately
thereafter.” N.C. R. Evid. 803(1).
“The basis of the present sense impression exception is that closeness in time
between the event and the declarant’s statement reduces the likelihood of deliberate
or conscious misrepresentation.” State v. Blankenship, 259 N.C. App. 102, 114, 814
S.E.2d 901, 912 (2018). “There is no rigid rule about how long is too long to be
immediately thereafter.” Id. Importantly, our Supreme Court has held statements to
a law enforcement officer by someone who witnessed a crime are admissible as
present sense impressions when the lapse in time between the witness’s perception
and their statement was solely the short amount of time it took for the witness to
arrive in the presence of the officer. See State v. Morgan, 359 N.C. 131, 155, 604
S.E.2d 886, 900–01 (2004) (collecting cases).
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Opinion of the Court
Here, law enforcement received a call reporting a break-in on Dexter Street.
Officer Rose arrived in response to that call at the same time that Smith, the resident
of the home and the person who reported the break-in, also arrived. Smith was
“agitated,” “excited,” and “angry.” He explained to Officer Rose that his home had just
been broken into and showed the officer video footage of the break-in that was
automatically sent to Smith’s cell phone through his home’s security system after the
system detected motion inside the home. Smith then examined his home and
informed Officer Rose that a television was missing.
The time stamp on the security footage from Smith’s phone was 10:17 a.m.
Both Officer Rose and Smith arrived at the Dexter Street home within minutes after
Smith viewed that footage and reported the crime.
In light of these facts, the trial court properly admitted Officer Rose’s
testimony under the present sense impression exception to the hearsay rule. Smith’s
statements were made within minutes after he first perceived the break-in through
the security footage and then contemporaneously as he perceived the situation at his
home when he arrived. These statements were “describing or explaining an event or
condition made while the declarant was perceiving the event or condition, or
immediately thereafter” and thus properly fall within the exception for present sense
impressions. Morgan, 359 N.C. at 154, 604 S.E.2d at 900.
We also note that, even if the challenged testimony—Officer Rose’s testimony
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about what Smith told him—was inadmissible hearsay, nearly all the key facts from
that testimony also were admitted through other evidence, primarily from Officer
Rose’s own observations of the scene when he arrived. That testimony, combined with
Grady’s own admissions of his involvement in the Dexter Street break-in, left no
reasonable possibility that, had this portion of Officer Rose’s testimony been excluded
as hearsay, the jury likely would have reached a different result. State v. Ferguson,
145 N.C. App. 302, 307, 549 S.E.2d 889, 893 (2001). Accordingly, even if we found
error—and we do not—any error was harmless.
III. Denial of motion to dismiss the possession of firearm charge
Finally, Grady argues that the trial court erred by denying his motion to
dismiss the possession of a firearm by a felon charge. Grady contends that “there was
no evidence whatsoever of any firearms either on or in the vicinity of” him in any
witness account or security footage.
“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 (2000). “Substantial evidence is such relevant evidence as a reasonable mind
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might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78,
265 S.E.2d 164, 169 (1980). “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).
“Circumstantial evidence may withstand a motion to dismiss and support a
conviction even when the evidence does not rule out every hypothesis of innocence. If
the evidence presented is circumstantial, the court must consider whether a
reasonable inference of defendant’s guilt may be drawn from the circumstances.”
Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citation omitted).
“The offense of possession of a firearm by a convicted felon has two essential
elements: (1) the defendant has been convicted of a felony, and (2) the defendant
subsequently possessed a firearm.” State v. Floyd, 369 N.C. 329, 333, 794 S.E.2d 460,
463 (2016). Grady challenges only the sufficiency of the evidence as to the possession
element. Possession can be shown by circumstantial evidence. State v. Marshall, 206
N.C. App. 580, 583, 696 S.E.2d 894, 897 (2010).
Here, the State’s evidence showed that Jason Gray had three guns and Game
Stop bags in his house prior to the break-in and that he locked his house when he left
home that morning. While Gray was gone, his next-door neighbor heard a loud noise
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coming from the direction of Gray’s house and then saw a man, later identified as
Grady, walking away from Gray’s house carrying a bag. The neighbor checked her
surveillance footage and saw Grady approach the home with nothing in his hands
and then leave a short time later carrying a Game Stop bag. Although no witnesses
saw what was in the Game Stop bag, Mr. Overby testified that there were “things in
that bag . . . you could tell by looking at it” because it “stuck out on different sides or
whatever and you could tell there was weight in the bag.” Shortly thereafter, the
neighbors went to check on Gray’s house, found the door was kicked in, called police,
and waited outside for them to arrive. When Gray returned home after being notified
of the break-in, he found that his three guns were missing. The neighbors did not see
anyone else around Gray’s house that day.
This evidence is readily sufficient to overcome a motion to dismiss. Viewed in
the light most favorable to the State, the evidence established that there was a break-
in at the Fowler Street house, that the only way the guns could have gone missing
from the house were as a result of that break-in, and that Grady was the one who
broke into the house. From this, the jury reasonably could infer that Grady stole the
guns and carried them away. Rose, 339 N.C. at 192, 451 S.E.2d at 223; Fritsch, 351
N.C. at 379, 526 S.E.2d at 455. Accordingly, the trial court did not err by denying
Grady’s motion to dismiss.
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Conclusion
We find no error in the trial court’s judgments.
NO ERROR.
Chief Judge McGEE and Judge HAMPSON concur.
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