State v. McLean
| Decision Date | 07 February 2017 |
| Docket Number | No. COA16-484,COA16-484 |
| Citation | 251 N.C.App. 850,796 S.E.2d 804 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. James MCLEAN |
Attorney General Joshua H. Stein, by Assistant Attorney General Kenneth Sack, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant.
James McLean ("defendant") appeals from judgments entered upon his convictions of assault with a deadly weapon inflicting serious injury, robbery with a dangerous weapon, and discharging a firearm from within a building with the intent to incite fear. On appeal, defendant argues that judgment entered upon his conviction for discharging a firearm within a building with the intent to incite fear must be vacated, the trial court erred by denying his motion to dismiss the robbery with a dangerous weapon charge, the trial court erred by allowing Lieutenant Jason Butler to vouch for the credibility of a victim, the trial court erred by allowing Shaquana McInnis to provide testimony amounting to inadmissible hearsay, and the trial court erred by assessing a fee against defendant to pay for the State's expert witness. For the reasons stated herein, we hold no error in part and vacate in part.
On 27 October 2014, defendant was indicted for the following: attempted first degree murder in violation of N.C. Gen. Stat. § 14–17 ; assault with a deadly weapon with intent to kill inflicting serious injury in violation of N.C. Gen. Stat. § 14–32(a) ; robbery with a dangerous weapon in violation of N.C. Gen. Stat. § 14–87 ; and, discharging a firearm within an enclosure to incite fear in violation of N.C. Gen. Stat. § 14–34.10.
Defendant's trial commenced at the 12 October 2015 criminal session of Scotland County Superior Court, the Honorable James M. Webb presiding. The State's evidence tended to show as follows: On 25 April 2014, approximately nine people, including the State's witnesses Rodrigues McRae ("McRae"), Vincent Smith ("Smith"), John Shaw ("Shaw"), Acey Braddy ("Braddy"), and Shaquana McInnis ("McInnis"), were playing cards in a cinder-block building behind a residence located at 508 Morris Street in Laurinburg, North Carolina. Sometime between 3:00 and 4:00 a.m., four individuals, each armed, entered the building. Three of the intruders had on masks and one was unmasked. The unmasked man said, "Don't move[ ]" and The unmasked man then fired two shots. Braddy was shot in his chest and said McRae and Braddy identified the unmasked shooter who shot Braddy as defendant.
Defendant ordered everyone to "get facedown on the ground and take our clothes off[ ]" and then said, "Give me all your money." Braddy testified that the three masked intruders "just stood like soldiers[ ]" while defendant "did everything by hisself [sic]." McRae testified that "I just took my pants and my wallet and everything, and my keys and my cell phone, and just gave it all to them." The following items were taken from the State's witnesses: a cell phone and twenty dollars from Smith; $800.00 from Shaw; a cell phone and money from Braddy; and "a couple hundred dollars" from McInnis. The testimony from Smith, Shaw, and McInnis corroborated Braddy and McRae's testimony.
Lieutenant Jason Butler ("Lieutenant Butler") from the Laurinburg Police Department testified that in the early morning hours of 26 April 2014, he was dispatched to Scotland Memorial Hospital in reference to a gunshot wound
. Lieutenant Butler was directed to a trauma room where he interviewed Braddy. Braddy had suffered a single gunshot wound. Braddy informed Lieutenant Butler that he was playing cards with several people when four people ran into the room, three of them wearing masks, and one of them made the statement, "Y'all killed my brother.
I'm going to terrorize you n****** in Laurinburg." Braddy stated that the intruders ordered them "to take their clothes off and lay on the ground, where some cash and cell phones and things like that were taken from them." As the intruders were exiting, Braddy heard a gunshot and felt pain in his back. Braddy told Lieutenant Butler that the unmasked person was "the brother of Chris McKoy." Lieutenant Butler testified that Braddy
Officer Merica Zabitosky ("Officer Zabitosky"), who was employed with the City of Laurinburg, interviewed Braddy later that morning on 26 April 2014. Braddy identified defendant as the masked shooter, gave a description of defendant's appearance, and stated that defendant "[l]ook[ed] just like his brother Chris McKoy[.]"
At trial, McInnis testified that after the robbery, she was incarcerated. While in a holding cell with a few other females, she heard one of the females having a conversation with a man in a nearby cell. The man wanted to know the identity of all the females in the cell. McInnis provided her name and the man said through the cell wall, "You wrote a statement against me[.]" McInnis testified that she recognized the voice as that of the unmasked shooter from the 26 April 2014 robbery. McInnis responded that she did not write a statement and the male voice said "that they were going to put him in a cell with me, and ‘We'll see what you say then.’ " McInnis testified that she asked the jailer whether "James McLean" was in there and "she did say he was in there." McInnis testified that because of this incident, she was scared to testify.
On 15 October 2015, a jury found defendant not guilty of attempted first degree murder. The jury found defendant guilty of assault with a deadly weapon inflicting serious injury, robbery with a firearm, and discharging a firearm from within a building with the intent to incite fear.
Defendant was sentenced as a prior record level IV to 38 to 58 months for his assault with a deadly weapon inflicting serious injury conviction, 97 to 129 months for his robbery with a dangerous weapon conviction, and 25 to 39 months for discharging a firearm from within a building with the intent to incite fear conviction.
Defendant appeals.
Defendant presents five issues on appeal. We address each in turn.
In his first argument on appeal, defendant contends that the judgment entered upon his conviction for discharging a firearm within an enclosure to incite fear must be vacated because the indictment was insufficient to charge defendant with that crime. The State concedes and we agree.
"This Court reviews the sufficiency of an indictment de novo ." State v. Mann , 237 N.C.App. 535, 539, 768 S.E.2d 138, 141 (2014). "[A] valid bill of indictment is essential to the jurisdiction of the trial court to try an accused for a felony." State v. Miranda , 235 N.C.App. 601, 605, 762 S.E.2d 349, 353 (2014) (citation omitted). "An indictment for a statutory offense is sufficient, as a general rule, when it charges the offense in the language of the statute." State v. Penley , 277 N.C. 704, 707, 178 S.E.2d 490, 492 (1971).
Here, the "discharging a firearm within enclosure to incite fear" indictment charged that (emphasis added).
N.C. Gen. Stat. § 14–34.1(a) (2015) (emphasis added).
The indictment in question attempted to charge defendant of violating N.C. Gen. Stat. § 14–34.10 but failed to accurately and sufficiently charge that offense. Instead, the indictment alleged that defendant discharged a firearm "into" an occupied structure. As such, we hold that the indictment was insufficient to confer jurisdiction upon the trial court. Defendant's judgment entered upon his conviction for discharging a firearm from within a building with the intent to incite fear is vacated.
In the second issue on appeal, defendant contends that the trial court erred by denying his motion to dismiss the robbery with a dangerous weapon charge. Specifically, defendant argues that there was insufficient evidence that he committed a taking from Braddy's person or presence. We disagree.
Our Court reviews de novo the trial court's motion to dismiss. State v. Bagley , 183 N.C.App. 514, 523, 644 S.E.2d 615, 621 (2007). "A trial court should deny a motion to dismiss if, considering the evidence in the light most favorable to the State and giving the State the benefit of every reasonable inference, there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Lawson , 194 N.C.App. 267, 278, 669 S.E.2d 768, 775–76 (2008) (internal quotation marks and citation omitted). "Substantial evidence is such relevant evidence...
To continue reading
Request your trial
-
James v. Brickhouse
...State v. Small, 328 N.C. 175, 181, 400 S.E.2d 413, 416 (1991); See N.C. Gen. Stat. Ann. § 14-87; see also State v. McLean, 251 N.C. App. 850, 855, 796 S.E.2d 804, 808 (2017); State v. Hill, 365 N.C. 273, 275, 715 S.E.2d 841, 843 (2011). Accordingly, the value of the goods is not an essentia......
- State v. Glisson
-
Perry v. Bank of Am., N.A.
...We reverse the portion of the trial court's order dismissing the Perrys' claim under the North Carolina Uniform Declaratory Judgment Act.796 S.E.2d 804AFFIRMED IN PART; REVERSED IN PART AND REMANDED.Judges HUNTER, JR. and McCULLOUGH concur.--------Notes:1 In this appeal, the Perrys do not c......