State Carolina v. Lawrence
| Decision Date | 01 March 2011 |
| Docket Number | No. COA10–348.,COA10–348. |
| Citation | 706 S.E.2d 822 |
| Parties | STATE of North Carolinav.David Ordis LAWRENCE. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by Defendant from judgments entered on 27 October 2008 by Judge Douglas B. Sasser in Hoke County Superior Court. Heard in the Court of Appeals 28 September 2010.
Attorney General Roy Cooper, by Assistant Attorney General M. Lynne Weaver, for the State.
Parish, Cooke & Condlin, by James R. Parish, Fayetteville, for Defendant-appellant.
David Ordis Lawrence (“Defendant”) appeals from a jury verdict finding him guilty of two counts of attempted robbery with a dangerous weapon, two counts of attempted kidnapping, two counts of attempted breaking and entering, and two counts of conspiracy to commit robbery with a dangerous weapon. On appeal, Defendant argues the trial court erred in denying Defendant's motion to dismiss for insufficient evidence as to all charges except one charge of conspiracy to commit robbery with a dangerous weapon. Defendant also contends the trial court erred by instructing the jury on the law of flight as the instruction was not supported by the evidence. After careful review, we find no error in part; reverse and remand in part; grant a new trial in part; and remand for a new sentencing hearing.
The State's evidence tended to establish the following events. In late August 2008 in Orlando, Florida, Marlita Williams approached a couple of her friends about joining her in a robbery of a purported drug dealer who lived in North Carolina. When the two friends, Travis McQueen and his wife, expressed interest in the plan, Marlita told Travis that he could bring one man to assist in the robbery; Travis recruited his friend Bernard King. A few days later, Williams, the McQueens, and King traveled to Fayetteville, North Carolina and began preparations for the robbery.
Two members of the group stole several zip ties from a hardware store, with which they could bind their victim to prevent escape, and stole a car from the hardware store's parking lot for use during the robbery. After casing the homes of several potential victims, the group focused their attention on Ms. Charlise Curtis. Williams believed that a suspected drug dealer, Glenn Artis, was living with Ms. Curtis and her son and would have a significant amount of cash to steal. In order to determine what Ms. Curtis looked like and where she lived, the group stalked Ms. Curtis, observing her at her workplace and following her home to Raeford, North Carolina. They returned to Ms. Curtis' home later that evening, but drove away when neighbors became suspicious of their activities.
Having settled on Ms. Curtis as their target, the group paid a visit to Defendant to recruit him to participate in the robbery. Accepting the offer, Defendant said he was “ready to go” and brandished a semi-automatic pistol from his pocket. Williams instructed the group on their duties for the robbery: King was to be the driver and lookout, while McQueen and Defendant were to be the “muscle” of the plan who would enter the home and rob the victims. Later, Williams borrowed a pistol from a family member so that both McQueen and Defendant would be armed.
On the morning of 29 August 2008, the plan was to intercept Ms. Curtis as she was leaving her home to take her son to school, then to force her back into her home and to rob her. That morning, two men in the group prepared the get-away vehicle by replacing the license plate with a stolen plate and placing a gas can in the car. Later, they filled the gas can with gasoline with which they intended to douse the victim and threaten to set her on fire if she refused to cooperate. King, McQueen, and Defendant drove to the victim's neighborhood where Defendant and McQueen exited the car with their guns and hid in the woods near Ms. Curtis' home. King parked the car near the entrance of Ms. Curtis' driveway and slumped down in the front seat. Suspicious of this activity, two neighbors called 9–1–1. Shortly thereafter, an officer from the sheriff's office arrived on scene and pulled up behind King's car. When the officer activated his lights, King sped away, but then jumped from the car and fled on foot. As the officer gave chase, King ran into the woods to hide, where he saw Defendant and Travis McQueen. King testified that the officer then began his pursuit of Defendant and McQueen as they stashed their guns under some leaves and fled from their hiding place in the woods—“ ‘cause they see what's going on now.”
Later that afternoon, Williams, King, McQueen and his wife regrouped without Defendant and discussed whether to rob a different dealer or attempt to rob Ms. Curtis a second time. Despite the attention they drew from the neighbors and the sheriff's office, the group decided they would attempt to rob Ms. Curtis at her home again. In preparation for the second attempt, the group replaced their get-away car by stealing a truck from a mall parking lot, purchased two jump suits and masks, and two prepaid cell phones. King and McQueen returned to the woods near Ms. Curtis' home and retrieved their guns—again prompting the neighbors to call the sheriff's office.
On 30 August 2008, King, the McQueens, and Williams began looking for Defendant to execute their second attempt to rob Ms. Curtis. The group, without Defendant present, discussed robbing a different drug dealer and drove by a potential victim's home to survey the area; ultimately, they resumed the plan to rob Ms. Curtis. That evening, the group picked up Defendant and waited in a parking lot for Ms. Curtis to leave work. Upon receiving word that Ms. Curtis was on her way home, King drove Defendant and his accomplices to her neighborhood. Travis McQueen and Defendant exited the vehicle and hid in the woods close to Ms. Curtis' home while King drove to a nearby gas station to wait. Defendant and McQueen were observed by Ms. Curtis' neighbor, Robert Murray, who called 9–1–1, grabbed his pistol, and walked to Ms. Curtis' yard to investigate.
Murray proceeded to walk towards Ms. Curtis' backyard with his gun, asked Defendant and McQueen what they were doing, and both men fled. Murray alerted another neighbor that Defendant and McQueen were headed in his direction. This second neighbor stopped the two men at gun-point, but both fled again into the woods. While King was waiting in the get-away vehicle at the gas station, a police officer pulled up behind him and King sped away. After a brief chase, King crashed the vehicle and he was arrested. King cooperated with the police, providing details of the plan to rob Ms. Curtis and offered to help locate Defendant.
On 3 September 2008, the police arrested Travis McQueen and his wife, Twanda McQueen. Ms. McQueen cooperated with the police investigation and took the police to Defendant's residence. The police subsequently made numerous attempts to find Defendant and on 30 October 2008 contacted the United States Marshals Service for assistance in finding Defendant. On 8 January 2009, U.S. Marshals arrested Defendant in Lee County, Mississippi.
Defendant was indicted by a Hoke County Grand Jury on 27 October 2008 with two counts of attempted robbery with a dangerous weapon, two counts of attempted kidnapping, two counts of attempted breaking and entering, and two counts of conspiracy to commit robbery with a dangerous weapon. Defendant was tried before Judge Douglas B. Sasser in Hoke County Superior Court beginning on 27 October 2009. At the close of the State's evidence, Defendant made a motion to dismiss all charges for insufficient evidence, which the trial court denied. Defendant renewed his motion to dismiss after formally declining to testify; this motion was also denied. The jury returned guilty verdicts as to all eight charges on 3 November 2009. On 4 November 2009, Defendant was sentenced to consecutive sentences for the attempted robbery charges and the conspiracy to commit robbery with a dangerous weapon with the sentences for attempted breaking and entering to run concurrently; the trial court arrested judgment for both attempted kidnapping charges. Defendant gave oral notice of appeal.
As Defendant appeals from a final judgment, this Court has jurisdiction to hear the appeal pursuant to N.C. Gen.Stat. § 7A–27(b) (2009). We review 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). This Court, under a de novo standard of review, considers the matter anew and freely substitutes its own judgment for that of the trial court. State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008).
A defendant's motion to dismiss should be denied if “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.” State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (citations omitted). 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). When ruling on a motion to dismiss, the trial court must view the evidence in the light most favorable to the State, “making all reasonable inferences from the evidence in favor of the State.” State v. Kemmerlin, 356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002). “The trial court in considering such motions is concerned only with the sufficiency of the evidence to carry the case to the jury and not with its weight.” State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). Contradictions and discrepancies are for the jury to resolve and do not warrant dismissal. Id.
In his first and second arguments on appeal, Defendant contends that the trial court erred in failing to...
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