State v. Bass
| Decision Date | 05 March 2013 |
| Docket Number | No. COA12–828.,COA12–828. |
| Parties | STATE of North Carolina v. Devacea Navarea BASS, Defendant. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by defendant from judgment entered 27 January 2012 by Judge Henry W. Hight, Jr. in Durham County Superior Court. Heard in the Court of Appeals 10 December 2012.
Roy Cooper, Attorney General, by Kathleen M. Waylett, Assistant Attorney General, for the State.
Kimberly P. Hoppin, for defendant.
Defendant Devacea Navarea Bass was charged in true bills of indictment with robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. A jury found defendant guilty of both charges. Judgment was entered upon the jury's verdict sentencing defendant to not less than 73 months and not more than 97 months of imprisonment for robbery with a dangerous weapon, and a consecutive term of not less than 29 months and not more than 44 months of imprisonment for conspiracy to commit robbery with a dangerous weapon.
The evidence at trial tended to show that on 17 May 2011 Elder Alonso Flores Perez (“Mr.Flores”), the manager of Cash Converters on Roxboro Road in Durham, left work around 7:10 or 7:15 in the evening, driving his father's Ford Explorer. Mr. Flores was carrying $2000 in cash, withdrawn from his personal bank account. Mr. Flores stopped at the Koumi Restaurant, approximately one minute's drive away, to get something to eat. After Mr. Flores parked in the restaurant parking lot, he noticed a gray Honda Accord with black rims backed into a parking space, about twelve to fifteen feet to his left. It was still daylight outside and Mr. Flores observed four individuals inside the Accord. Mr. Flores identified defendant as the driver of the vehicle. Mr. Flores recognized defendant as an associate of Bobbie Deontre “Tray” Wyche and Derrick Lamont Dixon, both of whom were also seated in the Accord. Mr. Flores did not recognize the fourth individual seated in the Accord. Mr. Flores recognized Wyche, Dixon, and defendant because they had been to Cash Converters earlier that day and on prior occasions.
Mr. Flores observed Wyche walk behind Mr. Flores's Explorer and around to the passenger side, at which point he opened the front passenger door and climbed inside. Wyche took out a revolver and pointed it at Mr. Flores, who was still seated in the driver's seat, and said, “Sorry, give us everything you have.” Dixon then approached the driver's door of the Explorer, opened it, and pointed a revolver at Mr. Flores's stomach, saying, “Give us everything you have or I'm going to kill you.” Mr. Flores exited the vehicle and the unidentified individual approached Mr. Flores from behind, touching Mr. Flores's back and wallet. Mr. Flores placed his wallet and the two thousand dollars cash on the driver's seat and walked away, leaving the keys in the ignition. Mr. Flores testified that during the robbery, defendant remained in the Honda Accord. Mr. Flores did not recall whether defendant looked in his direction.
Mr. Flores observed Dixon drive off in his Explorer, with Wyche in the passenger seat. The unidentified individual got back into the Accord with defendant. Mr. Flores testified that he had turned the Explorer's ignition off, but that he could not recall hearing the Explorer being started again by Dixon. Mr. Flores also testified that he “didn't hear [the Accord] come on,” but he saw it move and follow his Explorer. Both vehicles turned onto Roxboro Road, traveling the same direction. The Accord—still driven by defendant—followed immediately behind the Explorer as it turned onto an adjacent road.
As part of a subsequent police investigation of the robbery, Mr. Flores was shown several photo lineups. Mr. Flores picked defendant's photo out of the lineup and remarked that he was “100% sure” that defendant was “the driver.” Photo lineup images of Wyche and Dixon were also identified by Mr. Flores with “100%” certainty.
The day after the robbery, the Durham Police Department conducted a traffic stop of a vehicle because the rear brake lights were not working. Defendant was a passenger in the vehicle and Dixon was driving. Testimony at trial tended to show that this vehicle was the same Honda Accord used in the robbery of Mr. Flores. Testimony at trial also indicated the Honda Accord “was stolen in a carjacking robbery.” Mr. Flores identified photos of the recovered Honda Accord as the car used in the robbery.
Defendant did not offer evidence but allowed his attorney to admit that he was the driver of the Honda Accord and that he was present at the robbery. However, defendant argued that he was unaware of any plans to rob Mr. Flores and that he did not take part in the robbery. Defendant appeals.
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Defendant first argues the trial court erred “by allowing evidence that the Honda driven by [defendant] was taken pursuant to an earlier ‘carjacking robbery.’ “ Defendant contends the evidence was not admissible under N.C.R. Evid. 404(b). While defendant made a pretrial motion to exclude all “prior acts committed [before] the date of the crime,” he did not secure a ruling on that motion, nor did he object to the challenged testimony at trial. Therefore, the standard of review is plain error. SeeN.C.R.App. P. 10(a)(4); see also State v. Rourke, 143 N.C.App. 672, 675, 548 S.E.2d 188, 190,cert. denied,354 N.C. 226, 553 S.E.2d 396 (2001).
“For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial.” State v. Lawrence, 365N.C. 506, ––––, 723 S.E.2d 326, 334 (2012) (citing State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)). A fundamental error is one where “after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty.” Id. at ––––, 300 S.E.2d 375, 723 S.E.2d at 334 (internal quotation marks omitted). The burden of demonstrating the existence of this prejudice is on the defendant. Id. at ––––, 723 S.E.2d at 333 (citing State v. Melvin, 364 N.C. 589, 593–94, 707 S.E.2d 629, 632–33 (2010)). Plain error is to be “applied cautiously and only in the exceptional case,” where “the error will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. at ––––, 707 S.E.2d 629, 723 S.E.2d at 334 (citations and internal quotation marks omitted).
N.C.R. Evid. 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” N.C. Gen.Stat. § 8C–1, Rule 404(b) (2011). However, the evidence may “be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” Id. The enumerated list of permissible purposes in the rule is not exclusive, State v. Bagley, 321 N.C. 201, 206, 362 S.E.2d 244, 247 (1987), cert. denied,485 U.S. 1036, 108 S.Ct. 1598, 99 L.Ed.2d 912 (1988), and, in fact, “other crimes, wrongs, or acts” evidence need only be “relevant to any fact or issue other than the character of the accused” to be permissible. State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d 791, 793 (1986). For the evidence to be deemed relevant, it simply must have “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C. Gen.Stat. § 8C–1, Rule 401 (2011). Even if relevant, 404(b) evidence is also “constrained by the requirements of similarity and temporal proximity.” State v. Al–Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002), appeal after new trial,359 N.C. 741, 616 S.E.2d 500 (2005). Finally, 404(b) evidence is subject to N.C.R. Evid. 403, which states, “Although 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 (2011).
Thus, this Court refers to a three-part test to determine whether the challenged evidence was correctly admitted pursuant to Rule 404(b): (1) whether the evidence is relevant for a purpose other than to show the defendant has a propensity to commit the charged offense; (2) whether that purpose is relevant to an issue material to the pending case; and (3) whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice to the defendant. State v. Foust, ––– N.C.App. ––––, ––––, 724 S.E.2d 154, 159 (2012). “We review de novo the legal conclusion that the evidence is, or is not, within the coverage of Rule 404(b).” State v. Beckelheimer, ––– N.C. ––––, ––––, 726 S.E.2d 156, 159 (2012). “We then review the trial court's Rule 403 determination for abuse of discretion.” Id.
In its brief, the State suggests several purposes—other than propensity—for which the testimony could have been correctly admitted. However, because defendant did not object to the testimony at trial, the record is devoid of the State's purpose for offering the evidence at trial. Nor is the purpose readily apparent or obvious from the record. In fact, a careful review of the trial transcript shows the State possibly did not intend to elicit the evidence at all. In questioning Detective Jones about the Honda Accord, the State asked:
Q. Did you even go to the scene where it was located?
A. No, sir, I headed after the fact.
Q. When did you learn about it?
A. That car was stolen in a carjacking robbery.
Q. So when did you find out about the recovery of this vehicle?
A. The 19th.
(Emphasis added.) Likewise, because defendant did not secure a ruling concerning his motion in limine to exclude 404(b) evidence or object to the testimony, the record is also devoid of any findings of...
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