IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-465
Filed: 20 December 2016
Onslow County, No. 13 CRS 55489
STATE OF NORTH CAROLINA,
v.
JUSTON PAUL JOHNSON, Defendant.
Appeal by Defendant from judgment entered 10 December 2015 by Judge
Beecher R. Gray in Onslow County Superior Court. Heard in the Court of Appeals 5
October 2016.
Attorney General Roy Cooper, by Assistant Attorney General James D.
Concepcion, for the State.
Parish & Cooke, by James R. Parish, for Defendant-Appellant.
INMAN, Judge.
A criminal defendant whose trial is delayed because of a backlog of forensic
laboratory testing and who does not properly assert his speedy trial right until a trial
has been scheduled has not been deprived of his constitutional right to a speedy trial.
Juston Paul Johnson (“Defendant”) appeals from a judgment finding him guilty
of assault with a deadly weapon inflicting serious injury with an enhancement that
at the time of the commission of the felony, Defendant was in possession or wore a
bulletproof vest. Defendant argues he was denied a fair and speedy trial, and that
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Opinion of the Court
the trial court erred in failing to dismiss the assault with a deadly weapon inflicting
serious injury charge and the enhancement for the bulletproof vest for insufficient
evidence. After careful review, we conclude that Defendant received a trial free of
constitutional or other error.
Factual & Procedural Background
Evidence presented at trial tended to show the following:
Shortly after 9:15 pm on Friday, 23 August 2013, Anthony Sutton (“Mr.
Sutton”) had just parked his vehicle and was walking in the parking lot outside his
apartment at 400 Hammock Lane in Jacksonville when a man wearing a bulletproof
vest and gloves drew a gun and pointed it at his face. Mr. Sutton struck the man in
the face and ran into the backyard of his apartment building. Mr. Sutton then heard
a pop and felt a stinging sensation in the back of his left leg. He continued running
until he lost feeling in his left leg and fell to the ground. The man with the gun
jumped on Mr. Sutton, asked him if he wanted to die, and fired another shot. Mr.
Sutton felt a burning sensation in his head like the feeling in his leg and believed he
had been shot in the head.
Mr. Sutton grabbed the gun and fought with his assailant for it. Mr. Sutton
then noticed another person in the yard, whom he at first thought was a neighbor
coming to help him. But the other person joined in the fight, grabbed Mr. Sutton’s
hand that was on the gun, and placed a handcuff on Mr. Sutton’s wrist. The person
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tried to handcuff both of Mr. Sutton’s wrists, but Mr. Sutton punched him in the
chest. The person with the handcuffs then put his hand inside Mr. Sutton’s shorts
and reached for his keys, then fell or moved to the ground, and then ran away. Mr.
Sutton and the man with the gun continued to struggle, and Mr. Sutton heard his
children screaming. At that point, Mr. Sutton released his grasp on the gun and tried
to run toward the building. He then heard a third shot, his right leg went numb, and
he fell again. After a few seconds, Mr. Sutton got up and ran to the front of the
building. He reached the front of the adjacent apartment building, 600 Hammock
Lane, when other people tackled him, told him to sit down, and began giving him first
aid.
Mr. Sutton did not recognize either of his assailants. Although he saw that the
man with the gun was wearing a bulletproof vest, he did not notice whether the
second man was wearing a vest. When he hit the second man in the chest, “it didn’t
feel like flesh. It felt like it was padded. But [he didn’t] really know what [the man]
on.”
Jacksonville police officers responded to a 911 call reporting shots fired outside
of Mr. Sutton’s apartment building and stopped a vehicle they encountered driving
away from the call location. Inside the vehicle they found Latasha Sutton (‘”Ms.
Sutton”), Mr. Sutton’s estranged wife, in the driver’s seat; Defendant in the front
passenger seat; and Dwayne Robinson (“Mr. Robinson”) in a rear passenger seat. A
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Opinion of the Court
child was sitting in Ms. Sutton’s lap and another child was sitting in the backseat
near Mr. Robinson. Officers found a handgun belonging to Defendant in the center
console. Officers found another handgun, which had recently been fired, under the
floorboard of the backseat where Mr. Robinson was sitting. Officers also found a set
of walkie talkies turned on and set to the same channel, a map, handcuffs, rope, and
three or four bulletproof vests in the vehicle. One bulletproof vest was on the front
floorboard on the right passenger side where Defendant was sitting at the time police
stopped the vehicle.
Defendant was ordered to exit the vehicle and was arrested and searched at
the scene. Police found in his possession a pair of handcuffs and ten handcuff keys
on a key chain. Police ultimately confiscated Defendant’s pants. Forensic testing
later determined that the pants were stained with Mr. Sutton’s blood.
Police removed Ms. Sutton, Mr. Robinson, and the children from the vehicle.
Ms. Sutton told one of the officers, “[n]one of this would have happened if you would
have done your job yesterday.” The officer recognized Ms. Sutton and Defendant from
his response to a domestic disturbance call at the same location a day earlier, on 22
August 2013. Ms. Sutton told police on that date that she was entitled to take custody
of her children, who were in Mr. Sutton’s apartment. Police officers were unable to
assist Ms. Sutton and instructed her and Defendant to leave.
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Lawrence Herndon (“Mr. Herndon”), Mr. Sutton’s next-door neighbor, was in
his apartment on the evening of 23 August 2013 when he heard a loud popping noise.
When he heard another pop, Mr. Herndon went to the back window of his apartment
and saw three people struggling outside about 20 feet away. He saw one of the three
people standing up above another person on the ground, pointing the gun down at
the person’s neck. He saw the third person going through the pockets of the person
who was on the ground. Mr. Herndon told his wife to call 911 and heard another
gunshot and saw someone, whom he later identified as Defendant, running toward
the front of the area between his building and an adjacent apartment building. Mr.
Herndon then heard a woman and children screaming, and when he opened his front
door, he heard someone say “they took the kids.” Mr. Herndon walked outside his
front door and found Mr. Sutton lying on the sidewalk. Mr. Herndon then realized
that Mr. Sutton was one of the three people who had been struggling in the back of
the building. Mr. Herndon noticed that Mr. Sutton was handcuffed and bleeding.
Jacksonville police officers arrived within a few minutes of the 911 call.
Officers asked Mr. Herndon if he could identify one or more of three people standing
in front of a patrol car. Mr. Herndon identified Mr. Robinson as the person who had
been holding the gun to Mr. Sutton’s neck and he identified Defendant as the person
who was reaching into Mr. Sutton’s pockets when Mr. Robinson was holding the gun
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on Mr. Sutton’s neck. Mr. Herndon noticed that the man with the gun was wearing
a bulletproof vest. He did not recall seeing Defendant wearing a bulletproof vest.
After being advised of his Miranda rights, Defendant provided a written
statement to police providing the following information: Defendant had come with
Ms. Sutton to Mr. Sutton’s apartment complex in Jacksonville on 22 August 2013 to
pick up Ms. Sutton’s children. Mr. Sutton refused to let Ms. Sutton take the children.
The next day, 23 August 2013, Ms. Sutton told Defendant that Mr. Sutton had
violated a restraining order and that he was on probation. Defendant returned to
Mr. Sutton’s apartment complex that evening with the understanding that Ms.
Sutton had legal authority to take custody of the children because Mr. Sutton had
violated his probation. Defendant’s friend, Mr. Robinson, also rode with them, and
they agreed that Ms. Sutton would drive the vehicle back to Fayetteville after picking
up the children. After the vehicle was parked at the apartments, Mr. Robinson
stepped out. Defendant was sitting in the vehicle with Ms. Sutton when he heard
gunshots. Defendant saw Ms. Sutton’s children outside the apartment building. He
put the children in the vehicle and waited with Ms. Sutton for Mr. Robinson. Mr.
Robinson then returned to the vehicle and they were in the process of leaving when
they were stopped by police.
Defendant was arrested on the night of the shooting and on the following day
he was served with a warrant charging him with attempted first degree murder.
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Defendant initially waived his right to court-appointed counsel, but eventually
counsel was appointed to represent him. On 13 October 2015, Defendant was charged
in a superseding indictment with attempted first degree murder, assault with a
deadly weapon with intent to kill inflicting serious injury, and wearing or having in
his immediate possession a bulletproof vest during the commission of the other
charged felonies. On 24 October 2013, DNA evidence was collected from Defendant.
From the time of his arrest until the jury returned verdicts of guilty on 10 December
2015, Defendant was held in custody under a bond set at more than $500,000.1
On 14 November 2013, evidence including the pants Defendant wore on the
night of the shooting and the DNA sample collected from Defendant was submitted
to the State Bureau of Investigation Crime Lab for analysis. Having received no
results after more than a year, the State submitted a “rush request” with the Crime
Lab in January 2015. The Crime Lab released test results in May 2015 – more than
18 months after Defendant’s arrest. After the test results were released, the case was
set for trial, but the initial trial date of 5 October 2015 was continued at the request
of Defendant’s counsel to 9 November 2015.
On 23 September 2015, Defendant’s counsel filed a motion to withdraw from
the representation on the basis that he had been discharged by Defendant. On 2
1 In a motion filed 2 October 2015 Defendant’s counsel asserted that the bond amount was
$750,000. The record does not include a bond order entered by the trial court.
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October 2015, the same counsel filed a motion to dismiss the charges based on the
alleged violation of Defendant’s right to a speedy trial.
On 28 October 2015, again at the request of Defendant’s counsel, the trial court
postponed the trial from 9 November 2015 to 7 December 2015.
On 7 December 2015, Defendant informed the trial court that he wanted his
counsel to continue representing him. The trial court then conducted a hearing on
Defendant’s speedy trial motion, orally denied the motion, and proceeded to impanel
a jury for trial. Defendant gave notice of appeal in open court.
Analysis
I. Speedy Trial Motion
Defendant contends the trial court erred in denying his motion to dismiss the
charges against him based on the State’s violation of his constitutional right to a
speedy trial. We affirm the trial court’s ruling.
The denial of a motion to dismiss on speedy trial grounds presents a question
of constitutional law subject to de novo review. State v. Graham, 200 N.C. App. 204,
214, 683 S.E.2d 437, 444 (2009). We therefore consider the matter anew and
substitute our judgment for that of the trial court. State v. Williams, 362 N.C. 628,
632-33, 669 S.E.2d 290, 294 (2008).
The United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 33 L. Ed.
2d 101 (1972), established a four-part test to determine if a defendant had been
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denied his constitutional right to a speedy trial. Id. at 530, 33 L. Ed. 2d at 116-17.
The four factors are (1) the length of delay between accusation (by indictment or
arrest) and trial; (2) the reason(s) for the delay; (3) the defendant’s assertion of his
right to a speedy trial; and (4) prejudice to the defendant resulting from the delay.
Id. No single factor is dispositive; “[r]ather, they are related factors and must be
considered together with such other circumstances as may be relevant.” Id. at 533,
33 L. Ed. 2d at 118. The North Carolina Supreme Court expressly adopted the Barker
factors in State v. Grooms, 353 N.C. 50, 62, 540 S.E.2d 713, 721 (2000), and noted
that the same analysis applies to speedy trial claims asserted under Article I, Section
18 of the North Carolina Constitution.
Defendant notes that the trial court failed to articulate any findings of fact or
conclusions of law. But the absence of findings and conclusions does not preclude
review by this Court because none of the evidence relevant to Defendant’s speedy
trial motion was disputed. See State v. Chaplin, 122 N.C. App. 659, 663-64, 471
S.E.2d 653, 656 (1996) (“The information before the trial court is not in dispute and
thus the failure of the trial court to make findings of fact does not prevent review by
this Court.”). Reviewing the undisputed evidence of record we proceed to apply the
Barker analysis.
A. Length of Delay
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The length of delay between accusation and trial does not per se determine
whether a defendant has been denied his speedy trial rights. Grooms, 353 N.C. at
62, 540 S.E.2d at 721. The United States Supreme Court has noted that a delay
approaching one year “marks the point at which courts deem the delay unreasonable
enough to trigger the Barker enquiry.” Doggett v. United States, 505 U.S. 647, 652 n.
1, 120 L. Ed. 2d 520, 528 n. 1 (1992). In this case, Defendant was arrested and
remained incarcerated for nearly 28 months before he was tried. This delay raises
the question of reasonableness and requires us to consider the additional factors.
B. Reason for the Delay
“[D]efendant has the burden of showing that the delay [of his trial] was caused
by the neglect or willfulness of the prosecution.” Grooms, 353 N.C. at 62, 540 S.E.2d
at 721. If Defendant makes a prima facie showing that the delay resulted from
neglect or willfulness by the State, the burden shifts to the State to provide a neutral
explanation for the delay. State v. Spivey, 357 N.C. 114, 119, 579 S.E.2d 251, 255
(2003).
It is undisputed that the last four months of the delay of Defendant’s trial
resulted from his trial counsel’s scheduling conflicts. It also appears that Defendant
initially waived his right to appointed counsel but failed to retain counsel, so that
counsel was appointed and first appeared for Defendant more than a month after his
arrest. Seven months after his arrest, Defendant complained that his counsel had
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not spoken with him in two months. Ultimately, Defendant filed a pro se motion for
appointment of new counsel, and Defendant’s counsel filed a motion to withdraw from
the representation. Delay caused by Defendant’s indecision about counsel, counsel’s
lapse in communicating with Defendant, and counsel’s scheduling conflicts should
not be weighed against the State.
The primary cause of Defendant’s delayed trial was a backlog at the State
Bureau of Investigation’s Crime Lab. The prosecution submitted evidence (including
DNA evidence collected from Defendant after counsel was appointed to represent him
in October 2013) to the Crime Lab for testing on 14 November 2013. The Crime Lab
did not issue test results for another 18 months, in May 2015. Although the
prosecution submitted a “rush request” with the Crime Lab in January 2015, it was
not until April 2015 that the evidence was first tested for the presence of blood and
other bodily fluids. When asked why testing did not start for more than a year after
the evidence was submitted, Martha Traugott, a forensic scientist with the Crime
Lab, testified that “[i]tems are usually worked in the order that we receive them.”
Erin Ermish, another Crime Lab scientist, testified that she first received evidence
gathered in this case on 7 May 2015 and proceeded to conduct a DNA analysis. That
was a few weeks before the Crime Lab issued its report. Ms. Ermish acknowledged
that the State had submitted a “rush request” in January 2015. Asked by counsel for
Defendant if she could explain the long delay in testing, Ms. Ermish testified that
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“due to the number of cases that had previously been submitted that were waiting to
be worked, this case would have been worked in order when it was – when we go to
that number.”
When considering the factor of the reason for a delayed trial, “different weights
should be assigned to different reasons.” Barker, 407 U.S. at 531, 33 L. Ed. 2d at 117.
More specifically:
A deliberate attempt to delay the trial in order to hamper
the defense should be weighed heavily against the
government. A more neutral reason such as negligence or
overcrowded courts should be weighed less heavily but
nevertheless should be considered since the ultimate
responsibility for such circumstances must rest with the
government rather than with the defendant. Finally, a
valid reason, such as a missing witness, should serve to
justify appropriate delay.
Id.
Defendant has not argued that the State deliberately delayed his trial, much
less that the State delayed the trial to hamper his defense. Defendant concedes in
his brief that “it is unclear the State had the ability to speed up” the testing process.
The undisputed testimony by Crime Lab scientists regarding a backlog of
evidence to be tested provides an explanation analogous to that offered in State v.
Hammonds, 141 N.C. App. 152, 160, 541 S.E.2d 166, 173 (2000), in which the trial
court found that a congested court docket in Robeson County delayed the defendant’s
murder trial for more than four years following his arrest. Id. at 160, 541 S.E.2d at
173. “ ‘Our courts have consistently recognized congestion of criminal court dockets
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as a valid justification for delay.’ ” Id. (quoting State v. Hughes, 54 N.C. App. 117,
119, 282 S.E.2d 504, 506 (1981)). Unlike the management of a criminal court docket,
which is within the control of the prosecutor, the management of a backlog of evidence
to be tested is within the control of a separate agency, in this case the State Bureau
of Investigation. While we acknowledge the holding in Barker that governmental
responsibility for delay should be weighed against the State, Defendant has failed to
make a prima facie showing that either the prosecution or the Crime Lab negligently
or purposefully underutilized resources available to prepare the State’s case for trial.
For these reasons, we conclude that the 18 months used by the Crime Lab to process
forensic testing of evidence in this case was a neutral reason for Defendant’s delayed
trial. See also State v. Goins, 232 N.C. App. 451, 453, 754 S.E.2d 195, 198 (2014)
(concluding that a backlog at the Crime Lab was among “neutral” reasons for delay
of the defendant’s trial). Accordingly, this factor of the Barker analysis does not weigh
in favor of Defendant.
C. Defendant’s Assertion of His Right to a Speedy Trial
The third factor to consider is whether and when a criminal defendant has
asserted his right to a speedy trial. “The more serious the deprivation, the more likely
a defendant is to complain. The defendant’s assertion of his speedy trial right, then,
is entitled to strong evidentiary weight in determining whether the defendant is
being deprived of the right.” Barker, 407 U.S. at 531-32, 33 L. Ed. 2d at 117-18. A
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defendant is not required to assert his right to a speedy trial in order to make a speedy
trial claim on appeal. Grooms, 353 N.C. at 63, 540 S.E.2d at 722. But a defendant’s
failure to assert his speedy trial right, or his failure to assert the right sooner in the
process, “does weigh against his contention that he has been denied his constitutional
right to a speedy trial.” Id. Here, Defendant first asserted his speedy trial right more
than a year after he was arrested, and he did not properly2 assert his right until
October 2015 – more than two years after his arrest, after the State had obtained
forensic test results from the Crime Lab, after the trial court had set the case for trial,
and after Defendant’s trial counsel had requested the trial date be continued. The
eleventh-hour nature of Defendant’s speedy trial motion carries minimal weight in
his favor.
D. Prejudice to Defendant
The final factor to consider is prejudice to Defendant caused by the delay
between his arrest and trial. “A defendant must show actual, substantial prejudice.”
Spivey, 357 N.C. at 122, 579 S.E.2d at 257. The constitutional right to a speedy trial
addresses three concerns: “(i) to prevent oppressive pretrial incarceration; (ii) to
2 Defendant filed a pro se motion to dismiss claiming that his right to a speedy trial had been
violated on 30 March 2015. “Having elected for representation by appointed defense counsel,
defendant cannot also file motions on his own behalf or attempt to represent himself. Defendant has
no right to appear both by himself and by counsel.” Grooms, 353 N.C. at 61, 540 S.E.2d at 721; see
also Spivey, 357 N.C. at 121, 579 S.E.2d at 256 (holding that where the defendant was represented by
counsel throughout his pretrial incarceration, and counsel did not file a speedy trial motion for nearly
three years after the defendant’s arrest, the “defendant’s pro se assertion of his right to a speedy trial
is not determinative of whether he was denied the right[]”).
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minimize anxiety and concern of the accused; and (iii) to limit the possibility that the
defense will be impaired.” Grooms, 353 N.C. at 63, 540 S.E.2d at 722 (citations and
quotation marks omitted). Of these concerns, most important “is whether the
prosecutor’s delay hampered defendant’s ability to present his defense[.]” State v.
Hughes, 54 N.C. App. 117, 120, 282 S.E.2d 504, 506 (1981).
In Hughes, the defendant contended that because of delay, he could no longer
contact three alibi witnesses, but he presented no evidence about when the witnesses
became unavailable. 54 N.C. App. at 120, 282 S.E.2d at 506-07. This Court held that
“[b]ecause [the] defendant has not demonstrated that his witnesses were available at
any earlier time, we cannot conclude that the prosecutor’s delay caused him
prejudice.” Id. at 120, 282 S.E.2d at 507.
Defendant here contends that several witnesses’ memories were affected by
the delay between his arrest and trial. For example, he notes that Mr. Herndon could
not recall seeing Defendant wearing a bulletproof vest. Defendant contends that the
lack of recall could have exculpated Defendant had it been presented when the
witness’s memory was clearer. However, without evidence that the witness would
have testified more positively for Defendant at an earlier time, this Court can only
speculate whether the lack of recall hampered the defense or the prosecution. See
Barker, 407 U.S. at 534, 33 L. Ed. 2d at 119 (holding that the defendant’s right to
speedy trial was not violated when the trial transcript revealed only “very minor”
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memory lapses, and noting that one lapse was by a prosecution witness). Defendant
also contends that because he was incarcerated, he was unable to confer adequately
with his counsel. However, given Defendant’s inability to obtain release on bond, we
cannot conclude that Defendant would have obtained noncustodial contact with his
counsel had his trial proceeded sooner.
Considering all of the Barker factors, we conclude that Defendant has failed to
show that his constitutional right to a speedy trial was violated. We therefore affirm
the trial court’s denial of Defendant’s motion to dismiss on that ground.
II. Acting in Concert
Defendant argues that the trial court erred in denying his motion to dismiss
the charge of assault with a deadly weapon inflicting serious injury, because the
evidence was insufficient to support that charge against him. We disagree.
We review de novo a trial court’s denial of a defendant’s motion to dismiss.
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). The test is “whether
there is substantial evidence (1) of each essential element of the offense charged, or
of a lesser offense included therein, and (2) of defendant’s being the perpetrator.”
State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (quotation marks and
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). We review the evidence in the light most favorable
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to the State, drawing every reasonable inference in the State’s favor. State v. Rose,
339 N.C. 172, 192, 451 S.E.2d 211, 213 (1994). On the other hand, evidence which
raises no more than a surmise, suspicion, or conjecture of guilt is insufficient to
withstand the motion to dismiss even though the suspicion so aroused by the evidence
is strong. State v. Evans, 279 N.C. 447, 453, 183 S.E.2d 540, 544 (1971).
If there is substantial evidence—whether direct, circumstantial, or both—to
support a finding that the offense charged has been committed and that the defendant
is the perpetrator, the motion to dismiss should be denied. State v. McNeil, 359 N.C.
800, 804, 617 S.E.2d 271, 274 (2005). When considering circumstantial evidence,
the question for the court is whether a reasonable inference
of defendant’s guilt may be drawn from the circumstances.
If so, it is for the jury to decide whether the facts, taken
singly or in combination, satisfy them beyond a reasonable
doubt that the defendant is actually guilty.
State v. Thomas, 296 N.C. 236, 244, 250 S.E.2d 204, 209 (1978) (citations omitted).
To withstand a motion to dismiss a charge of assault with a deadly weapon
inflicting serious injury, the State must produce substantial evidence that the
defendant (1) assaulted the victim, (2) with a deadly weapon, (3) inflicting serious
injury. State v. Allen, 193 N.C. App. 375, 378, 667 S.E.2d 295, 297-98 (2008). The
term “serious injury” is defined by statute as physical or bodily injury resulting from
an assault with a deadly weapon. State v. Wallace, 197 N.C. App. 339, 347-48, 676
S.E.2d 922, 928 (2009); see also N.C. Gen. Stat. § 14-32 (2015).
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Here, jurors were provided sufficient evidence from which they could
reasonably infer all of the factual elements of the charge against Defendant.
Evidence that Mr. Sutton was shot three times with a gun and required
hospitalization and surgery for his wounds satisfies the elements of assault with a
deadly weapon and infliction of serious injury. The closer question is whether the
evidence was sufficient to allow a reasonable inference that Defendant was a
perpetrator of the crime.
It is undisputed that Mr. Robinson, and not Defendant, shot Mr. Sutton. So
Defendant could only be found guilty of assaulting Mr. Sutton with a deadly weapon
inflicting serious injury based upon a theory of acting in concert. The theory of acting
in concert extends criminal liability to a person who, although not the perpetrator of
a crime, joins with the perpetrator in a common purpose which results in the crime.
If two persons join in a purpose to commit a crime, each of
them, if actually or constructively present, is not only
guilty as a principal if the other commits that particular
crime, but he is also guilty of any other crime committed by
the other in pursuance of the common purpose . . . or as a
natural or probable consequence thereof.
State v. Mann, 355 N.C. 294, 306, 560 S.E.2d 776, 784 (2002) (citations omitted).
The evidence presented at trial established the following facts: Defendant and
Ms. Sutton, who lived in Fayetteville, drove on a Thursday to Mr. Sutton’s residence
in Jacksonville, where the Suttons engaged in a dispute over custody of their children
until police arrived and required Defendant and Ms. Sutton to leave without the
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children. The next evening, Defendant drove his vehicle, along with Mr. Robinson
and Ms. Sutton, from Fayetteville back to Mr. Sutton’s residence in Jacksonville,
carrying in the vehicle firearms, bulletproof vests, and walkie talkie radios that were
turned on and set to the same channel. The vehicle was waiting in Mr. Sutton’s
apartment parking lot when he arrived home that evening. Mr. Robinson, who did
not know Mr. Sutton, shot Mr. Sutton and asked him if he wanted to die. Defendant
assisted Mr. Robinson in restraining Mr. Sutton, placed a handcuff on one of Mr.
Sutton’s wrists, tried without success to cuff both of Mr. Sutton’s wrists, searched Mr.
Sutton’s pockets, and escorted the Suttons’ children from Mr. Sutton’s apartment to
the vehicle where Ms. Sutton was waiting. After neighbors found Mr. Sutton bleeding
from gunshot wounds, Defendant sped away from the scene in the vehicle with Ms.
Sutton, Mr. Robinson, and the children.
This evidence allows a reasonable inference that Defendant brought Mr.
Robinson to Jacksonville, armed and equipped with bulletproof vests and walkie
talkies, to take the children away from Mr. Sutton by force. Taking children by force
and against the will of their custodial parent is a crime. Although it may have been
possible for Defendant to take the children without confronting Mr. Sutton, without
using a gun, a bulletproof vest, or a walkie talkie to communicate with a partner, a
natural consequence of the purpose included a confrontation and use of weapons and
other equipment available to Defendant and Mr. Robinson at the crime scene.
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Defendant argues that absent evidence that he was “anywhere near” Mr.
Robinson when the shots were fired “or in a position to assist or even waiting to assist”
him during the shooting, the evidence was insufficient to show that he was present
during the crime. We are unpersuaded. Mr. Sutton’s blood was found on Defendant’s
pants. Defendant had traveled from another county for the second time in two days
to visit the home of his girlfriend’s estranged husband following a custody dispute.
Defendant had in his possession several sets of handcuffs and a firearm. After Mr.
Robinson first shot Mr. Sutton, and while Mr. Robinson and Mr. Sutton were
struggling over the gun, Defendant aided Mr. Robinson in the assault. The North
Carolina Supreme Court has held:
One who procures or commands another to commit a
felony, 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, is a principal in the second
degree and equally liable with the actual perpetrator.
Stat v. Price, 280 N.C. 154, 158, 184 S.E.2d 866, 869 (1971).
It would have been reasonable for a finder of fact to infer from the evidence
presented at trial that Defendant intended to assist his girlfriend in taking her
children against the will of her estranged husband, that Defendant sought and
obtained the assistance of Mr. Robinson, and that they brought to Mr. Sutton’s
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address weapons and other equipment for the purpose of succeeding in the effort that
had failed the previous day.
Based on the reasonable inferences arising from the evidence presented at
trial, we conclude that the trial court did not err in denying Defendant’s motion to
dismiss the charge of assault with a deadly weapon inflicting serious injury.
III. Bulletproof Vest Enhancement
Defendant argues that the trial court erred in denying his motion to dismiss
the charge that he committed assault while wearing or having in his immediate
possession a bulletproof vest. We disagree.
Mr. Sutton testified at trial that he could not see what Defendant was wearing
during the assault, but that when he punched Defendant’s chest, it felt padded. A
police officer who interviewed Mr. Sutton at the hospital testified that Mr. Sutton
told him both attackers wore bulletproof vests. Police who stopped Defendant’s
vehicle immediately following the shooting found a bulletproof vest lying on the floor
of the front passenger side of the vehicle where Defendant was sitting. This evidence
was sufficient to allow a reasonable inference that Defendant either wore or had in
his immediate possession a bulletproof vest during the assault. For this reason, the
trial court did not err in denying Defendant’s motion to dismiss the enhancement
charge.
Conclusion
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STATE V. JOHNSON
Opinion of the Court
For all of the reasons explained above, we conclude that the trial court did not
violate Defendant’s constitutional right to a speedy trial and that Defendant has
failed to demonstrate any error in his trial.
NO ERROR.
Judges DAVIS and ENOCHS concur.
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