State Carolina v. Deante Octario Howard.

• Citation: 715 S.E.2d 573
• Decision Date: 06 September 2011
• Docket Number: No. COA10–1273.,COA10–1273.
• Parties: STATE of North Carolinav.Deante Octario HOWARD.
• Court: North Carolina Court of Appeals

715 S.E.2d 573

STATE of North Carolina

v.Deante Octario HOWARD.

No. COA10–1273.

Court of Appeals of North Carolina.

Sept. 6, 2011.

Appeal by defendant from judgment entered 19 May 2010 by Judge R. Stuart Albright in Randolph County Superior Court. Heard in the Court of Appeals 11 May 2011.

Attorney General Roy Cooper, by N.C. Department of Justice Deputy Director Caroline Farmer, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for defendant-appellant.

STEELMAN, Judge.

Evidence of the Daddy Rabbit's break-in was properly admitted under the “course of conduct” or “complete story” exception. The evidence admitted under the “course of conduct” exception was also properly admitted under North Carolina Rule of Evidence 403. Detective Shuler was properly allowed to give lay opinion testimony relating to items stolen from Wal–Mart, the appearance of blood, and the matching of wood panel fragments. Where Detective Shuler had more familiarity than the jury with defendant's appearance at the time of the crime, he was properly allowed to identify defendant on a Wal–Mart surveillance video. Where defendant did not object at trial, we find no plain error in the authentication and compliance with the “best evidence rule” of some of the State's evidence at trial. Where there was overwhelming evidence of defendant's guilt, the trial court properly denied defendant's motion to dismiss. Where we found that there was no plain error as to each of defendant's prior arguments, and the evidence of defendant's guilt was overwhelming, there can be no cumulative error that deprived defendant of a fair trial.

I. Factual and Procedural History

At approximately 12:50 a.m. on the morning of 13 October 2008, a black male approached Sandra Pennington (Pennington) as she attempted to enter her room at the Innkeeper Hotel in Archdale. He produced a silver snub nosed revolver and demanded that Pennington give him money or he would “pop three in [her].” Pennington refused but offered her laptop computer. The man then took her laptop computer, camcorder, and wallet which contained credit cards, approximately fifty dollars cash, Pennington's driver's license, and the social security cards of herself and her two children.

Around 4:30 a.m. a citizen reported a break-in at Daddy Rabbit's gun store in Lexington, located approximately eleven miles from Archdale. After reviewing the inventory, it was discovered that a laptop computer and a rifle had been stolen. The suspect was reported to be driving an Isuzu Rodeo automobile and was followed by a citizen to an apartment located at 109 Oak Hill Drive, Lexington, belonging to Amanda Ebert. Detective Derrick Shuler (Detective Shuler) went to Ebert's apartment to investigate. Deante Octario Howard (defendant) was apprehended at Ebert's apartment.

Ebert gave the police consent to search her apartment and her Isuzu Rodeo automobile. The search yielded several bags of Wal–Mart merchandise, two laptop computers, a rifle, and some bloody clothing. The owner of Daddy Rabbit's verified that the serial number of the laptop computer taken from his store matched one of the laptop computers located at Ebert's apartment. A tag from Daddy Rabbit's with the rifle's serial number on it was found in defendant's pocket, along with Pennington's social security card.

The second laptop computer was determined to belong to Pennington. Upon contacting Pennington, Detective Shuler learned of the earlier robbery in Archdale. Receipts for the Wal–Mart merchandise were found in the bags, and the last four digits of the credit card number shown on the receipts were identical to the last four digits of one of the credit cards taken from Pennington. After establishing that the Wal–Mart items were likely purchased with a stolen credit card, Detective Shuler obtained the surveillance video from Wal–Mart and identified defendant as the individual who made the purchases. Detective Shuler further noted that the clothing defendant was wearing in the surveillance video was the same clothing located at Ebert's apartment, with blood on it. The Wal–Mart purchases were made at approximately 4:00 a.m.

A search of the Isuzu Rodeo automobile revealed blood and paneled board that matched the area broken to gain entry into Daddy Rabbit's.

On 13 October 2008, defendant was indicted for the robbery of Pennington with a dangerous weapon. After deliberating for seven minutes, the jury found defendant guilty as charged. The court found the defendant to be a prior felony record level V with sixteen prior record points. Defendant was sentenced to an active term of imprisonment of 133 to 169 months.

Defendant appeals.

II. Course of Conduct

In his first argument, defendant contends the trial court erred in admitting evidence of the Daddy Rabbit's break-in. We disagree.

A. Admissibility of the Evidence

i. Standard of Review

Defendant failed to object to this evidence at trial. Our review of this argument is limited to plain error.

In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.

N.C. R.App. P. 10(a)(4). “In order to show plain error, a defendant must show that absent the error the jury probably would have reached a different verdict.” State v. Riley, 159 N.C.App. 546, 551, 583 S.E.2d 379, 383 (2003) (quotation omitted). Plain error only applies when “the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quotation omitted).

ii. Analysis

[A]dmission of evidence of a criminal defendant's prior bad acts, received to establish the circumstances of the crime on trial by describing its immediate context, has been approved in many other jurisdictions following adoption of the Rules of Evidence. This exception is known variously as the “same transaction” rule, the “complete story” exception, and the “course of conduct” exception. Such evidence is admissible if it forms part of the history of the event or serves to enhance the natural development of the facts. We similarly hold that the “chain of circumstances” rationale established in our pre-Rules cases survives the adoption of the Rules of Evidence.State v. Agee, 326 N.C. 542, 547–48, 391 S.E.2d 171, 174 (1990) (citations and quotations omitted). The Supreme Court of North Carolina has held “that evidence of ‘other wrongs' is admissible for the purpose, not enumerated in Rule 404(b) itself, of ‘complet[ing] the story of a crime by proving the immediate context of events near in time and place.’ ” See Id. at 349–50, 391 S.E.2d at 175 (citations omitted).

The evidence from the Daddy Rabbit's break-in was properly admitted by the trial court under the “course of conduct” or “complete story” exception. The evidence was necessary for the jury to be able to understand how defendant was identified as the perpetrator of the Pennington robbery, and how items stolen from Pennington and purchased with a credit card stolen from Pennington were recovered. The Daddy Rabbit's break-in evidence was necessary for the jury to understand the complete story and timeline of the events that took place on the night in question, and therefore was properly admitted under the “course of conduct” exception.¹

B. Admissibility Under Rule 403 Standard

Defendant further argues that the trial court erred in admitting the Daddy Rabbit's evidence because the probative value of the evidence, particularly defendant's bloody clothing, did not substantially outweigh its potential for unfair prejudice.

North Carolina Rule of Evidence 403 states “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” N.C. Gen.Stat. § 8C–1, Rule 403 (2009). “Whether to exclude evidence under Rule 403 is a matter left to the sound discretion of the trial court.... Evidence which is probative of the State's case necessarily will have a prejudicial effect upon the defendant; the question is one of degree.” Agee, 326 N.C. at 550, 391 S.E.2d at 176 (quoting State v. Coffey, 326 N.C. 268, 281, 389 S.E.2d 48, 56 (1990)).

The trial court did not err in admitting evidence relating to defendant's break-in at Daddy Rabbit's under Rule 403. The bloody clothing found at Ebert's apartment helped Detective Shuler to identify defendant as the individual who made purchases with a credit card stolen from Pennington at Wal–Mart, because that clothing was worn by defendant when he made the Wal–Mart purchases. The fact that blood was found on the clothing was a necessary detail for the jury to understand why this clothing appeared significant to the police when they searched the apartment, and to connect the clothing to the Daddy Rabbit's break-in. The evidence was necessary to provide the jury with a complete narrative of the events that took place. This evidence was not unfairly prejudicial, and the trial court did not abuse its discretion in admitting the evidence of the Daddy Rabbit's break-in, including the bloody clothing, under Rule 403.

Defendant also complains of Detective Shuler testifying concerning defendant wearing dark clothing in another investigation. This testimony was in response to a question from defendant's counsel as to whether Detective Shuler ever saw defendant with a black hooded sweatshirt “during any of your investigation.” Since this was in response to a question from defendant's own counsel, which was less than artfully worded, and did not in any way...