State v. Blackmon
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. NO. COA14-594 NORTH CAROLINA COURT OF APPEALS Filed: 16 December 2014 STATE OF NORTH CAROLINA v. Mecklenburg County No. 11CRS033155, 305-06 ERIC EVERETT BLACKMON, Defendant. Appeal by defendant from judgments entered 5 August 2013 by Judge Eric L. Levinson in Superior Court, Mecklenburg County. Heard in the Court of Appeals 9 October 2014. Attorney General Roy A. Cooper, III, by Special Attorney General Marc Bernstein, for the State. Deputy Anne Bleyman, for defendant-appellant. STROUD, Judge. Defendant appeals judgments convicting him of first degree murder, possession of a firearm by a felon, and robbery with a dangerous weapon. For the following prejudicial error. I. Background reasons, we find no -2The State’s evidence tended to show that on 5 May 2011, a video surveillance camera recorded Michael Smith1 entering Charlotte Check Cashers (“CCC”) and removing his wallet from his right jean pocket. Shortly thereafter, defendant entered CCC wearing a red shirt with his hair in dreadlocks; not conduct any business and left. defendant did Thereafter, Mr. returned his wallet to his right jeans’ pocket and left. Smith Later, an eyewitness saw two individuals together; one was a man in a red shirt with his hair in dreadlocks who shot Mr. Smith; the two individuals left together the in a passenger white Volvo and the the white Volvo as eyewitness identified in defendant. Mr. Smith died due to a gunshot wound. Mr. Smith’s jeans’ front pockets were inside-out and his wallet was not on him; DNA consistent with defendant’s and another person’s was found inside Mr. Smith’s jeans’ front pocket. Defendant was indicted for murder, robbery with a dangerous weapon, and possession of a firearm by a felon; a jury convicted defendant on all the charges against him. The trial court sentenced defendant to life imprisonment without parole for the first 1 degree murder and possession of a firearm by a felon A pseudonym will be used to protect the identity of the victim and his family. -3convictions and arrested judgment dangerous weapon conviction. II. for the robbery with a Defendant appeals. Jury Instructions Defendant contends that “the trial court committed error in instructing the jury on acting-in-concert in violation of . . . [defendant]’s rights when that theory was not supported by the evidence.” Essentially, defendant contends that the evidence shows he alone “did the acts necessary to constitute murder, robbery with a firearm, or possession of a firearm by a felon. There was insufficient corresponding evidence was present constitute with the another who crimes.” did Defendant the . . . [defendant] acts necessary challenges only to the sufficiency of the evidence to support the acting in concert instruction because there was not enough evidence as to the other man’s role in the crimes. Properly preserved challenges to the trial court’s decisions regarding jury instructions are reviewed de novo, by this Court. But jury instructions are not reviewed in isolation. This Court reviews jury instructions contextually and in its entirety. The charge will be held to be sufficient if it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed. The party asserting error bears -4the burden of showing that the jury was misled or that the verdict was affected by the instruction. Under such a standard of review, it is not enough for the appealing party to show that error occurred in the jury instructions; rather, it must be demonstrated that such error was likely, in light of the entire charge, to mislead the jury. State v. King, ___ N.C. App. ___, ___, 742 S.E.2d 315, 319 (2013) (emphasis added) (citations and quotation marks omitted). “The following are the elements of acting in concert: (1) being present at the scene of the crime, and (2) acting together with another person who commits the acts necessary to constitute the crime pursuant to a common plan or purpose.” State v. Jackson, 215 N.C. App. 339, 344, 716 S.E.2d 61, 65 (2011). Here, the State’s evidence tended to show that defendant entered CCC in a red shirt with his hair in dreadlocks while Mr. Smith was in CCC conducting business involving his wallet; an eyewitness testified that he saw two men and that the man in a red shirt with dreadlocks shot Mr. Smith; the eyewitness then witnessed both individuals leave in a white Volvo and identified the passenger as defendant; and DNA consistent with defendant’s and another person’s was found on Mr. Smith’s inside-out jeans’ front pocket. The State presented sufficient evidence for the -5trial court to instruct the jury on acting in concert as defendant was identified as being at the scene of the crime with another man when he shot Mr. Smith and then both left the crime scene together with the other man driving the Volvo, and defendant’s own and another person’s DNA was found on Mr. Smith. See id. This argument is overruled. III. Surveillance Recording Defendant next contends that “the trial court erred in admitting a surveillance recording and related evidence from an indeterminate and irrelevant time in violation of . . . [his] rights. (Original in all caps.) The admissibility of evidence is governed by a threshold inquiry into its relevance. In order to be relevant, the evidence must have a logical tendency to prove any fact that is of consequence in the case being litigated. All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of North Carolina, by Act of Congress, by Act of the General Assembly or by these rules. Evidence which is not relevant is not admissible. . . . Although the trial court’s rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal. Because the trial court is better situated to evaluate whether a particular piece of -6evidence tends to make the existence of a fact of consequence more or less probable, the appropriate standard of review for a trial court’s ruling on relevancy pursuant to Rule 401 is not as deferential as the abuse of discretion standard which applies to rulings made pursuant to Rule 403. State v. Royster, ___ N.C. App. ___, ___ S.E.2d ___ (Oct. 21, 2014)(COA14-100)(citations and quotation marks omitted). Defendant contends that the video is irrelevant because of the “the uncertainty that the footage was particular date during a particular time relevant.” recorded on a that would make it In summary, the evidence showed that the time stamp on the CCC recording system “would fall either behind or it would be faster[,]” and thus the time stamps were not always accurate. In fact, the State acknowledged that the time codes on the surveillance video did not exactly coincide with the evidence of when the shooting occurred. But, as the State points out, other extrinsic evidence indicated that the video of the defendant at the CCC was taken at a relevant introduced receipt a from time before Mr. Smith was shot. “contemporaneously timed and dated Charlotte [Smith’s] vehicle[.]” Check Cashers that was The State transaction found in Mr. And despite the time-stamp discrepancies, -7the State presented evidence from the computer engineer who installed and maintained the recording system and testified that he visited the store on a regular basis and that the video equipment was working correctly on the day of the murder. State’s evidence was sufficient to show that the The video surveillance, showing defendant and Mr. Smith at CCC, was made at the time just preceding the shooting of Mr. Smith, and the trial court did not err in determining that it was relevant, as it had “a logical tendency to prove consequence in the case being litigated.” Furthermore, Court that “[e]videntiary an even if defendant evidentiary errors are had rule harmless any fact that is of Id. demonstrated violation unless a to this occurred, defendant proves that absent the error a different result would have been reached at trial.” State v. Ferguson, 145 N.C. App. 302, 307, 549 S.E.2d 889, 893, disc. review denied, 354 N.C. 223, 554 S.E.2d 650 (2001). Here, due to the eyewitness testimony placing defendant at the scene of the crime, noting that the man with the red shirt and dreadlocks shot Mr. Smith, and then positively identifying the man in court who left the scene in a red shirt with dreadlocks as defendant, along with DNA consistent with defendant which was found on Mr. Smith’s jeans’ inside-out front -8pocket, we cannot say that even assuming there was an evidentiary error “a different result would have been reached at trial.” Id. Accordingly, this argument is overruled. IV. Indictment Lastly, defendant contends that the indictment purporting to charge . . . [defendant] with first-degree murder is fatally defective because it does not sufficiently allege the essential elements of the offense and the trial court did not have jurisdiction and committed error in not dismissing this charge in violation of . . . [defendant’s] rights. (Original in all caps.) short-form indictment, Defendant himself admits that as to his “the North Carolina Supreme Court has previously held this not to violate a defendant’s constitutional protections[,] but he raises the purposes[;]” defendant is correct. issue “for preservation See State v. Mitchell, 353 N.C. 309, 328-29, 543 S.E.2d 830, 842 (determining short-form murder indictments are constitutional), cert. denied, 534 U.S. 1000, 151 L.Ed. 2d 389 (2001). As such, this argument overruled. V. Conclusion For the foregoing reasons, we find no prejudicial error. NO ERROR. Judges GEER and BELL concur. is -9Report per Rule 30(e).
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