State v. Brown

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-278
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
STATE OF NORTH CAROLINA
v. New Hanover County
No. 13CRS054532
JAMAR BROWN,
Defendant.
Appeal by defendant from judgment entered on or about 30
October 2013 by Judge Phyllis M. Gorham in New Hanover County
Superior Court. Heard in the Court of Appeals 11 August 2014.
Attorney General Roy A. Cooper III, by Special Deputy
Attorney General James M. Stanley, Jr., for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Jillian C. Katz, for defendant-appellant.
STROUD, Judge.
Defendant appeals from a judgment imposing an active
sentence of 51 to 74 months upon jury convictions of robbery
with a dangerous weapon and conspiracy to commit robbery with a
dangerous weapon.
The State’s evidence tends to show that on 16 May 2013,
Christopher Tyler, a pizza delivery driver for Domino’s Pizza,
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delivered an order to an address in Castle Hayne, N.C. Upon
arrival, he noticed that the address appeared to be a vacant
house. Mr. Tyler turned his vehicle around and stopped at a
stop sign. A man approached his car and asked, “Where’s the
money? . . . I know you have money, where is it?” Mr. Tyler
gave the man all of the money in his wallet and pocket. The man
put a knife to Mr. Tyler’s throat and said, “Don’t try
anything.” Meanwhile, a second man went into Mr. Tyler’s car
and searched through it. The second man removed Mr. Tyler’s car
keys from the ignition. After the two men took the pizza and
Mr. Tyler’s money and keys, the man with the knife ordered Mr.
Tyler to get back into the car and sit there. The two men
walked away. After about five minutes passed, Mr. Tyler got out
of the car, went inside a house across the street, and called
the police. While Mr. Tyler was on the telephone, the two men
drove by and threw his car keys out of the window. Mr. Tyler
subsequently identified Tishaud McMillan as the man who had the
knife. He could not identify the second man.
On 28 May 2013, Sergeant David Swan of the New Hanover
County Sheriff’s Department interviewed defendant about the
incident. Defendant initially told the officer that he had
nothing to do with the robbery of Mr. Tyler. After the officer
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falsely told defendant that his DNA and fingerprints were found
in Mr. Tyler’s car, defendant stated that he was present during
the robbery but did not participate. Defendant later admitted
that he “looked in [Mr. Tyler’s] car” and ran from the scene
with McMillan. He also gave a written statement in which he
indicated McMillan put a knife to the pizza delivery person,
“made him give up everything,” took the pizza, and “through
[sic] his keys.” Defendant also stated, “[T]hen we took of
[sic] running I Jamar Brown went home and he went his way.”
Defendant contends the court erred by denying his motions
to dismiss the charges for insufficient evidence. He argues
that his confession, standing alone, was insufficient under the
corpus delicti rule to establish him as a perpetrator of the
offenses. Defendant has filed a reply brief in which he
withdraws this issue. We therefore will not address it.
Defendant also contends that the court erred by submitting
an instruction to the jury on flight. He argues the instruction
is not supported by evidence.
“Assignments of error challenging the trial court’s
decisions regarding jury instructions are reviewed de novo by
this Court.” State v. Osorio, 196 N.C. App. 458, 466, 675
S.E.2d 144, 149 (2009).
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So long as there is some evidence in the
record reasonably supporting the theory that
defendant fled after commission of the crime
charged, the instruction [on flight] is
properly given. The fact that there may be
other reasonable explanations for
defendant’s conduct does not render the
instruction improper.”
State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977).
However, “[m]ere evidence that defendant left the scene of the
crime is not enough to support an instruction on flight. There
must also be some evidence that defendant took steps to avoid
apprehension.” State v. Thompson, 328 N.C. 477, 490, 402 S.E.2d
386, 392 (1991).
Defendant argues there is no evidence that the perpetrators
fled to avoid apprehension, as the evidence shows the
perpetrators merely walked away from the scene and came back
later to return the car keys. Defendant’s argument, however,
ignores defendant’s confession in which he stated that defendant
and his accomplice took Mr. Tyler’s money and pizza and “took of
[sic] running.” His argument also overlooks Mr. Tyler’s
testimony that the perpetrators took Mr. Tyler’s car keys and
ordered him to remain in the vehicle, thereby allowing them to
get away and avoid immediate apprehension. We conclude the
court properly submitted the instruction based upon the
foregoing evidence.
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We hold defendant received a fair trial, free of
prejudicial error.
NO ERROR.
Judges BRYANT and HUNTER, JR., Robert N. concur.
Report per Rule 30(e).