State v. Marion

NO. COA13-200
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
STATE OF NORTH CAROLINA
v. Swain County
Nos. 08 CRS 935-40
TIFFANY LEIGH MARION
Appeal by defendant from judgments entered 19 March 2012 by
Judge Marvin Pope in Swain County Superior Court. Heard in the
Court of Appeals 26 September 2013.
Roy Cooper, Attorney General, by Mary Carla Hollis,
Assistant Attorney General, for the State.
Staples Hughes, Appellate Defender, by Daniel R. Pollitt
and Paul M. Green, Assistant Appellate Defenders, for
defendant-appellant.
DAVIS, Judge.
Tiffany Leigh Marion (“Defendant”) appeals from her
convictions for two counts of first-degree murder, one count of
attempted murder, two counts of robbery with a dangerous weapon,
and one count of first-degree burglary. Defendant’s primary
argument on appeal is that there was insufficient evidence
presented at trial to support her convictions under either an
acting in concert theory or an aiding and abetting theory.
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After careful review, we vacate in part and remand in part as
set out below.
Factual Background
The State’s evidence tended to establish the following
facts: On 5 August 2008, Defendant traveled from Atlanta,
Georgia to Cherokee, North Carolina to visit Harrah’s casino.
Defendant was accompanied by Jada McCutcheon (“McCutcheon”) — a
friend from the massage therapy school Defendant attended — and
three men, Jeffrey Miles (“Miles”), Jason Johnson (“Johnson”),
and a man known as “Freak.” The group used ecstasy and smoked
marijuana during the car trip and during their entire stay in
North Carolina. Some of the ecstasy they used during their trip
was mixed with other controlled substances, including heroin and
cocaine. Once they arrived, part of the group gambled for
several hours at the casino. Afterwards, Miles checked into a
hotel room and listed Defendant as his guest. The group
congregated in Miles’ room over the next several days to “chill”
and use drugs.
On 7 August 2008, Miles, Johnson, and “Freak” went to the
local Wal-Mart, where they met two local residents, Mark Goolsby
(“Goolsby”) and Dean Mangold (“Mangold”). Miles asked Goolsby
and Mangold if they wanted to take ecstasy and go to the casino
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with them, and the two replied affirmatively. Miles eventually
brought them back to his hotel room and showed them an AR-15
firearm that he was interested in selling. Mangold suggested
trying to sell the gun to a man named Scott Wiggins (“Wiggins”)
and offered to take them up to see Wiggins. Mangold also told
Miles that Wiggins “had drugs.” During this conversation,
Defendant was lying on the bed and seemed “messed up.”
Goolsby, Mangold, Miles, Johnson, McCutcheon, and Defendant
got into their van and drove to Wiggins’ home. During the
drive, Mangold told Miles that Wiggins owed him money and that
Wiggins had “all this stuff” and “a lot of money.” Miles was
driving the van and parked it on a gravel logging road where it
could not be seen from Wiggins’ house. Everyone exited the
vehicle, and Miles told everyone that they were “fixin’ to hit a
lick,” meaning that they were about to rob someone. Defendant
stayed by the van and told McCutcheon that she “didn’t want to
go up there.”
Johnson kicked in the door of the residence and proceeded
to hold Wiggins and another person present in Wiggins’ home,
Michael Heath Compton (“Compton”), at gunpoint while the others
began gathering valuables. While the group was searching for
valuables, another person, Timothy Dale Waldroup (“Waldroup”),
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drove up to the house and was escorted into the residence at
gunpoint. Miles shot Wiggins, Compton, and Waldroup during the
course of the burglary, and only Waldroup survived. Goolsby and
Mangold heard the gunshots, “got scared,” and left the scene.
Defendant then left the area by the van where she had been
waiting, walked towards the house, found Johnson, and informed
him that Goolsby and Mangold had left. She then returned to the
van.
Johnson, Miles and McCutcheon proceeded to load the stolen
items into Wiggins’ pickup truck. Defendant attempted to drive
the van but was unable to release the parking brake so
McCutcheon drove the vehicle. Defendant and the others traveled
back to Georgia and moved the stolen items into Miles’
apartment.
On 18 August 2008, the Swain County grand jury returned
bills of indictment charging Defendant with two counts of first-
degree murder, one count of attempted murder, one count of
first-degree burglary, two counts of robbery with a dangerous
weapon, and three counts of first-degree kidnapping. The matter
came on for a jury trial during the February and March 2012
Criminal Sessions of Swain County Superior Court.
Defendant offered evidence at trial and testified in her
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defense. She testified that she was using drugs during the
entire trip and did not learn what had happened at Wiggins’
house until she returned to Georgia on 11 August 2008. She
further stated that she never heard or was a part of any
conversations regarding a plan to rob Wiggins and explained that
she “had no idea what was going on” when the group went to
Wiggins’ house, “had nothing to do with it,” and “would never,
ever be a part of anything like this.”
The jury found Defendant guilty of two counts of first-
degree murder, one count of attempted murder, one count of
first-degree burglary, and two counts of robbery with a
dangerous weapon. Defendant was found not guilty of the three
kidnapping charges. The trial court entered judgments based on
the jury’s verdicts, sentencing Defendant to two consecutive
terms of life imprisonment without parole for the first-degree
murder charges, a presumptive-range term of 125 to 159 months
for the attempted murder conviction, and presumptive-range terms
of 51 to 71 months imprisonment for each of the remaining
charges. Defendant gave timely written notice of appeal.
Analysis
Defendant raises a number of arguments on appeal. We
address each in turn.
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I. Defendant’s Statement to Detective Posey
Defendant first argues that the trial court erred by
allowing the State to impeach her trial testimony through the
use of a “written instrument[] the prosecutor improperly
characterized, described, and referred to in court as
‘defendant’s written statement.’” Defendant acknowledges that
she did not object to the use of this evidence at trial and
therefore seeks review under the plain error doctrine. Under
plain error review, Defendant bears the burden of showing that
the alleged error was such that it “had a probable impact on the
jury’s finding that the defendant was guilty.” State v.
Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)
(citations and quotation marks omitted).
Relying on State v. Walker, 269 N.C. 135, 152 S.E.2d 133(1967), Defendant contends that the trial court committed plain
error by admitting into evidence notes prepared by Detective
Carolyn Posey (“Detective Posey”) memorializing a conversation
with Defendant and allowing the State to impeach Defendant’s
testimony with those notes.
In Walker, our Supreme Court held as follows:
If a statement purporting to be a confession
is given by [the] accused, and is reduced to
writing by another person, before the
written instrument will be deemed admissible
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as the written confession of [the] accused,
he must in some manner have indicated his
acquiescence in the correctness of the
writing itself. If the transcribed
statement is not read by or to [the]
accused, and is not signed by [the] accused,
or in some other manner approved, or its
correctness acknowledged, the instrument is
not legally, or per se, the confession of
[the] accused; and it is not admissible in
evidence as the written confession of [the]
accused.
Id. at 139, 152 S.E.2d at 137 (citation and quotation marks
omitted).
Our Supreme Court has explained, however, that the
authentication requirements outlined in Walker, and later
reiterated in State v. Wagner, 343 N.C. 250, 470 S.E.2d 33(1996), do not apply to statements made by a defendant that are
not confessions. See State v. Moody, 345 N.C. 563, 579, 481
S.E.2d 629, 637 (holding that “the requirements outlined in
Wagner do not apply” because “[a]t no time was [the law
enforcement officer’s] record of his interview with defendant
characterized as defendant’s written confession”), cert. denied,
522 U.S. 871, 139 L.Ed.2d 125 (1997).
Here, Detective Posey testified that she took notes while
she and Deputy Scott Cody transported Defendant from Georgia to
North Carolina on 20 August 2008. Detective Posey explained
that the notes were taken in shorthand, and they were “not
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exactly word for word.” She replied affirmatively when asked if
what she wrote was “as best [as] you can recall . . . what
[Defendant] said while she was in the car.”
After reviewing the transcript and record, we have found no
indication that Defendant’s statements to Detective Posey were
ever characterized as Defendant’s confession. A confession is
“an acknowledgment in express words, by the accused in a
criminal case, of the truth of the guilty fact charged or of
some essential part of it.” State v. Jones, 294 N.C. 642, 659,
243 S.E.2d 118, 128 (1978) (citation and quotation marks
omitted). Defendant’s statements to Detective Posey,
conversely, did not admit her guilt or participation in the
crimes. Rather, the notes memorializing the conversation
reflected Defendant’s assertions that she did not know “anything
about robbing anybody”; “did not even know anyone had passed”;
that “nobody said anything to [her] about guns”; and that she
only knew what had happened afterwards because McCutcheon told
her.
A defendant’s statement that is not purported to be a
written confession is admissible under the exception to the
hearsay rule for statements by a party-opponent and does not
require the defendant’s acknowledgement or adoption. Moody, 345
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N.C. at 579, 481 S.E.2d at 637; see State v. Randolph, ___ N.C.
App. ___, ___, 735 S.E.2d 845, 852 (2012) (“[S]o long as oral
statements are not obtained in violation of the constitutional
protections against self-incrimination or due process, a
defendant’s own statement is admissible when offered against him
at trial as an exception to the hearsay rule.” (citation and
quotation marks omitted)), appeal dismissed, 366 N.C. 562, 738
S.E.2d 392 (2013). Accordingly, we hold that the trial court
did not commit error, much less plain error, by allowing the
State to impeach Defendant with her prior statements to
Detective Posey.
II. Failure to Arrest Judgment on a Felony Conviction
Defendant’s second argument on appeal is that the trial
court erred by failing to arrest judgment with respect to any of
her felony convictions. Defendant asserts that because she was
convicted of two counts of first-degree felony murder, the trial
court was required to arrest judgment on at least two of her
felony convictions pursuant to the felony murder merger
doctrine. The State concedes that failing to arrest judgment on
any of Defendant’s felony offenses was error but argues that
judgment need be arrested on only one of the felonies.
“The felony murder merger doctrine provides that when a
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defendant is convicted of felony murder only, the underlying
felony constitutes an element of first-degree murder and merges
into the murder conviction.” State v. Rush, 196 N.C. App. 307,
313-14, 674 S.E.2d 764, 770 (citation, quotation marks, and
brackets omitted), disc. review denied, 363 N.C. 587, 683 S.E.2d
706 (2009). Thus, if the defendant’s conviction for first-
degree murder is based solely upon the theory of felony murder,
he or she “cannot be sentenced on the underlying felony in
addition to the sentence for first-degree murder.” Id. at 314,
674 S.E.2d at 770 (citation and quotation marks omitted). In
this case, because Defendant’s first-degree murder convictions
were exclusively premised on a felony murder theory, the trial
court erred in entering judgment on all of Defendant’s felonies.
However, we are not persuaded by Defendant’s contention
that judgment must be arrested with respect to all of her felony
convictions. Defendant asserts that because the trial court’s
instructions were disjunctive and permitted the jury to find
Defendant guilty of felony murder if it found that she committed
“the felony of robbery with a firearm, burglary, and/or
kidnapping,” the trial court should have arrested judgment on
all of the felony convictions on the theory that they all could
have served as the basis for the felony murder convictions.
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Our Court rejected this same argument in State v. Coleman,
161 N.C. App. 224, 587 S.E.2d 889 (2003). We explained that the
disjunctive instruction was not error — and did not require the
trial court to arrest judgment with respect to all of the
defendant’s felony convictions — because the defendant’s right
to a unanimous verdict was not violated and the instruction
merely allowed the jury to convict the defendant of a single
wrong by alternative acts. Id. at 234-35, 587 S.E.2d at 896.
Indeed, this Court has explicitly held that if multiple
felonies support a felony murder conviction, the merger rule
only “requires the trial court to arrest judgment on at least
one of the underlying felony convictions . . . .” State v.
Dudley, 151 N.C. App. 711, 716, 566 S.E.2d 843, 847 (2002),
appeal dismissed and disc. review denied, 356 N.C. 684, 578
S.E.2d 314 (2003). In cases where the jury does not
specifically determine which conviction serves as the underlying
felony, we have held that the trial court may, in its
discretion, select the felony judgment to arrest. See Coleman,
161 N.C. App. at 236, 587 S.E.2d at 897 (“[W]here no specific
underlying felony was noted in the jury instructions on felony
murder, and where there are multiple felony convictions which
could serve as the underlying felony for purposes of the felony
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murder conviction, it is in the discretion of the trial court as
to which felony will serve as the underlying felony for purposes
of sentencing.”). We therefore remand with instructions that
the trial court arrest judgment with respect to at least one of
Defendant’s felony convictions “in such a manner that would not
subject [D]efendant to a greater punishment.” Dudley, 151 N.C.
App. at 716, 566 S.E.2d at 847.
III. Attempted Murder
Defendant also argues that the trial court erred by
entering judgment on the jury’s guilty verdict of attempted
murder. The State concedes error on this issue as well.
The trial court’s instruction concerning the attempted
murder offense was based solely upon a theory of attempted
felony murder. This Court has held that “the offense of
‘attempted first degree felony murder’ does not exist under our
law.” State v. Lea, 126 N.C. App. 440, 449, 485 S.E.2d 874, 879
(1997) (cited with approval by State v. Coble, 351 N.C. 448,
452, 527 S.E.2d 45, 48 (2000)). In so holding, we reasoned that
the offense of felony murder “does not require that the
defendant intend the killing, only that he or she intend to
commit the underlying felony. Lea, 126 N.C. App. at 449, 485
S.E.2d at 880. Attempt, on the other hand, requires the State
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to establish that the defendant specifically intended to commit
the crime charged. Id. Thus, “a charge of ‘attempted felony
murder’ is a logical impossibility in that it would require the
defendant to intend what is by definition an unintentional
result.” Id. at 450, 485 S.E.2d at 880.
Because attempted first-degree felony murder does not exist
under the laws of North Carolina, we vacate Defendant’s
conviction with respect to this charge.
IV. Sufficiency of the Evidence of Acting in Concert or Aiding
and Abetting
Defendant next asserts that all of her convictions must be
vacated because the State failed to present substantial evidence
concerning her involvement in the crimes under either the theory
of (1) acting in concert; or (2) aiding and abetting.
Defendant’s counsel did not make a motion to dismiss the charges
at the close of all of the evidence, thereby failing to preserve
this issue for appellate review. See N.C.R. App. P.10(a)(3)
(“[I]f a defendant fails to move to dismiss the action . . . at
the close of all the evidence, defendant may not challenge on
appeal the sufficiency of the evidence to prove the crime
charged.”). However, because Defendant also brings forward an
ineffective assistance of counsel claim based on her counsel’s
failure to make the motion to dismiss, we elect to review
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Defendant’s sufficiency of the evidence argument pursuant to
Rule 2 of the North Carolina Rules of Appellate Procedure. See
State v. Gayton-Barbosa, 197 N.C. App. 129, 140, 676 S.E.2d 586,
593 (2009) (“[P]ursuant to N.C.R. App. P.2, we will hear the
merits of defendant’s claim despite the rule violation because
defendant also argues ineffective assistance of counsel based on
counsel’s failure to make the proper motion to dismiss.”).
Here, the State relied on two theories to establish
Defendant’s criminal responsibility for the murder, burglary,
and robbery with a dangerous weapon offenses: (1) acting in
concert, and (2) aiding and abetting. Under a theory of acting
in concert, a defendant may be found guilty of an offense if she
“is present at the scene of the crime and . . . [s]he is acting
together with another who does the acts necessary to constitute
the crime pursuant to a common plan or purpose to commit the
crime.” State v. Barnes, 91 N.C. App. 484, 487, 372 S.E.2d 352,
353 (1988) (citation and quotation marks omitted), aff’d as
modified, 324 N.C. 539, 380 S.E.2d 118 (1989).
Under a theory of aiding and abetting, the State must
present evidence “(1) that the crime was committed by another;
(2) that the defendant knowingly advised, instigated,
encouraged, procured, or aided the other person; and (3) that
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the defendant’s actions or statements caused or contributed to
the commission of the crime by the other person.” State v.
Bond, 345 N.C. 1, 24, 478 S.E.2d 163, 175 (1996), cert. denied,
521 U.S. 1124, 138 L.Ed.2d 1022 (1997).
A person may be guilty as an aider and
abettor if that person . . . accompanies the
actual perpetrator to the vicinity of the
offense and, with the knowledge of the
actual perpetrator, remains in that vicinity
for the purpose of aiding and abetting in
the offense and sufficiently close to the
scene of the offense to render aid in its
commission, if needed, or to provide a means
by which the actual perpetrator may get away
from the scene upon the completion of the
offense.
State v. Pryor, 59 N.C. App. 1, 7, 295 S.E.2d 610, 615 (1982)
(citation and quotation marks omitted).
When determining whether there is substantial evidence to
sustain a conviction,
all of the evidence actually admitted,
whether competent or incompetent, which is
favorable to the State is to be considered
by the court in ruling on the motion. The
evidence is to be considered in the light
most favorable to the State; the State is
entitled to every reasonable intendment and
every reasonable inference to be drawn
therefrom[.]
State v. Spencer, 192 N.C. App. 143, 147, 664 S.E.2d 601, 604
(2008) (internal citation and quotation marks omitted), disc.
review denied, 363 N.C. 380, 680 S.E.2d 208 (2009).
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Evidence offered by the defendant is disregarded when
considering a motion to dismiss unless the evidence is
“favorable to the State or does not conflict with the State’s
evidence.” State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866,
869 (2002). Finally, our Supreme Court has made clear that
“[c]ircumstantial evidence may withstand a motion to dismiss and
support a conviction even when the evidence does not rule out
every hypothesis of innocence.” State v. Fritsch, 351 N.C. 373,
379, 526 S.E.2d 451, 455 (citation and quotation marks omitted),
cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000).
We conclude that the evidence offered at trial, taken in
the light most favorable to the State, was sufficient to support
Defendant’s convictions under both theories of criminal
liability. Although Defendant argues that she never said
anything to the other participants to indicate that she had a
common plan or an intent to aid them in their crimes, neither
acting in concert nor aiding and abetting require a defendant to
expressly vocalize her assent to the criminal conduct. See
State v. Hill, 182 N.C. App. 88, 93, 641 S.E.2d 380, 385 (2007)
(“The theory of acting in concert does not require an express
agreement between the parties. All that is necessary is an
implied mutual understanding or agreement to do the crimes.”
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(citation and quotation marks omitted)); State v. Allen, 127
N.C. App. 182, 185, 488 S.E.2d 294, 296 (1997) (“Communication
of intent [to aid or abet] to the perpetrator may be inferred
from the defendant’s actions and from his relation to the
perpetrator. . . . [A defendant’s] presence alone may be
sufficient when the [defendant] is a friend of the perpetrator
and the perpetrator knows the friend’s presence will be regarded
as encouragement and protection.”).
The State offered evidence, through the testimony of
several of the other participants,1 that Defendant (1) was
present for the discussions and aware of the group’s plan to rob
Wiggins; (2) noticed Mangold’s gun because it was similar to the
one “she had got shot with prior in her life;” (3) was sitting
next to Miles in the van when he loaded his shotgun; (4) told
the group that she did not want to go up to the house but
remained outside the van; (5) walked toward the house to inform
the others that Mangold and Goolsby had fled; (6) told
McCutcheon and Johnson “y’all need to come on;” (7) attempted to
start the van when McCutcheon returned but could not release the
parking brake; and (8) assisted in unloading the goods stolen
1
McCutcheon died before Defendant’s trial, but her interview
with law enforcement officers on 17 September 2008 was
introduced at trial under Rule 804 of the North Carolina Rules
of Evidence.
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from Wiggins’ house into Miles’ apartment once they returned to
Georgia.
This evidence — and the reasonable inferences that may be
drawn from it — is relevant evidence that a reasonable juror
could conclude was adequate to support the conclusion that
Defendant remained in the vicinity of the crime scene, was
willing to render assistance, and did, in fact, aid in the
perpetration of the offenses by informing the others that
Goolsby and Mangold “ran off” and encouraging everyone to hurry
up and leave. Defendant’s testimony that she was not aware of
what was happening and did not act pursuant to a common plan or
intend to offer assistance is not considered when ruling on the
sufficiency of the evidence and did not warrant a dismissal of
the charges. See State v. Agustin, ___ N.C. App. ___, ___, 747
S.E.2d 316, 318 (2013) (“Contradictions and discrepancies do not
warrant dismissal of the case; rather, they are for the jury to
resolve. Defendant’s evidence, unless favorable to the State,
is not to be taken into consideration.” (citation and quotation
marks omitted)). Thus, the determination of whether Defendant
was criminally responsible for these offenses under either an
aiding and abetting theory or an acting in concert theory was a
question for the jury.
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V. Ineffective Assistance of Counsel
Finally, Defendant contends that her trial counsel’s
failure to make a motion to dismiss at the close of all of the
evidence deprived her of her constitutional right to effective
assistance of counsel. We disagree.
In order to establish ineffective assistance of counsel,
“[a] defendant must first show that [her] defense counsel’s
performance was deficient and, second, that counsel’s deficient
performance prejudiced [her] defense.” State v. Thompson, 359
N.C. 77, 115, 604 S.E.2d 850, 876 (2004), cert. denied, 546 U.S.
830, 163 L.Ed.2d 80 (2005).
Deficient performance may be established by
showing that counsel’s representation fell
below an objective standard of
reasonableness. Generally, to establish
prejudice, a defendant must show that there
is a reasonable probability that, but for
counsel’s unprofessional errors, the result
of the proceeding would have been different.
A reasonable probability is a probability
sufficient to undermine confidence in the
outcome.
State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (internal
citations and quotation marks omitted), cert. denied, 549 U.S.
867, 166 L.Ed.2d 116 (2006).
However, “if a reviewing court can determine at the outset
that there is no reasonable probability that in the absence of
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counsel’s alleged errors the result of the proceeding would have
been different, then the court need not determine whether
counsel’s performance was actually deficient.” State v.
Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 249 (1985).
As discussed above, the State presented sufficient evidence
to withstand a motion to dismiss the charges against Defendant
under the acting in concert and aiding and abetting theories of
criminal liability. As such, we cannot conclude that Defendant
was prejudiced by her counsel’s failure to make a proper motion
to dismiss the charges. Therefore, Defendant’s argument is
overruled.
Conclusion
For the reasons stated above, we vacate Defendant’s
conviction for attempted murder and remand to the trial court so
that it may arrest judgment with respect to at least one of
Defendant’s felony convictions pursuant to the merger doctrine.
NO ERROR IN PART; VACATED IN PART; REMANDED IN PART.
Judges HUNTER, JR. and ERVIN concur.