State v. Parker
| Decision Date | 01 December 2020 |
| Docket Number | No. COA18-1175,COA18-1175 |
| Citation | 852 S.E.2d 638 |
| Parties | STATE of North Carolina v. Dezmeion Dubwha PARKER |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Special Deputy Attorney General M. Denise Stanford, for the State.
Gilda C. Rodriguez, for defendant-appellant.
Defendant Dezmeion Dubwha Parker appeals from judgments entered upon his convictions for robbery with a dangerous weapon, second-degree kidnapping, possession of a firearm by a felon, and attaining the status of a habitual felon. On appeal, Defendant argues: first, that the State presented insufficient evidence that Defendant "personally" effected the victim's unlawful removal from one place to another, and therefore, the trial court erred by denying his motion to dismiss the second-degree kidnapping charge; and second, that his trial attorney rendered ineffective assistance of counsel by failing to stipulate to Defendant's prior conviction for the purpose of establishing his status as a felon for the charge of possession of a firearm by a felon.
After careful review, we conclude that Defendant received a fair trial, free from error. However, because the appellate record is insufficient to enable full and fair review of Defendant's claim for ineffective assistance of counsel, we dismiss that portion of his appeal without prejudice to Defendant's right to reassert his claim in a subsequent motion for appropriate relief filed in the trial court.
The evidence presented at trial, taken in the light most favorable to the State, tended to show the following:
Defendant met Zaquinton Best, the victim in this case, sometime in or around the summer of 2016, while Best was living with his half-brother. At that time, Best had a vehicle, and he would "drive [Defendant] around whenever he needed to go somewhere." Defendant and Best became "cousin[s] by marriage" soon thereafter.
In April 2017, Best's car was in the shop with a blown head gasket, so he took the bus to class at Nash Community College while his vehicle was under repair. On 26 April 2017, Best saw Defendant at the bus station, and they began talking. Defendant said that he had recently acquired a vehicle; he gave Best his phone number and told Best to call whenever he needed a ride.
The next day, on 27 April 2017, Best called Defendant and asked him for a ride to Walmart, and then to the Community College. Best told Defendant that he planned to cash a check at Walmart, and that he intended to use the money to pay bills and school fees, and to get his car out of the shop. Defendant agreed to give Best a ride, and they, joined by Defendant's girlfriend, traveled to Walmart.
Best entered Walmart alone and cashed his check. When he returned to the car approximately ten minutes later, Defendant informed him that "he had to make a quick stop somewhere" before he took Best to the Community College. Best asked where they were going, and Defendant answered that "he was going to show [Best]." Defendant was driving at that time, and he instructed Best to get in the backseat of the vehicle; Best trusted Defendant, so he complied and "just sat back."
After a while, however, Best realized that they were driving in the wrong direction from the Community College, and his concerns mounted as the area became less recognizable to him. But whenever Best requested further details about their destination for this unexpected detour, Defendant only said, noncommittally, that "he was going to show [Best]."
The vehicle eventually stopped on a secluded dirt road, surrounded by cotton fields and beehive boxes, in a remote area comprising "nothing but open land" more than 20 miles away from the Walmart (and in the opposite direction from the Community College). Defendant exited the vehicle, pointed a gun at Best, and ordered him to get out of the car. Defendant demanded that Best "give [him] everything" that he had, and Best surrendered the cash that he had been storing in his sock; Defendant, however, told Best that he knew that he had more money on him, and he instructed Best to remove his clothes. With Defendant's gun still in his face, Best "strip[ped] down" to his "underclothes" and surrendered additional cash. Defendant took Best's cell phone, conducted a final pat-down search for any remaining cash, and then he and his girlfriend drove away, leaving Best alone in an isolated and unfamiliar area, and without any means to seek help. All told, Defendant took from Best $998 in cash, an iPhone, and a bookbag containing, inter alia , Best's basketball shoes, as well as textbooks valued at approximately $1,500.
Once Best felt sure that his assailants were gone, he got dressed and started walking. Although Best attempted to hitchhike and "had [his] thumb out" as he walked, he estimated that he nevertheless traveled "about a good ten miles before somebody finally picked [him] up." The driver encouraged Best to report the incident and helped him to contact Detective Matthew Johnson of the Edgecombe County Sheriff's Office.
After Best recounted the events, Detective Johnson's immediate "priority was to locate the crime scene," and he enlisted Best's assistance. Navigating from the backseat of Detective Johnson's vehicle, Best used street signs to direct Detective Johnson "straight to the site." Upon arrival, Detective Johnson observed "fresh tire marks" in the dirt path.
Best provided Detective Johnson with a physical description of the robber, who Best identified as "a cousin," but declined to name. Best's father and grandmother subsequently provided Detective Johnson with Defendant's "complete identity," including his full name and a physical description consistent with that provided by Best.
At Detective Johnson's request, on 23 May 2017, Detective Wade Spruill, Jr., administered a photo lineup to Best. From an array of six photographs of different individuals, Best quickly identified Defendant as the perpetrator of the offenses against him.
On 24 May 2017, a magistrate issued arrest warrants charging Defendant with (i) robbery with a dangerous weapon, (ii) second-degree kidnapping, and (iii) possession of a firearm by a felon. On 7 August 2017, a grand jury returned true bills of indictment formally charging Defendant with the same offenses, along with an additional charge of attaining the status of a habitual felon.
Defendant's case came on for a jury trial in Edgecombe County Superior Court on 26 February 2018, the Honorable Walter H. Godwin, Jr., presiding. At the conclusion of all the evidence, the jury returned verdicts finding Defendant guilty of the three substantive offenses. Defendant subsequently pleaded guilty to attaining the status of a habitual felon. The trial court entered judgments sentencing Defendant to three consecutive terms of 75-102 months in the custody of the North Carolina Division of Adult Correction, with 266 days’ credit for time served.
Defendant appeals.
On appeal, Defendant argues that (1) the trial court erred in denying his motion to dismiss the second-degree kidnapping charge; and (2) Defendant was denied effective assistance of counsel due to his attorney's failure to enter into the record Defendant's stipulation to his prior conviction for felony larceny from the person. We address each issue in turn.
Defendant first argues that the trial court erred by denying his motion to dismiss the second-degree kidnapping charge because the State presented insufficient evidence of the essential element of "removal." We disagree.
Upon a criminal defendant's motion to dismiss, State v. Barnes , 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (citation 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).
State v. Scott , 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002) (citations omitted). "The test for sufficiency of the evidence is the same whether the evidence is direct or circumstantial or both." Id. "Once the court decides that a reasonable inference of [the] defendant's guilt may be drawn from the circumstances, then it is for the jury to decide whether the facts, taken singly or in combination, satisfy it beyond a reasonable doubt that the defendant is actually guilty." Id. (citation and internal quotation marks omitted).
Moreover, in "ruling on a motion to dismiss, the trial court should be concerned only about whether the evidence is sufficient for jury consideration, not about the weight of the evidence." Id. at 596–97, 573 S.E.2d at 869. The trial court must consider "[b]oth competent and incompetent evidence." Id. at 596, 573 S.E.2d at 869 (citation omitted). The defendant's evidence, however, Id. (citations and internal quotation marks omitted).
On appeal, we conduct de novo review of the trial court's denial of a criminal defendant's motion to dismiss. State v. Smith , 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).
We must first address the State's contention that Defendant waived appellate review of his challenge to the trial court's denial of his motion to dismiss. The State notes...
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