State v. Weldon

• Decision Date: 20 February 2018
• Docket Number: No. COA 17-748,COA 17-748
• Citation: 258 N.C.App. 150,811 S.E.2d 683
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina, v. Dominique Rasheed WELDON, Defendant.

258 N.C.App. 150
811 S.E.2d 683

STATE of North Carolina,
v.
Dominique Rasheed WELDON, Defendant.

No. COA 17-748

Court of Appeals of North Carolina.

Filed: February 20, 2018

Attorney General Joshua H. Stein, by Assistant Attorney General Scott A. Conklin, Raleigh, for the State.

Richard Croutharmel, Raleigh, for defendant-appellant.

ZACHARY, Judge.

258 N.C.App. 151

Dominique Rasheed Weldon ("defendant") appeals from judgment entered on his conviction for possession of a firearm by a felon. Defendant argues that the trial court erred when it (1) admitted lay opinion testimony identifying defendant in a surveillance video,

811 S.E.2d 686

(2) permitted testimony in violation of Rules 404(b) and 403 of the North Carolina Rules of Evidence, and (3) determined that defendant's prior federal conviction of unlawful possession of a firearm was substantially similar to his current North Carolina conviction. For the reasons explained herein, we find no error.

I. Background

A Wake County grand jury indicted defendant for possession of a firearm by a felon on 4 May 2015, for habitual felon status on 21 July 2015, and for assault with a deadly weapon with intent to kill on 7 March 2016. The case was tried before a jury beginning on 21 March 2016. The relevant facts are as follows.

On 23 March 2015, defendant was shot near Martin Street in Raleigh. The Raleigh Police Department responded to the shooting and found a 9-millimeter shell casing at the scene. Defendant was transported to the

258 N.C.App. 152

hospital where Detective Bill Nordstrom attempted to interview him. Detective Nordstrom testified that defendant "wasn't too cooperative" and that "He gave a very brief statement and told us that he didn't really need the police assistance." Defendant was released from the hospital that same day.

Ten days later, on 2 April 2015, the Raleigh Police Department responded to another shooting outside some storefronts on Martin Street. Officer K. A. Thompson found six .40 caliber shell casings at the scene of the 2 April 2015 shooting. Officer Thompson also found four 9-millimeter shell casings in the parking lot across the street.

Officer Thompson contacted one of the storefront property owners in order to obtain the owner's video surveillance footage of the shooting. The surveillance video shows an individual shooting a .40 caliber handgun at another individual across the street, where the four 9-millimeter shell casings were found. State Crime Lab Technician Dana Quirindongo testified that the 9-millimeter shell casings from the 23 March 2015 shooting were fired from the same 9-millimeter firearm involved in the 2 April 2015 shooting.

When Officer Thompson viewed the surveillance video of the 2 April 2015 shooting, he identified defendant as the shooter. Officer Thompson testified that he had gotten to know defendant while patrolling his "beat" over the years. Officer Thompson first met defendant in 2008, and continued to have occasional encounters with him. In particular, Officer Thompson testified that he saw defendant just a few days after he was shot on 23 March 2015, about seven or eight days before the 2 April 2015 shooting, and that defendant was limping at the time. When asked how he was able to identify defendant in the 2 April 2015 surveillance video, Officer Thompson responded that he "saw in the video, especially a side profile of, of [defendant's] face and hair and clothing that he's wearing. I immediately recognized him by who he is, and then also he was limping." Officer Thompson testified that he was 100 percent certain that the individual in the surveillance footage was defendant.

Officer R. S. Williams also viewed the video surveillance footage. Officer Williams testified that, while he had never had any direct contact with defendant, he knew who defendant was from his "reputation on the street[.]" Officer Williams testified that he was 100 percent certain that defendant was the individual firing the .40-caliber handgun in the surveillance video.

Quentin Singletary worked at the self-service laundry in the area of the shooting. Mr. Singletary testified that he knew defendant because

258 N.C.App. 153

defendant would come into the laundry and that they would talk nearly every day. Mr. Singletary saw defendant when he came into the laundry on the morning of 2 April 2015. When Mr. Singletary heard the shots being fired later that day, he locked himself inside the laundry until police officers knocked on the door. Mr. Singletary let the officers in and the officers showed him the surveillance footage. Mr. Singletary identified defendant as the person shooting in the video and testified that defendant was wearing the same clothing in the video as Mr. Singletary had seen him wearing earlier that morning. Mr. Singletary also testified that defendant was limping when he saw him the morning of the 2 April 2015 shooting, and that he observed the same limp in the surveillance footage.

On 24 March 2016, the jury found defendant guilty of possession of a firearm by a

811 S.E.2d 687

convicted felon and assault with a deadly weapon with intent to kill. However, at defendant's sentencing, after having already denied defendant's motion to dismiss the charge of assault with a deadly weapon with intent to kill, the trial court reopened the issue and dismissed that conviction on the grounds that the indictment was fatally defective for failing to name a victim. Defendant's conviction of possession of a firearm by a felon remained. Defendant stipulated to being a habitual felon.

Defendant was designated as a prior record Level II for sentencing. Defendant had a prior federal conviction in 2010 for unlawful possession of a firearm. On the prior record level worksheet, defendant was given one point because all of the elements in the present charge of possession of a firearm by a convicted felon were present in a prior conviction. This point elevated defendant's sentencing level from a Level I to a Level II for purposes of sentencing as a habitual felon. Defendant was sentenced to 83 to 112 months' imprisonment. Defendant gave oral notice of appeal in open court.

On appeal, defendant argues (1) that the trial court abused its discretion in allowing Officer Williams to testify as to defendant's identity in the surveillance video, (2) that the trial court committed plain error when it allowed Officer Williams to testify as to the reputation and prior bad acts of defendant, and (3) that the trial court committed reversible error when it determined that defendant's current offense of possession of a firearm by a felon was substantially similar to his prior federal conviction. After careful review, we find no error.

II. Officer Williams's Identification Testimony

Defendant first argues that the trial court abused its discretion by allowing Officer Williams to testify as to defendant's identity in the

258 N.C.App. 154

surveillance video. Defendant maintains that, because Officer Williams's familiarity with defendant was based solely on what others had told him, he was in no better position than the jury to identify defendant in the surveillance footage. We do not find this argument persuasive.

A. Standard of Review

A trial court's ruling on the admissibility of lay opinion testimony is reviewed for abuse of discretion. State v. Belk , 201 N.C. App. 412, 417, 689 S.E.2d 439, 442 (2009) (citation omitted). A trial court abuses its discretion if the "ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Williams , 363 N.C. 689, 701, 686 S.E.2d 493, 501 (2009), cert. denied , 562 U.S. 864, 131 S.Ct. 149, 178 L.Ed. 2d 90 (2010) (citation and quotation marks omitted). Where the testimony at issue is the identification of a defendant as the individual depicted in surveillance footage, "we must uphold the admission of [the] lay opinion testimony if there was a rational basis for concluding that [the witness] was more likely than the jury to correctly identify [the] [d]efendant as the individual in the surveillance footage." Belk , 201 N.C. App. at 417, 689 S.E.2d at 442 (citation omitted).

B. Lay Opinion Identification Testimony

Admissible lay opinion testimony "is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to ... the determination of a fact in issue." N.C. Gen. Stat. § 8C-1, Rule 701 (2016). "Ordinarily, opinion evidence of a non-expert witness is inadmissible because it tends to invade the province of the jury." State v. Fulton , 299 N.C. 491, 494, 263 S.E.2d 608, 610 (1980). "The essential question in determining the admissibility of opinion evidence is whether the witness, through study and experience, has acquired such skill that he is better qualified than the jury to form an opinion as to the subject matter to which his testimony applies." State v. Phifer , 290 N.C. 203, 213, ...