State v. Ricks

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA12-1476
NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
STATE OF NORTH CAROLINA
v. Edgecombe County
Nos. 10 CRS 2944
TRAVIS RICKS, 10 CRS 2945
Defendant.
Appeal by defendant from judgments entered 13 June 2012 by
Judge Milton F. Fitch, Jr. in Edgecombe County Superior Court.
Heard in the Court of Appeals 9 May 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Kimberley A. D'Arruda, for the State.
Anna S. Lucas for defendant-appellant.
GEER, Judge.
Defendant Travis Ricks appeals from his convictions of
first degree burglary, possession of a stolen firearm, and
attempted robbery with a dangerous weapon. He primarily
contends on appeal that the indictment for possession of a
stolen firearm was insufficient to confer subject matter
jurisdiction on the trial court because it did not allege that
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defendant knew or had reason to know that the firearm was
stolen. However, the indictment's allegation that defendant
"willfully" possessed the stolen firearm was sufficient to
allege the element of knowledge and, therefore, the indictment
was adequate to vest jurisdiction in the trial court.
Facts
The State's evidence tended to show the following facts.
George Bryant shared a home with his grandson, his stepson
(Elliot Sharpe), his niece, and a family friend named Timmy
Jenkins. On 17 May 2010, Mr. Bryant, his grandson, and his
niece were asleep in the living room. Mr. Sharpe was asleep in
an upstairs bedroom, and Mr. Jenkins was asleep in a bedroom in
the back of the house. At around 3:00 a.m., Mr. Bryant and his
niece were awakened by the sound of the front door of the house
being kicked down.
Mr. Bryant looked up to see two men, both wearing masks,
enter the house with guns. The taller of the two men had
dreadlocks and was carrying a shotgun or rifle. The taller man
told Mr. Bryant and his niece not to move and asked Mr. Bryant
where the money was. When Mr. Bryant responded that he did not
know anything about any money, the taller man told him to lie
still. While the taller man held Mr. Bryant, his niece, and his
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grandson at gunpoint in the living room, the second intruder
went toward the back of the house.
Mr. Jenkins was awakened when the second intruder kicked in
the door of the back room where he had been asleep. The man
struck Mr. Jenkins on the head with a handgun or small shotgun
and demanded money. When Mr. Jenkins denied knowing of any
money, the man struck him again on the head and dragged him into
the living room beside Mr. Bryant. Mr. Jenkins noticed that the
taller intruder, who was still in the living room, had
dreadlocks.
Sometime during these events, Mr. Sharpe woke up, realized
that something was wrong, and called the police. After about 35
minutes, the taller intruder said the police were coming. The
shorter intruder ran out the back door, while the taller man ran
toward the back of the house.
Officer J.A. Palmer of the Rocky Mount Police Department
responded to Mr. Sharpe's call to the police. When Officer
Palmer arrived at the house, he saw a black male running from
the back of the house. The officer did not pursue the suspect
because he understood there were two suspects. He instead
waited at the back door of the house for another officer to
arrive. When Officer F.A. Adamson of the Rocky Mount Police
Department arrived, the two officers entered the house, followed
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by Officer Brent Lawton, also of the Rocky Mount Police
Department.
The officers found Mr. Bryant, his niece, and Mr. Jenkins
lying face down on the living room floor. After being told that
someone else was in the back of the house, Officers Lawton and
Adamson proceeded down the back hallway of the house. Officer
Lawton found defendant sitting on a couch watching television in
a back bedroom of the house. Officer Lawton patted down
defendant and took him to the living room.
Officer Palmer then searched defendant and found a digital
camera. After Mr. Bryant identified the camera as coming from
the residence, Officer Palmer returned the camera to Mr. Bryant.
At the scene, defendant identified himself as Jarvis Battle, and
officers found in defendant's car a social security card and a
driver's license bearing defendant's photograph both in the name
of Jarvis Battle.
After defendant was taken to the police station, an officer
searched Mr. Bryant's house for the weapon used by defendant.
The officer found an AR-15 rifle underneath the covers of the
bed in the bedroom in the back of the house. A search of the
rifle's serial numbers in the National Crime Information Center
database, which tracks stolen firearms, indicated that the rifle
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had been stolen from 151 Blackwell Court in Rocky Mount, North
Carolina.
At the police station, defendant, after being given his
Miranda warnings, admitted that he and Jermaine Pittman had
planned to break into the house to steal marijuana. Because
defendant was the larger of the two men, he had kicked in the
door. However, defendant denied having a gun during the
robbery. Defendant ultimately refused to write out his
statement.
Defendant was indicted for one count of first degree
burglary, two counts of possession of a stolen firearm, robbery
with a dangerous weapon, and assault by pointing a gun. Before
trial, the State withdrew the indictment for one count of
possession of a stolen firearm. At trial, the State presented
the testimony of James Hancock, who identified the rifle found
at the scene as belonging to him. He also testified that he
owned a high capacity clip that had been recovered at the same
time as the rifle. Mr. Hancock and Corporal Trevor Taylor of
the Rocky Mount Police Department confirmed that the rifle had
been stolen on 11 May 2010 when an unknown person kicked in the
back door of Mr. Hancock's home.
The jury found defendant guilty of first degree burglary,
possession of a stolen firearm, and attempted robbery with a
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dangerous weapon. The jury found defendant not guilty of
assault by pointing a gun. The trial court sentenced defendant
to a presumptive-range term of 84 to 110 months imprisonment for
the first degree burglary charge, a consecutive presumptive-
range term of 84 to 110 months imprisonment for the attempted
robbery with a dangerous weapon charge, and a consecutive
presumptive-range term of 10 to 12 months imprisonment for the
possession of a stolen firearm charge. Defendant timely
appealed to this Court.
I
Defendant first contends that the trial court lacked
subject matter jurisdiction over the charge of possession of a
stolen firearm because the indictment did not allege that
defendant knew or had reason to know that the AR-15 rifle was
stolen. "[W]here an indictment is alleged to be invalid on its
face, thereby depriving the trial court of its jurisdiction, a
challenge to that indictment may be made at any time, even if it
was not contested in the trial court." State v. Wallace, 351
N.C. 481, 503, 528 S.E.2d 326, 341 (2000). "On appeal, we
review the sufficiency of an indictment de novo." State v.
McKoy, 196 N.C. App. 650, 652, 675 S.E.2d 406, 409 (2009), cert.
denied, 336 N.C. 405, 735 S.E.2d 329 (2012).
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The indictment charging defendant with possession of a
stolen firearm, in violation of N.C. Gen. Stat. § 14-71.1(2013), read:
The jurors for the State upon their
oath present that on or about the date of
offense shown and in the county and state
named above, the defendant named above,
unlawfully, willfully, and feloniously did
possess one Rock River AR-15 rifle, the
personal property of James Hancock, which
property was stolen property in that it was
a Rock River AR-15 rifle. This act was in
violation of the above referenced statute.
This Court has held that "[a]s a '[p]rerequisite to its
validity, an indictment must allege every essential element of
the criminal offense it purports to charge,'" State v.
Billinger, 213 N.C. App. 249, 255, 714 S.E.2d 201, 206 (2011)
(quoting State v. Courtney, 248 N.C. 447, 451, 103 S.E.2d 861,
864 (1958)), although it "need only allege the ultimate facts
constituting each element of the criminal offense," State v.
Rambert, 341 N.C. 173, 176, 459 S.E.2d 510, 512 (1995). "Our
courts have recognized that while an indictment should give a
defendant sufficient notice of the charges against him, it
should not be subjected to hyper technical scrutiny with respect
to form." In re S.R.S., 180 N.C. App. 151, 153, 636 S.E.2d 277,
280 (2006). "The general rule in this State and elsewhere is
that an indictment for a statutory offense is sufficient, if the
offense is charged in the words of the statute, either literally
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or substantially, or in equivalent words." State v. Greer, 238
N.C. 325, 328, 77 S.E.2d 917, 920 (1953) (emphasis added).
"For a defendant to be found guilty 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 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). Defendant argues
that the indictment did not sufficiently allege the third
element: that defendant knew or had reason to know the AR-15 was
stolen.
While the indictment in this case did not specifically
allege defendant's knowledge, our courts have held that the term
"willfully," in the criminal context, "implies that the act is
done knowingly and of stubborn purpose." State v. Falkner, 182
N.C. 793, 798, 108 S.E. 756, 758 (1921). For example, in State
v. Harris, ___ N.C. App. ___, ___, 724 S.E.2d 633, 636 (2012),
the charged criminal offense required that the defendant, a sex
offender, have "'knowingly'" entered the grounds of an
elementary school. This Court held that "[a]lthough the
indictment did not explicitly track the relevant statutory
language by alleging that Defendant was 'knowingly' on the
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school's premises, the fact that the indictment stated that
Defendant acted 'willfully,' sufficed to allege the requisite
'knowing' conduct." Id. at ___, 724 S.E.2d at 637-38.
Here, the indictment alleged that defendant "unlawfully,
willfully, and feloniously" possessed the stolen rifle. This
allegation of willfulness was sufficient under Falkner and
Harris to allege the knowledge element of the offense of
possession of a stolen firearm.
II
Defendant next contends that the trial court erred in
denying his motion to dismiss the charge of possession of a
stolen firearm because there was insufficient evidence that
defendant knew or had reason to know that the AR-15 rifle was
stolen. "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)
(quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918
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(1993)). "Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." State v. Smith, 300 N.C. 71, 78-79, 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).
While the State did not present direct evidence of
defendant's knowledge that the rifle was stolen, this Court has
noted that a "[d]efendant's guilty knowledge can be implied from
the circumstances." State v. Wilson, 106 N.C. App. 342, 347,
416 S.E.2d 603, 606 (1992). In Wilson, this Court held that
there was sufficient evidence of guilty knowledge when a stolen
handgun, which had been used in several robberies, was thrown
from a car while the suspects were fleeing the police. Id. at
347-48, 416 S.E.2d at 606.
Similarly, in State v. Taylor, 64 N.C. App. 165, 166, 169,
307 S.E.2d 173, 174, 176 (1983), aff'd in part and rev'd in part
on other grounds, 311 N.C. 380, 317 S.E.2d 369 (1984), when the
defendant, who was suspected of intending to rob a store, walked
into an alley, a person keeping him under surveillance yelled at
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him. At that point, the defendant stooped down next to a parked
car, removed a pistol from his coat, and "surreptitiously hid[]
or dispose[d] of" the pistol by throwing it into nearby bushes.
Id. This Court concluded that "[t]hese circumstances, viewed
in the light most favorable to the State, are sufficiently
incriminating to permit a reasonable inference that defendant
knew or must have known that the firearm was stolen, and thus
sufficient to support a finding to that effect by the jury."
Id. at 169, 307 S.E.2d at 176.
The key to these decisions is that the defendant was trying
to dispose of the weapon, separate and apart from trying to
avoid arrest for another crime. The facts suggested a
consciousness of guilt relating to the gun specifically. See
State v. Wilson, 203 N.C. App. 547, 554, 691 S.E.2d 734, 740
(2010) ("These cases establish the rule that guilty knowledge
can be inferred from defendant's throwing away the stolen
weapon, despite an intervening crime committed by defendant with
the weapon.").
Here, defendant used the rifle to threaten the occupants of
the house during the robbery. When he became aware that the
police were coming, defendant ran to the back of the house where
he hid the rifle under the covers of a bed. He then sat on a
couch, away from the bed, pretending to watch television. When
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defendant was interrogated, defendant admitted to kicking in the
house's door in order to commit a robbery, but he denied having
a rifle. This evidence is sufficient to allow a jury to
conclude that defendant was trying to hide his possession of the
rifle. It, therefore, constitutes incriminating evidence
showing a consciousness of guilt that permits a finding that
defendant knew the rifle was stolen.
In arguing that the motion to dismiss should have been
granted, defendant points to Wilson, Brown, and State v. Allen,
79 N.C. App. 280, 339 S.E.2d 76, aff'd per curiam, 317 N.C. 329,
344 S.E.2d 789 (1986). None of those cases, however, involved
incriminating evidence showing a consciousness of guilt. See
Wilson, 203 N.C. App. at 555, 691 S.E.2d at 740 (reversing
denial of motion to dismiss charge of possession of stolen
firearm when no evidence that defendant knew where gun came from
and defendant's codefendant, following a robbery, took gun to
hide it in codefendant's mother's house); Brown, 182 N.C. App.
at 278-80, 282, 641 S.E.2d at 851-52, 853 (reversing denial of
motion to dismiss charge of possession of stolen firearm when
State's evidence was that officers found stolen gun in bag of
guns in bedroom closet of woman they had pursued after observing
drug deal; woman testified that bag belonged to defendant and
that he made up story about finding bag; and State presented no
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evidence that defendant tried to disassociate himself from
possession of bag); Allen, 79 N.C. App. at 285, 339 S.E.2d at 79(reversing denial of motion to dismiss charge of possession of
stolen goods based on officers finding stolen VCRs in
defendant's trunk when "defendant exhibited no such
incriminating behavior when [officer] stopped his car," but
rather "defendant freely submitted to a thorough search of the
passenger compartment and the trunk").
The cases cited by defendant are not controlling when, as
here, the State did present incriminating evidence that
defendant tried to abandon the gun and persuade the officers
that he did not have a gun even though he admitted breaking and
entering the house. The trial court, therefore, properly denied
the motion to dismiss.
III
Defendant next argues that the State did not properly amend
the indictment for robbery with a dangerous weapon. Defendant
notes that the trial court orally allowed the State's motion to
amend, but that the amendment was never set out in writing.
The original indictment read:
The jurors for the State upon their
oath present that on or about the date of
offense shown, and in the county and state
named above, the defendant named above
unlawfully, willfully and feloniously did
steal, take, and carry away another's
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personal property, one camera of the value
of $250.00, from the person and presence of
George Henry Bryant. The defendant
committed this act by means of an assault
consisting of having in his possession and
threatening the use of a firearm to wit, a
Rock River AR-15 rifle whereby the life of
George Henry Bryant was threatened and
endangered. This act was in violation of
[N.C. Gen. Stat. 14-87 (2013)].
(Emphasis added.) The indictment thus alleged that defendant
robbed Mr. Bryant of a camera.
At trial, the State moved to amend the indictment to allege
"attempted robbery with a dangerous weapon and to reallege the
particular property to [be] U.S. currency as opposed to [a]
digital camera." The trial court allowed the State's proposed
amendments, but the State never prepared a written amended
indictment. Defendant argues that because the oral order was
ineffective to actually amend the indictment, the trial court
should have allowed his motion to dismiss the robbery with a
dangerous weapon charge because the State failed to present
evidence that he robbed Mr. Bryant of a camera.
Even assuming, without deciding, that the oral indictment
was not effective, the evidence presented by the State as to the
allegations in the original indictment was sufficient to survive
a motion to dismiss. Our Supreme Court has held that "armed
robbery is: '(1) the unlawful taking or an attempt to take
personal property from the person or in the presence of another
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(2) by use or threatened use of a firearm or other dangerous
weapon (3) whereby the life of a person is endangered or
threatened.'" State v. Hope, 317 N.C. 302, 305, 345 S.E.2d 361,
363 (1986) (quoting State v. Beaty, 306 N.C. 491, 496, 293
S.E.2d 760, 764 (1982), overruled on other grounds by State v.
White, 322 N.C. 506, 369 S.E.2d 813 (1988)).
The only issue is whether the State presented evidence that
defendant unlawfully took or attempted to take a camera from Mr.
Bryant. While Mr. Bryant testified that he did not recall
anything being stolen from his house, Officer Palmer testified
that he recovered a camera from defendant's person when the
officer searched defendant. Mr. Bryant indicated that the
camera belonged to him, and Officer Palmer then returned the
camera to Mr. Bryant consistent with his department's practice
when stolen property was recovered at the scene of the robbery.
This evidence was sufficient to support the charge of armed
robbery of a camera. See State v. Patterson, 182 N.C. App. 102,
106-07, 641 S.E.2d 376, 379-80 (2007) (finding sufficient
evidence of armed robbery when defendant threatened victim with
gun, took her purse, and then quickly returned purse); State v.
Bellamy, 159 N.C. App. 143, 145, 148-49, 582 S.E.2d 663, 665-66,
667-68 (2003) (holding evidence sufficient to prove armed
robbery when defendant grabbed videos, fled, and, during chase,
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threatened victim with knife, but officers shortly thereafter
stopped defendant and recovered videos). Defendant has,
therefore, failed to demonstrate any prejudice from the lack of
a written amendment to the indictment.
No error.
Judges ELMORE and DILLON concur.
Report per Rule 30(e).