State v. Faison
| Decision Date | 05 July 2011 |
| Docket Number | NO. COA10-1236,COA10-1236 |
| Parties | STATE OF NORTH CAROLINA v. GEORGE KEVIN FAISON |
| Court | North Carolina Court of Appeals |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Appeal by defendant from judgment entered 24 February 2010 by Judge Jay D. Hockenbury in Sampson County Superior Court. Heard in the Court of Appeals 23 March 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General W. Richard Moore, for the State.
McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III, and Kirby H. Smith, III, for defendant-appellant.
George Kevin Faison ("defendant") appeals a judgment entered upon a jury verdict finding him guilty of felonious breaking and entering by aiding and abetting, felonious larceny by aiding and abetting, and felonious possession of stolen goods. We find no error at trial and remand to amend the judgment.
At 6:50 a.m. on 16 June 2009, LeRoy Washington ("Washington") departed for work from his residence at 133 Capers Walk in Clinton, North Carolina. Washington's girlfriend, Tallasha Jacobs ("Jacobs"), her sister, and her niece, Ebony Jacobs ("Ebony") (collectively, "the women"), remained in the residence until 12:35 p.m. When they left, they locked the door. While driving to their destination, Jacobs observed a woman, later identified as Christina Shipway ("Shipway"), driving a blue Cadillac ("the vehicle") in the opposite direction. Jacobs recognized Maurice Steer ("Steer") in the passenger seat of the vehicle because he was Ebony's boyfriend. In addition, Jacobs had ordered Steer, later identified as defendant's cousin, to leave the residence the day before.
Twenty minutes later, the women returned to the residence and the back door was unlocked and open. Jacobs called 911 and also called Washington. By the time Deputy Clark Wilkes ("Deputy Wilkes") of the Sampson County Sheriff's Department ("SCSD") responded to investigate, Washington had arrived. Washington and Jacobs told Deputy Wilkes that Shipway and ThomasLamb ("Lamb"), the father of Ebony's child, were possible suspects because Washington and Jacobs saw Shipway and Lamb in a blue Cadillac outside their residence the previous day.
Deputy Wilkes observed the rear door of the residence had been pried open. Washington told Deputy Wilkes several items were missing: two television sets, a computer, and a surround sound system. One of the missing televisions, a fifty-inch flat-screen, was so large that when Washington had it installed, "[it] took two people to carry it in." The total value of all the missing items exceeded $4,700.00.
Detective Dewayne Barber ("Detective Barber"), of the SCSD, investigated the case by interviewing defendant, Shipway, Steer, and Lamb. Defendant was arrested and indicted for felonious breaking and entering by aiding and abetting, felonious larceny by aiding and abetting, and felonious possession of stolen goods. He was subsequently indicted for attaining the status of an habitual felon.
The case was heard before the 22 February 2010 Criminal Session of Sampson County Superior Court. On 24 February 2010, the jury found defendant guilty of aiding and abetting a felonious breaking or entering, aiding and abetting a felonious larceny, and possession of stolen goods. Defendant then pledguilty to attaining the status of an habitual felon. The trial court sentenced defendant to a minimum term of 101 months to a maximum term of 131 months in the custody of the North Carolina Department of Correction. Defendant appeals.
Defendant argues that the trial court erred by allowing the State to offer hearsay statements from Shipway into evidence, but denying defendant the same opportunity. We disagree.
"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C. Gen. Stat. § 8C-1, Rule 801(c) (2009). "Hearsay statements that do not meet a statutory exception are presumptively unreliable and inadmissible." State v. Wilkerson, 363 N.C. 382, 420, 683 S.E.2d 174, 197 (2009), cert. denied, Wilkerson v. North Carolina, _ U.S. _, 130 S. Ct. 2104, 176 L. Ed. 2d 734 (2010).
[T]he law wisely permits evidence not otherwise admissible to be offered to explain or rebut evidence elicited by the defendant himself. Where one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially.
State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981).
In the instant case, Detective Barber testified at trial for the State. He testified on direct examination that Washington told him Shipway and Lamb were at his residence on 15 June 2009, the day before the incident. Detective Barber also testified that he interviewed Shipway, who did not testify at trial.
On re-cross examination by defendant, Detective Barber was asked if Shipway told him she drove defendant and Steer to Washington's residence and Detective Barber replied in the affirmative. On further re-direct examination by the State as to what Shipway told him about defendant, defendant objected. However, the trial court overruled the objection, stating that defendant "opened the door to this concerning the actions of . . . Ms. Shipway." Detective Barber then testified that during his interview with Shipway, she said that defendant told her on the day of the incident, "Sit tight, Shorty, I'm going in to help my cousin bring the stuff out." Furthermore, Detective Barber testified that Shipway told him that defendant "then went in the sliding glass door and he and his cousin were carrying a big flat screen TV."
Defendant does not argue that the trial court erred by allowing Shipway's hearsay statements into evidence based on the "opening the door" theory. Instead, he argues that he should have been allowed to rebut those statements with other hearsay statements from Shipway based on the same theory. Defendant argues that Lamb told Detective Barber that Shipway told him that she "did a lick" at Washington's residence, that "a lick is street slang for a robbery," and that she subsequently drove Steer to Fayetteville to dispose of the stolen items.
However, under the "opening the door" theory, when a party "opens the door" as to a particular fact or transaction, the other party then "walks through the door" by introducing evidence to explain or rebut that fact or transaction. Once the second party "walks through the door," the door shuts. Otherwise, there would be an infinite number of rebuttals by each party. Therefore, the trial court properly overruled defendant's objection.
Furthermore, even assuming arguendo that defendant was allowed to rebut Shipway's statements to Detective Barber with Shipway's statements to Lamb, any error was harmless error. Defendant contends that Shipway's second statement to Lamb -that Shipway "did a lick" with Steer at Washington's residenceand subsequently drove Steer to Fayetteville to dispose of the stolen items - demonstrates that defendant "was not implicated in this statement by Christina Shipway" and that Shipway had "actual knowledge of these crimes at Mr. Washington's at the time the crimes were being committed." However, this subsequent hearsay statement by Shipway does not contradict or explain her earlier statement to Detective Barber that defendant told her, "Sit tight, Shorty, I'm going in to help my cousin bring the stuff out," while they were in the car at Washington's residence. This statement implicates defendant in the crimes, and Shipway's subsequent hearsay statements do not explain or rebut it. Defendant's issue on appeal is overruled.
Defendant argues that the trial court erred when it denied his motion to dismiss the charges of felonious breaking and entering, felonious larceny, and felonious possession of stolen goods. We disagree.
"This Court reviews a trial court's denial of a motion to dismiss criminal charges de novo, to determine '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.'"State v. Davis, _ N.C. App. _, _, 678 S.E.2d 385, 388 (2009) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)), affirmed in part, reversed in part on other grounds, and remanded, 364 N.C. 297, 698 S.E.2d 65 (2010). "Substantial evidence is evidence that a reasonable mind might find adequate to support a conclusion." State v. Hargrave, _N.C. App. _, _, 680 S.E.2d 254, 261 (2009). "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[.]" Powell, 2 99 N.C. at 99, 261 S.E.2d at 117.
"[C]ontradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve[.]" State v. Prush, 185 N.C. App. 472, 478, 648 S.E.2d 556, 560 (2007). "The test of the sufficiency of the evidence to withstand the motion is the same whether the evidence is direct, circumstantial or both." Powell, 299 N.C. at 99, 261 S.E.2d at 117.
When the motion . . . calls into question the sufficiency of circumstantial evidence, the question for the [C]ourt is whether a reasonable inference of defendant's guilt may be drawn from the circumstances. If so, it is for the jury to decide whether the facts, taken singly or in combination,satisfy them beyond a reasonable doubt that the defendant is actually guilty.
State v. Rowland, 263 N.C. 353, 358, 139 S.E.2d 661, 665 (1965). "If a jury could...
To continue reading
Request your trial