State v. Marion

NO. COA13-200

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

STATE OF NORTH CAROLINA

v. Swain County
Nos. 08 CRS 935-40
TIFFANY LEIGH MARION

Appeal by defendant from judgments entered 19 March 2012 by

Judge Marvin Pope in Swain County Superior Court. Heard in the

Court of Appeals 26 September 2013.

Roy Cooper, Attorney General, by Mary Carla Hollis,
Assistant Attorney General, for the State.

Staples Hughes, Appellate Defender, by Daniel R. Pollitt
and Paul M. Green, Assistant Appellate Defenders, for
defendant-appellant.

DAVIS, Judge.

Tiffany Leigh Marion (“Defendant”) appeals from her

convictions for two counts of first-degree murder, one count of

attempted murder, two counts of robbery with a dangerous weapon,

and one count of first-degree burglary. Defendant’s primary

argument on appeal is that there was insufficient evidence

presented at trial to support her convictions under either an

acting in concert theory or an aiding and abetting theory.
 -2-
After careful review, we vacate in part and remand in part as

set out below.

Factual Background

The State’s evidence tended to establish the following

facts: On 5 August 2008, Defendant traveled from Atlanta,

Georgia to Cherokee, North Carolina to visit Harrah’s casino.

Defendant was accompanied by Jada McCutcheon (“McCutcheon”) — a

friend from the massage therapy school Defendant attended — and

three men, Jeffrey Miles (“Miles”), Jason Johnson (“Johnson”),

and a man known as “Freak.” The group used ecstasy and smoked

marijuana during the car trip and during their entire stay in

North Carolina. Some of the ecstasy they used during their trip

was mixed with other controlled substances, including heroin and

cocaine. Once they arrived, part of the group gambled for

several hours at the casino. Afterwards, Miles checked into a

hotel room and listed Defendant as his guest. The group

congregated in Miles’ room over the next several days to “chill”

and use drugs.

On 7 August 2008, Miles, Johnson, and “Freak” went to the

local Wal-Mart, where they met two local residents, Mark Goolsby

(“Goolsby”) and Dean Mangold (“Mangold”). Miles asked Goolsby

and Mangold if they wanted to take ecstasy and go to the casino
 -3-
with them, and the two replied affirmatively. Miles eventually

brought them back to his hotel room and showed them an AR-15

firearm that he was interested in selling. Mangold suggested

trying to sell the gun to a man named Scott Wiggins (“Wiggins”)

and offered to take them up to see Wiggins. Mangold also told

Miles that Wiggins “had drugs.” During this conversation,

Defendant was lying on the bed and seemed “messed up.”

Goolsby, Mangold, Miles, Johnson, McCutcheon, and Defendant

got into their van and drove to Wiggins’ home. During the

drive, Mangold told Miles that Wiggins owed him money and that

Wiggins had “all this stuff” and “a lot of money.” Miles was

driving the van and parked it on a gravel logging road where it

could not be seen from Wiggins’ house. Everyone exited the

vehicle, and Miles told everyone that they were “fixin’ to hit a

lick,” meaning that they were about to rob someone. Defendant

stayed by the van and told McCutcheon that she “didn’t want to

go up there.”

Johnson kicked in the door of the residence and proceeded

to hold Wiggins and another person present in Wiggins’ home,

Michael Heath Compton (“Compton”), at gunpoint while the others

began gathering valuables. While the group was searching for

valuables, another person, Timothy Dale Waldroup (“Waldroup”),
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drove up to the house and was escorted into the residence at

gunpoint. Miles shot Wiggins, Compton, and Waldroup during the

course of the burglary, and only Waldroup survived. Goolsby and

Mangold heard the gunshots, “got scared,” and left the scene.

Defendant then left the area by the van where she had been

waiting, walked towards the house, found Johnson, and informed

him that Goolsby and Mangold had left. She then returned to the

van.

Johnson, Miles and McCutcheon proceeded to load the stolen

items into Wiggins’ pickup truck. Defendant attempted to drive

the van but was unable to release the parking brake so

McCutcheon drove the vehicle. Defendant and the others traveled

back to Georgia and moved the stolen items into Miles’

apartment.

On 18 August 2008, the Swain County grand jury returned

bills of indictment charging Defendant with two counts of first-

degree murder, one count of attempted murder, one count of

first-degree burglary, two counts of robbery with a dangerous

weapon, and three counts of first-degree kidnapping. The matter

came on for a jury trial during the February and March 2012

Criminal Sessions of Swain County Superior Court.

Defendant offered evidence at trial and testified in her
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defense. She testified that she was using drugs during the

entire trip and did not learn what had happened at Wiggins’

house until she returned to Georgia on 11 August 2008. She

further stated that she never heard or was a part of any

conversations regarding a plan to rob Wiggins and explained that

she “had no idea what was going on” when the group went to

Wiggins’ house, “had nothing to do with it,” and “would never,

ever be a part of anything like this.”

The jury found Defendant guilty of two counts of first-

degree murder, one count of attempted murder, one count of

first-degree burglary, and two counts of robbery with a

dangerous weapon. Defendant was found not guilty of the three

kidnapping charges. The trial court entered judgments based on

the jury’s verdicts, sentencing Defendant to two consecutive

terms of life imprisonment without parole for the first-degree

murder charges, a presumptive-range term of 125 to 159 months

for the attempted murder conviction, and presumptive-range terms

of 51 to 71 months imprisonment for each of the remaining

charges. Defendant gave timely written notice of appeal.

Analysis

Defendant raises a number of arguments on appeal. We

address each in turn.
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I. Defendant’s Statement to Detective Posey

Defendant first argues that the trial court erred by

allowing the State to impeach her trial testimony through the

use of a “written instrument[] the prosecutor improperly

characterized, described, and referred to in court as

‘defendant’s written statement.’” Defendant acknowledges that

she did not object to the use of this evidence at trial and

therefore seeks review under the plain error doctrine. Under

plain error review, Defendant bears the burden of showing that

the alleged error was such that it “had a probable impact on the

jury’s finding that the defendant was guilty.” State v.

Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(citations and quotation marks omitted).

Relying on State v. Walker, 269 N.C. 135, 152 S.E.2d 133

(1967), Defendant contends that the trial court committed plain

error by admitting into evidence notes prepared by Detective

Carolyn Posey (“Detective Posey”) memorializing a conversation

with Defendant and allowing the State to impeach Defendant’s

testimony with those notes.

In Walker, our Supreme Court held as follows:

If a statement purporting to be a confession
is given by [the] accused, and is reduced to
writing by another person, before the
written instrument will be deemed admissible
 -7-
as the written confession of [the] accused,
he must in some manner have indicated his
acquiescence in the correctness of the
writing itself. If the transcribed
statement is not read by or to [the]
accused, and is not signed by [the] accused,
or in some other manner approved, or its
correctness acknowledged, the instrument is
not legally, or per se, the confession of
[the] accused; and it is not admissible in
evidence as the written confession of [the]
accused.

Id. at 139, 152 S.E.2d at 137 (citation and quotation marks

omitted).

Our Supreme Court has explained, however, that the

authentication requirements outlined in Walker, and later

reiterated in State v. Wagner, 343 N.C. 250, 470 S.E.2d 33

(1996), do not apply to statements made by a defendant that are

not confessions. See State v. Moody, 345 N.C. 563, 579, 481

S.E.2d 629, 637 (holding that “the requirements outlined in

Wagner do not apply” because “[a]t no time was [the law

enforcement officer’s] record of his interview with defendant

characterized as defendant’s written confession”), cert. denied,

522 U.S. 871, 139 L.Ed.2d 125 (1997).

Here, Detective Posey testified that she took notes while

she and Deputy Scott Cody transported Defendant from Georgia to

North Carolina on 20 August 2008. Detective Posey explained

that the notes were taken in shorthand, and they were “not
 -8-
exactly word for word.” She replied affirmatively when asked if

what she wrote was “as best [as] you can recall . . . what

[Defendant] said while she was in the car.”

After reviewing the transcript and record, we have found no

indication that Defendant’s statements to Detective Posey were

ever characterized as Defendant’s confession. A confession is

“an acknowledgment in express words, by the accused in a

criminal case, of the truth of the guilty fact charged or of

some essential part of it.” State v. Jones, 294 N.C. 642, 659,

243 S.E.2d 118, 128 (1978) (citation and quotation marks

omitted). Defendant’s statements to Detective Posey,

conversely, did not admit her guilt or participation in the

crimes. Rather, the notes memorializing the conversation

reflected Defendant’s assertions that she did not know “anything

about robbing anybody”; “did not even know anyone had passed”;

that “nobody said anything to [her] about guns”; and that she

only knew what had happened afterwards because McCutcheon told

her.

A defendant’s statement that is not purported to be a

written confession is admissible under the exception to the

hearsay rule for statements by a party-opponent and does not

require the defendant’s acknowledgement or adoption. Moody, 345
 -9-
N.C. at 579, 481 S.E.2d at 637; see State v. Randolph, ___ N.C.

App. ___, ___, 735 S.E.2d 845, 852 (2012) (“[S]o long as oral

statements are not obtained in violation of the constitutional

protections against self-incrimination or due process, a

defendant’s own statement is admissible when offered against him

at trial as an exception to the hearsay rule.” (citation and

quotation marks omitted)), appeal dismissed, 366 N.C. 562, 738

S.E.2d 392 (2013). Accordingly, we hold that the trial court

did not commit error, much less plain error, by allowing the

State to impeach Defendant with her prior statements to

Detective Posey.

II. Failure to Arrest Judgment on a Felony Conviction

Defendant’s second argument on appeal is that the trial

court erred by failing to arrest judgment with respect to any of

her felony convictions. Defendant asserts that because she was

convicted of two counts of first-degree felony murder, the trial

court was required to arrest judgment on at least two of her

felony convictions pursuant to the felony murder merger

doctrine. The State concedes that failing to arrest judgment on

any of Defendant’s felony offenses was error but argues that

judgment need be arrested on only one of the felonies.

“The felony murder merger doctrine provides that when a
 -10-
defendant is convicted of felony murder only, the underlying

felony constitutes an element of first-degree murder and merges

into the murder conviction.” State v. Rush, 196 N.C. App. 307,

313-14, 674 S.E.2d 764, 770 (citation, quotation marks, and

brackets omitted), disc. review denied, 363 N.C. 587, 683 S.E.2d

706 (2009). Thus, if the defendant’s conviction for first-

degree murder is based solely upon the theory of felony murder,

he or she “cannot be sentenced on the underlying felony in

addition to the sentence for first-degree murder.” Id. at 314,

674 S.E.2d at 770 (citation and quotation marks omitted). In

this case, because Defendant’s first-degree murder convictions

were exclusively premised on a felony murder theory, the trial

court erred in entering judgment on all of Defendant’s felonies.

However, we are not persuaded by Defendant’s contention

that judgment must be arrested with respect to all of her felony

convictions. Defendant asserts that because the trial court’s

instructions were disjunctive and permitted the jury to find

Defendant guilty of felony murder if it found that she committed

“the felony of robbery with a firearm, burglary, and/or

kidnapping,” the trial court should have arrested judgment on

all of the felony convictions on the theory that they all could

have served as the basis for the felony murder convictions.
 -11-
Our Court rejected this same argument in State v. Coleman,

161 N.C. App. 224, 587 S.E.2d 889 (2003). We explained that the

disjunctive instruction was not error — and did not require the

trial court to arrest judgment with respect to all of the

defendant’s felony convictions — because the defendant’s right

to a unanimous verdict was not violated and the instruction

merely allowed the jury to convict the defendant of a single

wrong by alternative acts. Id. at 234-35, 587 S.E.2d at 896.

Indeed, this Court has explicitly held that if multiple

felonies support a felony murder conviction, the merger rule

only “requires the trial court to arrest judgment on at least

one of the underlying felony convictions . . . .” State v.

Dudley, 151 N.C. App. 711, 716, 566 S.E.2d 843, 847 (2002),

appeal dismissed and disc. review denied, 356 N.C. 684, 578

S.E.2d 314 (2003). In cases where the jury does not

specifically determine which conviction serves as the underlying

felony, we have held that the trial court may, in its

discretion, select the felony judgment to arrest. See Coleman,

161 N.C. App. at 236, 587 S.E.2d at 897 (“[W]here no specific

underlying felony was noted in the jury instructions on felony

murder, and where there are multiple felony convictions which

could serve as the underlying felony for purposes of the felony
 -12-
murder conviction, it is in the discretion of the trial court as

to which felony will serve as the underlying felony for purposes

of sentencing.”). We therefore remand with instructions that

the trial court arrest judgment with respect to at least one of

Defendant’s felony convictions “in such a manner that would not

subject [D]efendant to a greater punishment.” Dudley, 151 N.C.

App. at 716, 566 S.E.2d at 847.

III. Attempted Murder

Defendant also argues that the trial court erred by

entering judgment on the jury’s guilty verdict of attempted

murder. The State concedes error on this issue as well.

The trial court’s instruction concerning the attempted

murder offense was based solely upon a theory of attempted

felony murder. This Court has held that “the offense of

‘attempted first degree felony murder’ does not exist under our

law.” State v. Lea, 126 N.C. App. 440, 449, 485 S.E.2d 874, 879

(1997) (cited with approval by State v. Coble, 351 N.C. 448,

452, 527 S.E.2d 45, 48 (2000)). In so holding, we reasoned that

the offense of felony murder “does not require that the

defendant intend the killing, only that he or she intend to

commit the underlying felony. Lea, 126 N.C. App. at 449, 485

S.E.2d at 880. Attempt, on the other hand, requires the State
 -13-
to establish that the defendant specifically intended to commit

the crime charged. Id. Thus, “a charge of ‘attempted felony

murder’ is a logical impossibility in that it would require the

defendant to intend what is by definition an unintentional

result.” Id. at 450, 485 S.E.2d at 880.

Because attempted first-degree felony murder does not exist

under the laws of North Carolina, we vacate Defendant’s

conviction with respect to this charge.

IV. Sufficiency of the Evidence of Acting in Concert or Aiding
and Abetting

Defendant next asserts that all of her convictions must be

vacated because the State failed to present substantial evidence

concerning her involvement in the crimes under either the theory

of (1) acting in concert; or (2) aiding and abetting.

Defendant’s counsel did not make a motion to dismiss the charges

at the close of all of the evidence, thereby failing to preserve

this issue for appellate review. See N.C.R. App. P.10(a)(3)

(“[I]f a defendant fails to move to dismiss the action . . . at

the close of all the evidence, defendant may not challenge on

appeal the sufficiency of the evidence to prove the crime

charged.”). However, because Defendant also brings forward an

ineffective assistance of counsel claim based on her counsel’s

failure to make the motion to dismiss, we elect to review
 -14-
Defendant’s sufficiency of the evidence argument pursuant to

Rule 2 of the North Carolina Rules of Appellate Procedure. See

State v. Gayton-Barbosa, 197 N.C. App. 129, 140, 676 S.E.2d 586,

593 (2009) (“[P]ursuant to N.C.R. App. P.2, we will hear the

merits of defendant’s claim despite the rule violation because

defendant also argues ineffective assistance of counsel based on

counsel’s failure to make the proper motion to dismiss.”).

Here, the State relied on two theories to establish

Defendant’s criminal responsibility for the murder, burglary,

and robbery with a dangerous weapon offenses: (1) acting in

concert, and (2) aiding and abetting. Under a theory of acting

in concert, a defendant may be found guilty of an offense if she

“is present at the scene of the crime and . . . [s]he is acting

together with another who does the acts necessary to constitute

the crime pursuant to a common plan or purpose to commit the

crime.” State v. Barnes, 91 N.C. App. 484, 487, 372 S.E.2d 352,

353 (1988) (citation and quotation marks omitted), aff’d as

modified, 324 N.C. 539, 380 S.E.2d 118 (1989).

Under a theory of aiding and abetting, the State must

present evidence “(1) that the crime was committed by another;

(2) that the defendant knowingly advised, instigated,

encouraged, procured, or aided the other person; and (3) that
 -15-
the defendant’s actions or statements caused or contributed to

the commission of the crime by the other person.” State v.

Bond, 345 N.C. 1, 24, 478 S.E.2d 163, 175 (1996), cert. denied,

521 U.S. 1124, 138 L.Ed.2d 1022 (1997).

A person may be guilty as an aider and
abettor if that person . . . accompanies the
actual perpetrator to the vicinity of the
offense and, with the knowledge of the
actual perpetrator, remains in that vicinity
for the purpose of aiding and abetting in
the offense and sufficiently close to the
scene of the offense to render aid in its
commission, if needed, or to provide a means
by which the actual perpetrator may get away
from the scene upon the completion of the
offense.

State v. Pryor, 59 N.C. App. 1, 7, 295 S.E.2d 610, 615 (1982)

(citation and quotation marks omitted).

When determining whether there is substantial evidence to

sustain a conviction,

all of the evidence actually admitted,
whether competent or incompetent, which is
favorable to the State is to be considered
by the court in ruling on the motion. 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[.]

State v. Spencer, 192 N.C. App. 143, 147, 664 S.E.2d 601, 604

(2008) (internal citation and quotation marks omitted), disc.

review denied, 363 N.C. 380, 680 S.E.2d 208 (2009).
 -16-
Evidence offered by the defendant is disregarded when

considering a motion to dismiss unless the evidence is

“favorable to the State or does not conflict with the State’s

evidence.” State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866,

869 (2002). Finally, our Supreme Court has made clear that

“[c]ircumstantial evidence may withstand a motion to dismiss and

support a conviction even when the evidence does not rule out

every hypothesis of innocence.” State v. Fritsch, 351 N.C. 373,

379, 526 S.E.2d 451, 455 (citation and quotation marks omitted),

cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000).

We conclude that the evidence offered at trial, taken in

the light most favorable to the State, was sufficient to support

Defendant’s convictions under both theories of criminal

liability. Although Defendant argues that she never said

anything to the other participants to indicate that she had a

common plan or an intent to aid them in their crimes, neither

acting in concert nor aiding and abetting require a defendant to

expressly vocalize her assent to the criminal conduct. See

State v. Hill, 182 N.C. App. 88, 93, 641 S.E.2d 380, 385 (2007)

(“The theory of acting in concert does not require an express

agreement between the parties. All that is necessary is an

implied mutual understanding or agreement to do the crimes.”
 -17-
(citation and quotation marks omitted)); State v. Allen, 127

N.C. App. 182, 185, 488 S.E.2d 294, 296 (1997) (“Communication

of intent [to aid or abet] to the perpetrator may be inferred

from the defendant’s actions and from his relation to the

perpetrator. . . . [A defendant’s] presence alone may be

sufficient when the [defendant] is a friend of the perpetrator

and the perpetrator knows the friend’s presence will be regarded

as encouragement and protection.”).

The State offered evidence, through the testimony of

several of the other participants,1 that Defendant (1) was

present for the discussions and aware of the group’s plan to rob

Wiggins; (2) noticed Mangold’s gun because it was similar to the

one “she had got shot with prior in her life;” (3) was sitting

next to Miles in the van when he loaded his shotgun; (4) told

the group that she did not want to go up to the house but

remained outside the van; (5) walked toward the house to inform

the others that Mangold and Goolsby had fled; (6) told

McCutcheon and Johnson “y’all need to come on;” (7) attempted to

start the van when McCutcheon returned but could not release the

parking brake; and (8) assisted in unloading the goods stolen

1
McCutcheon died before Defendant’s trial, but her interview
with law enforcement officers on 17 September 2008 was
introduced at trial under Rule 804 of the North Carolina Rules
of Evidence.
 -18-
from Wiggins’ house into Miles’ apartment once they returned to

Georgia.

This evidence — and the reasonable inferences that may be

drawn from it — is relevant evidence that a reasonable juror

could conclude was adequate to support the conclusion that

Defendant remained in the vicinity of the crime scene, was

willing to render assistance, and did, in fact, aid in the

perpetration of the offenses by informing the others that

Goolsby and Mangold “ran off” and encouraging everyone to hurry

up and leave. Defendant’s testimony that she was not aware of

what was happening and did not act pursuant to a common plan or

intend to offer assistance is not considered when ruling on the

sufficiency of the evidence and did not warrant a dismissal of

the charges. See State v. Agustin, ___ N.C. App. ___, ___, 747

S.E.2d 316, 318 (2013) (“Contradictions and discrepancies do not

warrant dismissal of the case; rather, they are for the jury to

resolve. Defendant’s evidence, unless favorable to the State,

is not to be taken into consideration.” (citation and quotation

marks omitted)). Thus, the determination of whether Defendant

was criminally responsible for these offenses under either an

aiding and abetting theory or an acting in concert theory was a

question for the jury.
 -19-
V. Ineffective Assistance of Counsel

Finally, Defendant contends that her trial counsel’s

failure to make a motion to dismiss at the close of all of the

evidence deprived her of her constitutional right to effective

assistance of counsel. We disagree.

In order to establish ineffective assistance of counsel,

“[a] defendant must first show that [her] defense counsel’s

performance was deficient and, second, that counsel’s deficient

performance prejudiced [her] defense.” State v. Thompson, 359

N.C. 77, 115, 604 S.E.2d 850, 876 (2004), cert. denied, 546 U.S.

830, 163 L.Ed.2d 80 (2005).

Deficient performance may be established by
showing that counsel’s representation fell
below an objective standard of
reasonableness. Generally, to establish
prejudice, a defendant must show that there
is a reasonable probability that, but for
counsel’s unprofessional errors, the result
of the proceeding would have been different.
A reasonable probability is a probability
sufficient to undermine confidence in the
outcome.

State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (internal

citations and quotation marks omitted), cert. denied, 549 U.S.

867, 166 L.Ed.2d 116 (2006).

However, “if a reviewing court can determine at the outset

that there is no reasonable probability that in the absence of
 -20-
counsel’s alleged errors the result of the proceeding would have

been different, then the court need not determine whether

counsel’s performance was actually deficient.” State v.

Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 249 (1985).

As discussed above, the State presented sufficient evidence

to withstand a motion to dismiss the charges against Defendant

under the acting in concert and aiding and abetting theories of

criminal liability. As such, we cannot conclude that Defendant

was prejudiced by her counsel’s failure to make a proper motion

to dismiss the charges. Therefore, Defendant’s argument is

overruled.

Conclusion

For the reasons stated above, we vacate Defendant’s

conviction for attempted murder and remand to the trial court so

that it may arrest judgment with respect to at least one of

Defendant’s felony convictions pursuant to the merger doctrine.

NO ERROR IN PART; VACATED IN PART; REMANDED IN PART.

Judges HUNTER, JR. and ERVIN concur.