IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-924
Filed: 7 November 2017
Hoke County, Nos. 12 CRS 51350-52, 13 CRS 954
STATE OF NORTH CAROLINA
v.
JUAN FORONTE MCPHAUL
Appeal by defendant from judgments entered 2 October 2015 by Judge James
M. Webb in Hoke County Superior Court. Heard in the Court of Appeals 22 February
2017.
Attorney General Joshua H. Stein, by Assistant Attorney General William P.
Hart, Jr., for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S.
Zimmer, for defendant-appellant.
CALABRIA, Judge.
Juan Foronte McPhaul (“defendant”) appeals from judgments entered upon
jury verdicts finding him guilty of attempted first degree murder; assault with a
deadly weapon with intent to kill inflicting serious injury (“AWDWIKISI”); robbery
with a dangerous weapon; conspiracy to commit robbery with a dangerous weapon;
and assault inflicting serious bodily injury. After careful review, we conclude that
defendant received a fair trial, free from prejudicial error. However, because the trial
court was not authorized to enter judgments and sentence defendant for two assaults
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Opinion of the Court
based on the same underlying conduct, we vacate the trial court’s assault inflicting
serious bodily injury judgment in 13 CRS 954.
I. Background
Late in the evening on 3 August 2012, Domino’s Pizza driver Tyler Lloyd
(“Lloyd”) delivered two pizzas and a box of chicken wings to a residence on O’Bannon
Drive in Raeford, North Carolina. When Lloyd arrived, a man waiting on the porch
of the residence told Lloyd that his cousin had placed the delivery order and would
return momentarily to pay for the food. As Lloyd returned to his truck to wait, a
second, larger man approached him from the yard. The men engaged in small talk
beside Lloyd’s truck while Lloyd waited for payment.
After five minutes passed, Lloyd said that he needed to return to Domino’s.
The larger man offered to pay for the pizzas. However, when Lloyd reached into his
truck for the food, he was hit on the head from behind and fell to the ground. When
Lloyd attempted to stand, the larger man hit him in the right shin with a metal
baseball bat, and Lloyd fell back to the ground. As Lloyd extended his arm to protect
himself from another blow, the bat connected with his hand and struck him hard in
the face. Lloyd blacked out. When he regained consciousness, Lloyd discovered the
men, the food, and his cell phone were gone. Since he could not call law enforcement,
Lloyd attempted to drive back to Domino’s. Shortly after he started driving, however,
Lloyd began to feel as though he might lose consciousness again, and he pulled over.
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When Lloyd failed to return to Domino’s, at 12:34 a.m. on 4 August 2012, his
manager called the Hoke County Sheriff’s Department (“HCSD”) to report the
missing driver. Lloyd’s manager provided the O’Bannon Drive address as the
destination for his last delivery, and HCSD deputies canvassed the area. Although
they did not find Lloyd, on the pavement, they discovered a pile of loose change; a
2011 Hoke County High School class ring; a Domino’s Pizza delivery sticker; and a
large pool of reddish-brown liquid that appeared to be fresh blood. The deputies
contacted Detective Sergeant Donald E. Schwab, Jr. (“Detective Schwab”) to request
assistance with the investigation.
At around 1:30 a.m. on 4 August 2012, HCSD deputies found Lloyd sitting in
his truck, approximately one-quarter mile away from the O’Bannon Drive residence.
Lloyd was very disoriented and was bleeding from severe lacerations to his head and
right leg. When Detective Schwab arrived, Lloyd told him that two black males with
dreadlocks, wearing black clothing, had stolen his cell phone and pizzas and beaten
him with a metal baseball bat. Lloyd told Detective Schwab that one of the men was
“larger framed” and the other man was “smaller framed [and] shorter.” Emergency
Medical Services subsequently arrived and transported Lloyd to the hospital, where
he received emergency brain surgery for his injuries.
At 3:45 a.m. on 4 August 2012, HCSD Captain John Kivett (“Captain Kivett”)
interviewed the Domino’s manager regarding the details of the O’Bannon Drive
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Opinion of the Court
delivery order. Subsequently, the manager obtained a printout confirming that the
order was placed online. Domino’s captured and provided the IP address to
investigators.
At approximately 4:00 a.m. on 4 August 2012, investigators conducted a canine
track from the yard at the O’Bannon Drive residence. After tracking through a hole
in the fence, the canine followed a dirt path into the adjacent neighborhood of Puppy
Creek Mobile Home Park, where the canine lost the track at the nearby intersection
of Springer Drive and Dalmatian Drive. That afternoon, investigators traced the IP
address provided by Domino’s to a residence on Springer Drive in the Puppy Creek
Mobile Home Park.
At 8:15 p.m. on 4 August 2012, Captain Kivett met with a confidential source
of information (“CSI”). The CSI told Captain Kivett that at approximately 11:30 p.m.
on 3 August 2012, he observed two men, wearing black shirts and blue jeans, running
from the intersection of Springer Drive and Dalmatian Drive, heading toward 217
Springer Drive. The CSI described one of the men he saw as “a tall large frame black
male [with] long dreadlocks,” and the other as “a short slim black male with
dreadlocks.” In addition, one man was holding a cell phone, and the other man was
carrying what appeared to be a large duffle bag, similar to the type used for pizza
delivery. The larger man entered 217 Springer Drive through the front door, but the
CSI lost sight of the smaller man when he disappeared behind another residence.
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Opinion of the Court
At approximately 9:00 p.m. on 4 August 2012, Captain Kivett investigated the
Springer Drive residence associated with the IP address used for the Domino’s order.
None of the occupants matched Lloyd’s description of his assailants. However,
Captain Kivett determined that the home’s wireless connection was unsecured and
accessible to any wireless device within range.
With all of this information, Detective Schwab applied for a warrant for 217
Springer Drive, based upon probable cause that a search of the residence would yield
evidence of Lloyd’s assault. At 11:05 p.m. on 4 August 2012, HCSD obtained a search
warrant for 217 Springer Drive. In executing the search warrant, HCSD seized two
Domino’s pizza boxes; a Domino’s chicken wing box; printed Domino’s delivery labels
bearing the O’Bannon Drive address; a black OtterBox cell phone cover; a large black
t-shirt; and various forms of identification establishing defendant as a resident of 217
Springer Drive. In addition, HCSD discovered an aluminum baseball bat underneath
the residence next door.
On 7 August 2012, HCSD arrested defendant and charged him with attempted
first degree murder, AWDWIKISI, robbery with a dangerous weapon, and conspiracy
to commit robbery with a dangerous weapon. On 2 December 2013, a Hoke County
grand jury returned bills of indictment formally charging defendant with these
offenses, as well as assault inflicting serious bodily injury. Prior to trial, defendant
filed a motion to suppress all evidence obtained from the search of his residence,
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claiming that the warrant lacked probable cause. Following an evidentiary hearing,
the trial court denied defendant’s motion.
On 29 September 2015, a jury trial commenced in Hoke County Criminal
Superior Court. Defendant moved to dismiss all charges at the close of the State’s
evidence and at the close of all of the evidence. The trial court denied both motions.
On 2 October 2015, the jury returned verdicts finding defendant guilty of all charges.
The trial court ordered defendant to serve the following consecutive sentences in the
custody of the North Carolina Division of Adult Correction: 238-298 months for
attempted first degree murder; 88-118 months for AWDWIKISI; and 97-129 months
for robbery with a dangerous weapon. In addition, the trial court imposed concurrent
sentences of 38-58 months for conspiracy to commit robbery with a dangerous weapon
and 25-39 months for assault inflicting serious bodily injury. Defendant appeals.
II. Analysis
A. Denial of Defendant’s Motion to Suppress
Defendant first challenges the trial court’s denial of his motion to suppress,
contending that the search warrant affidavit failed to establish the existence of
probable cause. We disagree.
Our review of a trial court’s denial of a motion to suppress is “strictly limited
to determining whether the trial judge’s underlying findings of fact are supported by
competent evidence, in which event they are conclusively binding on appeal, and
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Opinion of the Court
whether those factual findings in turn support the judge’s ultimate conclusions of
law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). We review the
trial court’s conclusions of law de novo. State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d
625, 631 (2000).
The protection against unreasonable searches and seizures is ingrained within
our federal and state constitutions. See U.S. Const. amend. IV (protecting “[t]he right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures” and providing that “no warrants shall issue but
upon probable cause, supported by oath or affirmation and particularly describing
the place to be searched and the persons or things to be seized”); N.C. Const. Art. I
sec. 20 (prohibiting the issuance of “[g]eneral warrants, whereby any officer or other
person may be commanded to search suspected places without evidence of the act
committed, or to seize any person or persons not named, whose offense is not
particularly described and supported by evidence”).
In light of these provisions, courts “have expressed a strong preference for
searches conducted pursuant to a warrant.” State v. McKinney, 368 N.C. 161, 164,
775 S.E.2d 821, 824 (2015) (citations and internal quotation marks omitted).
Pursuant to N.C. Gen. Stat. § 15A-244 (2015), all search warrant applications must
be made in writing upon oath or affirmation and must contain:
(1) The name and title of the applicant; and
(2) A statement that there is probable cause to believe that
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Opinion of the Court
items subject to seizure under [N.C. Gen. Stat. §] 15A-242
may be found in or upon a designated or described place,
vehicle, or person; and
(3) Allegations of fact supporting the statement. The
statements must be supported by one or more affidavits
particularly setting forth the facts and circumstances
establishing probable cause to believe that the items are in
the places or in the possession of the individuals to be
searched; and
(4) A request that the court issue a search warrant directing a
search for and the seizure of the items in question.
The facts set forth in the affidavit “must be such that a reasonably discreet and
prudent person would rely upon them before they will be held to provide probable
cause justifying the issuance of a search warrant.” State v. Arrington, 311 N.C. 633,
636, 319 S.E.2d 254, 256 (1984).
“The ‘common-sense, practical question’ of whether probable cause exists must
be determined by applying a ‘totality of the circumstances’ test.” State v. Benters, 367
N.C. 660, 664, 766 S.E.2d 593, 597 (2014) (quoting Illinois v. Gates, 462 U.S. 213, 230,
76 L. Ed. 2d 527, 543 (1983)). In making this determination,
[t]he task of the issuing magistrate is simply to make a
practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him,
including the “veracity” and “basis of knowledge” of
persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be
found in a particular place.
Id. at 664, 766 S.E.2d at 598 (citation omitted). The “standard for determining
probable cause is flexible, permitting the magistrate to draw reasonable inferences
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Opinion of the Court
from the evidence in the affidavit supporting the application for the warrant . . . .”
McKinney, 368 N.C. at 164, 775 S.E.2d at 824-25 (internal citations and quotation
marks omitted). The “evidence is viewed from the perspective of a police officer with
the affiant’s training and experience, and the commonsense judgments reached by
officers in light of that training and specialized experience[.]” Id. at 164-65, 775
S.E.2d at 825 (citations omitted).
A magistrate’s probable cause determination is accorded great deference, and
“after-the-fact scrutiny should not take the form of a de novo review.” Arrington, 311
N.C. at 638, 319 S.E.2d at 258. “Instead, a reviewing court is responsible for ensuring
that the issuing magistrate had a ‘substantial basis for . . . conclud[ing]’ that probable
cause existed.” McKinney, 368 N.C. at 165, 775 S.E.2d at 825 (quoting Gates, 462
U.S. at 238-39, 76 L. Ed. 2d at 548 (alterations in original)). Nevertheless, “[b]ecause
its duty in ruling on a motion to suppress based upon an alleged lack of probable
cause for a search warrant involves an evaluation of the judicial officer’s decision to
issue the warrant, the trial court should consider only the information before the
issuing officer.” State v. Brown, __ N.C. App. __, __, 787 S.E.2d 81, 85 (2016).
On appeal, defendant argues that the warrant lacked probable cause because
the CSI’s statement provided the only basis to believe that evidence might be found
at 217 Springer Drive, and the supporting affidavit failed to establish the unnamed
CSI’s reliability. We disagree.
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Opinion of the Court
“When probable cause is based on an informant’s tip a totality of the
circumstances test is used to weigh the reliability or unreliability of the informant.”
State v. Green, 194 N.C. App. 623, 627, 670 S.E.2d 635, 638, aff’d per curiam, 363
N.C. 620, 683 S.E.2d 208 (2009). Courts consider several factors in assessing
reliability, including: “(1) whether the informant was known or anonymous, (2) the
informant’s history of reliability, and (3) whether information provided by the
informant could be and was independently corroborated by the police.” Id. (citation
omitted).
In the instant case, Detective Schwab’s affidavit included the following details
concerning the CSI:
On August 4, 2012 at approximately 8:15 PM Captain John
Kivett met with a confidential source of information
hereafter referred to as CSI. The CSI provided information
indicating that on August 3, 2012 at approximately 11:30
PM he witnessed two black males, wearing black shirts,
and blue jeans running from near the intersection of
Springer Drive and Dalmatian Drive Raeford North
Carolina heading toward 217 Springer Drive Raeford
North Carolina. He described one of the black males as a
tall large frame black male long dreadlocks and the other
was a short slim black male with dreadlocks. One of the
black males was carrying what appeared to him as a large
duffel [sic] bag and the other black male was carrying what
appeared to him as a cell phone in his hand. The smaller
framed black male disappeared from his sight behind
[another Springer Drive residence]. The CSI witnessed the
larger framed black male walking inside the front door of
217 Springer Drive Raeford North Carolina.
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Opinion of the Court
At the suppression hearing, the trial court considered additional evidence
concerning the CSI’s identity, address, and source of information. Captain Kivett
testified that he interviewed the CSI after the individual heard about Lloyd’s assault
and volunteered information to HCSD. Detective Schwab testified that he did not
include the CSI’s identity in the affidavit because the individual feared retaliation
and requested anonymity.
In the suppression order, the trial court found that Detective Schwab identified
the informant as a CSI in the affidavit “to protect the security and welfare” of the
individual. However, this information was not before the magistrate, and “it is error
for a reviewing court to ‘rely[ ] upon facts elicited at the [suppression] hearing that
[go] beyond the four corners of the warrant.’ ” Brown, __ N.C. App. at __, 787 S.E.2d
at 85 (alterations in original) (quoting Benters, 367 N.C. at 673, 766 S.E.2d at 603);
see also id. at __, 787 S.E.2d at 87 (holding that the trial court erred in considering
the detective’s suppression “hearing testimony about what he intended the affidavit
to mean—evidence outside the four corners of the affidavit and not recorded
contemporaneously with the magistrate’s consideration of the application—in
determining whether a substantial basis existed for the magistrate’s finding of
probable cause”). Nevertheless, we conclude that defendant was not prejudiced by
the trial court’s error, because the affidavit contained sufficient information from
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Opinion of the Court
which the magistrate could reasonably infer that the CSI was reliable. McKinney,
368 N.C. at 165, 775 S.E.2d at 824-25.
“[A]n officer may rely upon information received through an informant, rather
than upon his direct observations, so long as the informant’s statement is reasonably
corroborated by other matters within the officer’s knowledge.” Id. (citation and
quotation marks omitted). Here, the affidavit indicates that the CSI’s statement
corroborated significant matters previously known to HCSD, including the general
time and location of the offenses; Lloyd’s physical description of his assailants; and
the suspects’ possession of items similar in appearance to those stolen from Lloyd.
The affidavit, therefore, demonstrated the CSI’s reliability because it established that
“information provided by the informant could be and was independently corroborated
by the police.” Green, 194 N.C. App. at 627, 670 S.E.2d at 638 (emphasis added).
Although defendant complains that the trial court did not specifically find that the
CSI was reliable, he concedes that the court found that the CSI’s information was
independently corroborated by the statement of the
victim[,] by the results of the dog track[,] and by the results
of the investigation of the internet IP address used to place
an order with Domino’s Pizza, as well as the close
proximity of [the Springer Drive residence associated with
the IP address provided by Domino’s] to 217 Springer
Drive, the place which is the subject of the application for
the issuance of a search warrant.
This finding is supported by competent evidence, and therefore, is conclusively
binding on appeal. Cooke, 306 N.C. at 134, 291 S.E.2d at 619.
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Opinion of the Court
Defendant asserts that the instant case is analogous to State v. Benters, 367
N.C. 660, 766 S.E.2d 593 (2014). In Benters, a detective met with a “confidential and
reliable source” who informed him about the existence, location, and owner of an
alleged indoor marijuana growing operation. Id. at 662, 766 S.E.2d at 596. Following
an investigation, officers obtained and executed a search warrant for the property,
where they seized 55 marijuana plants, various growing supplies, multiple firearms,
and $1,540 in cash. Id. at 663, 766 S.E.2d at 597. After the defendant successfully
moved to suppress the evidence, the State appealed, and a divided panel of this Court
affirmed. See generally State v. Benters, 231 N.C. App. 295, 750 S.E.2d 584 (2013).
Our Supreme Court affirmed the State’s appeal. In assessing the sufficiency
of the affidavit, the Court held that the detective’s source was an anonymous
informant, notwithstanding the affiant’s description of the individual as a
“confidential and reliable source of information.” Benters, 367 N.C. at 669, 766 S.E.2d
at 600. The Court explained that because the informant’s “tip, as averred,
amount[ed] to little more than a conclusory rumor,” the State was “not entitled to any
great reliance on it[, and] the officers’ corroborative investigation” was required to
“carry more of the State’s burden to demonstrate probable cause.” Id. The Court
ultimately concluded that under the totality of the circumstances,
the officers’ verification of mundane information, Detective
Hastings’s statements regarding defendant’s utility
records, and the officers’ observations of defendant’s
gardening supplies are not sufficiently corroborative of the
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Opinion of the Court
anonymous tip or otherwise sufficient to establish probable
cause, notwithstanding the officers’ professional training
and experience. Furthermore, the material allegations set
forth in the affidavit are uniformly conclusory and fail to
provide a substantial basis from which the magistrate
could determine that probable cause existed.
Id. at 673, 766 S.E.2d at 603.
The instant case is distinguishable. Unlike Benters, where an informant’s
conclusory and uncorroborated tip initiated the criminal investigation, see id. at 669,
766 S.E.2d at 600, here, HCSD’s independent investigation was already well
underway when Captain Kivett met with the CSI. More importantly, the information
corroborated by HCSD was neither “mundane,” id. at 673, 766 S.E.2d at 603, nor
“qualitatively and quantitatively deficient,” id. at 661, 766 S.E.2d at 595. Rather, the
CSI’s statement was independently corroborated by essential portions of HCSD’s
existing investigation, including the results of the dog track; Lloyd’s description of
the suspects and the stolen items; and the proximity of 217 Springer Drive to the
residence associated with the IP address provided by Domino’s.
Moreover, although the CSI provided the only evidence pointing law
enforcement to 217 Springer Drive, “such a citizen complaint is not necessarily
reviewed in isolation.” McKinney, 368 N.C. at 165, 775 S.E.2d at 825 (upholding a
search warrant where the supporting affidavit demonstrated that “[t]he officer’s
direct observations were . . . consistent with the citizen’s information”). Here, the
affidavit indicates that after speaking with the CSI, Captain Kivett investigated the
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Opinion of the Court
Springer Drive residence associated with the IP address provided by Domino’s.
Although none of the residents matched Lloyd’s description of his attackers, Captain
Kivett discovered that the wireless routing system was unsecured, and therefore,
“anybody in the immediate area would be able to use the internet service.”
In addition, the affidavit alleges that “[t]here is more than a fair probability
the pizza boxes will still be inside or on the curtilage of 217 Springer Drive . . .
[because t]rash services have not collected trash from this residence since the offense
occurred.” This statement demonstrates the officers’ urgent need to obtain a search
warrant before crucial evidence might be lost, particularly given that the offenses,
investigation, and warrant application all occurred within 24 hours. See id. at 164,
775 S.E.2d at 824 (“Recognizing that affidavits attached to search warrants are
normally drafted by nonlawyers in the haste of a criminal investigation, courts are
reluctant to scrutinize them in a hypertechnical, rather than a commonsense,
manner[.]” (citations and internal quotation marks and ellipsis omitted)).
We hold that based on the totality of the circumstances, the affidavit provided
a substantial basis for the reviewing magistrate to conclude that probable cause
existed to justify issuing a search warrant for 217 Springer Drive. The affidavit
contained sufficient facts demonstrating the reliability of the CSI’s information, most
of which was previously and independently corroborated by HCSD’s own thorough
investigation. Furthermore, the affidavit provided a detailed, chronological summary
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Opinion of the Court
of HCSD’s rapidly unfolding investigation and established the urgent need to obtain
a search warrant before critical evidence might be destroyed.
The trial court’s findings of fact are supported by competent evidence and, in
turn, support the court’s conclusion that Detective Schwab’s affidavit provided a
substantial basis for the magistrate to determine that probable cause existed.
Therefore, we conclude that the trial court did not err by denying defendant’s motion
to suppress.
B. Latent Fingerprint Testimony
Defendant next argues that the trial court erred by allowing the State’s expert
witness to testify that latent fingerprints found on Lloyd’s truck and on evidence
seized during the search of 217 Springer Drive matched defendant’s known
fingerprint impressions. We agree.
We review a trial court’s ruling on the admissibility of expert testimony for
abuse of discretion. State v. McGrady, 368 N.C. 880, 893, 787 S.E.2d 1, 11 (2016).
“[A] trial court may be reversed for abuse of discretion only upon a showing that its
ruling was manifestly unsupported by reason and could not have been the result of a
reasoned decision.” Id. (citation omitted).
In 2011, the General Assembly amended N.C.R. Evid. 702 to adopt “the federal
standard for the admission of expert witness testimony articulated in the Daubert
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Opinion of the Court
line of cases.” Id. at 884, 787 S.E.2d at 5. Pursuant to amended N.C. Gen. Stat. §
8C-1, Rule 702(a),
(a) If scientific, technical or other specialized knowledge
will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion,
or otherwise, if all of the following apply:
(1) The testimony is based upon sufficient facts or
data.
(2) The testimony is the product of reliable
principles and methods.
(3) The witness has applied the principles and
methods reliably to the facts of the case.
Subsections (1)-(3) compose the three-pronged reliability test which is new to
the amended rule. McGrady, 368 N.C. at 890, 787 S.E.2d at 9. “The precise nature
of the reliability inquiry will vary from case to case depending on the nature of the
proposed testimony. In each case, the trial court has discretion in determining how
to address the three prongs of the reliability test.” Id. The primary focus should be
“the reliability of the witness’s principles and methodology, not . . . the conclusions
that they generate[.]” Id. (citations and quotation marks omitted). “However,
conclusions and methodology are not entirely distinct from one another[.]” Id.
Accordingly, “when a trial court concludes that there is simply too great an analytical
gap between the data and the opinion proffered, the court is not required to admit
opinion evidence that is connected to existing data only by the ipse dixit of the expert.”
Id.
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In the instant case, Trudy Wood (“Wood”), the State’s witness, testified that
she has worked as a latent fingerprint examiner for the Fayetteville Police
Department since December 2007. According to Wood, each unique fingerprint
contains distinguishing characteristics called “minutia,” or “Galton points.” Wood
testified that it is possible to identify the source of a latent print by comparing the
latent print with an individual’s “known impressions” and evaluating similarities
between the prints’ minutia points.
Defendant did not object to the State’s tender of Wood as an expert in
fingerprint identification. However, defendant repeatedly objected to the foundation
for Wood’s opinion testimony and its admission pursuant to Rule 702(a). Defendant
renews those challenges on appeal.
Wood explained the examination procedure that she uses in determining
whether a latent fingerprint matches a particular individual’s known impressions.
First, Wood identifies the latent print’s pattern type and determines whether the
print was formed by a finger or a palm. If the print contains sufficient identifiable
minutia points, Wood compares the print against the individual’s known impressions.
She performs the examination under an optic camera, which allows her to enlarge
the minutia points and view the prints side by side. Wood explained how she uses
this procedure to ultimately conclude whether the prints were formed by the same
individual:
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[THE STATE:] But when you have a print, you cannot tell
right off the bat which of the four fingers it would be or
maybe the thumb as well. How do you reach a conclusion
as to a finger? How do you arrive at that finger for
comparison?
[WOOD:] Again, it depends on the pattern type. If the
latent print is a swirl, then on the known print of the
individual, I’m only looking at the swirls, if he has arches
and swirls, but my latent is a swirl. I’m not going to look
at the arches of his fingers. I’m going to look at the swirls
because I’m comparing the swirl pattern to another swirl
pattern.
...
[THE STATE:] At what point are you able to – when you’re
looking at two prints side by side, are you able to make an
identification that they match?
[WOOD:] When I believe there’s enough sufficient
characteristics and sequence of the similarities.
Q. Can there be an identification if any portion of a
fingerprint does not match the latent?
A. If the similarity can be explained, a lot of times when a
latent print is lifted, you have distortion which basically
can be as simply as someone’s hand moving when they’re
touching an item. If that can be explained, then an
identification can still be rendered.
Q. As you prepare and conduct a side-by-side comparison,
are you likewise able to exclude certain fingerprints,
known impressions as a contributor to the latent print?
A. Yes, we can. We have identification, we have exclusion
and we have inconclusive, are the three terms that we use.
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Wood testified that she uses the same examination technique as is commonly
used in the field of latent print identification, and she employed this procedure while
conducting her examination in this case. However, when Wood testified to her
ultimate conclusions, she was unable to establish that she reliably applied the
procedure to the facts of this case:
[THE STATE:] As to State’s 35-A in Item 113, can you
again demonstrate to the Jury the comparison between 35-
A and 113?
[WOOD:] State’s Exhibit 35-A is a latent print from the
driver’s door and it contains the left index finger of a
fingerprint card bearing the name of [defendant].
Q. And upon what is that conclusion based?
A. My training and experience.
Q. In looking at the individual minutia with those two
fingerprints; is that correct?
A. That’s correct, the process I explained earlier.
...
[THE STATE:] Item 109-A and 113, can you again
demonstrate to the Jury what comparison those
impressions are based on your examination?
[WOOD:] State’s Exhibit 109-A from the Domino’s chicken
wing box, letter A, is identified as the right middle finger
compared to the fingerprint card bearing the name of
[defendant].
Q. Is your conclusion, again, based upon the same
procedure you described to the Jury?
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Opinion of the Court
A. That’s correct.
Q. Looking for the striated minutia in that fingerprint and
that latent print?
A. That’s correct.
Pursuant to Rule 702(a)(3), this testimony is insufficient. To satisfy Rule 702’s
three-pronged reliability test, an expert witness must be able to explain not only the
abstract methodology underlying the witness’s opinion, but also that the witness
reliably applied that methodology to the facts of the case. Wood previously testified
that during an examination, she compares the pattern type and minutia points of the
latent print and known impressions until she is satisfied that there are “sufficient
characteristics and sequence of the similarities” to conclude that the prints match.
However, Wood provided no such detail in testifying how she arrived at her actual
conclusions in this case. Without further explanation for her conclusions, Wood
implicitly asked the jury to accept her expert opinion that the prints matched. Since
Wood failed to demonstrate that she “applied the principles and methods reliably to
the facts of the case,” as required by Rule 702(a)(3), we hold that the trial court abused
its discretion by admitting this testimony.
Nevertheless, “[a]n error is not prejudicial unless there is a reasonable
probability that, had the error in question not been committed, a different result
would have been reached at trial.” State v. Babich, __ N.C. App. __, __, 797 S.E.2d
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Opinion of the Court
359, 364 (2017). Defendant contends that absent Wood’s testimony, there was a
reasonable probability that the jury would have found him not guilty, because Lloyd
could not identify defendant as his attacker, and the fingerprint testimony was the
only evidence that tied defendant to the actual crime scene. We disagree.
The State presented abundant additional evidence to assist the jury, including:
HCSD’s seizure, during the lawful search of defendant’s home, of items matching the
description of Lloyd’s stolen property; the aluminum bat discovered underneath an
immediately adjacent residence; the close proximity between defendant’s residence
and the unsecured wireless network used to place the Domino’s order; and the
similarity between the descriptions of the suspects that Lloyd and the CSI
independently provided to HCSD. Although Lloyd was unable to positively identify
defendant as one of his attackers, defendant’s booking photograph was admitted into
evidence, and Detective Schwab testified that it was “a fair and accurate depiction”
of defendant’s appearance on the date of his arrest. In light of all of the evidence
pointing to defendant’s guilt, we conclude that he was not prejudiced by the erroneous
admission of Wood’s expert testimony. See id. at __, 797 S.E.2d at 365 (holding that
the defendant was not prejudiced by the trial court’s erroneous admission of
testimony from the State’s expert in retrograde extrapolation, because “even without
the challenged expert testimony, there [wa]s no reasonable possibility that the jury
would have reached a different result”).
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Opinion of the Court
C. Assault Convictions
Defendant’s final argument is that the trial court erred by entering judgments
and imposing sentences for AWDWIKISI and assault inflicting serious bodily injury,
because the same underlying conduct formed the basis for both offenses. We agree.
“[W]hen a trial court acts contrary to a statutory mandate, the defendant’s
right to appeal is preserved despite the defendant’s failure to object during trial.”
State v. Jamison, 234 N.C. App. 231, 237, 758 S.E.2d 666, 671 (2014) (citation
omitted). We review issues of statutory construction de novo. Id. at 238, 758 S.E.2d
at 671.
In North Carolina, assault inflicting serious bodily injury and AWDWIKISI are
statutory crimes. “Unless the conduct is covered under some other provision of law
providing greater punishment,” a person who commits assault inflicting serious
bodily injury is guilty of a Class F felony. N.C. Gen. Stat. § 14-32.4(a). We have held
that the inclusion of this prefatory clause indicates “that the legislature intended that
§ 14-32.4 apply only in the absence of other applicable provisions.” State v. Ezell, 159
N.C. App. 103, 109, 582 S.E.2d 679, 684 (2003). Pursuant to N.C. Gen. Stat. § 14-
32(a), “[a]ny person who assaults another person with a deadly weapon with intent
to kill and inflicts serious injury” is guilty of a Class C felony.
Furthermore, double jeopardy principles prohibit, inter alia, “multiple
convictions for the same offense.” State v. McCoy, 174 N.C. App. 105, 115, 620 S.E.2d
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STATE V. MCPHAUL
Opinion of the Court
863, 871 (2005). Accordingly, “[i]n order for a defendant to be charged with multiple
counts of assault, there must be multiple assaults.” Id. “This requires evidence of a
distinct interruption in the original assault followed by a second assault.” Id.
(citation and quotation marks omitted). Therefore, where the defendant’s conduct is
“covered under some other provision of law providing greater punishment,” the trial
court “cannot convict and sentence him for both §§ 14-32 and 14-32.4 for the same
conduct without violating the double jeopardy provisions of the United States and
North Carolina constitutions.” Ezell, 159 N.C. App. at 111, 582 S.E.2d at 685.
In the instant case, defendant’s convictions for AWDWIKISI and assault
inflicting serious bodily injury are based on the same underlying conduct, to wit: the
3 August 2012 assault of Tyler Lloyd. There is no evidence of a “distinct interruption”
in the assault. McCoy, 174 N.C. App. at 115, 620 S.E.2d at 871.
According to the plain language in N.C. Gen. Stat. § 14-32.4(a), the trial court
was not authorized to enter judgment and sentence defendant for assault inflicting
serious bodily injury, because AWDWIKISI imposes greater punishment for the same
conduct. Ezell, 159 N.C. App. at 111, 582 S.E.2d at 685; see also State v. Davis, 364
N.C. 297, 306, 698 S.E.2d 65, 70 (2010) (vacating the trial court’s judgments for felony
death by vehicle and felony serious injury by vehicle, because the court was not
authorized to impose sentences for those offenses when the defendant’s convictions
for second degree murder and assault with a deadly weapon inflicting serious injury
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Opinion of the Court
“impose greater punishment for the same conduct”). Therefore, we vacate the trial
court’s judgment in 13 CRS 954 entered upon the jury’s verdict finding defendant
guilty of assault inflicting serious bodily injury.
III. Conclusion
Based on the totality of the circumstances, Detective Schwab’s warrant
application and supporting affidavit provided a substantial basis for the magistrate
to conclude that probable cause existed to justify issuing a warrant authorizing a
search of 217 Springer Drive. Although the trial court erred by admitting testimony
from the State’s expert in fingerprint identification, defendant was not prejudiced by
the error. Because defendant’s conduct was “covered under some other provision of
law providing greater punishment,” the trial court was not authorized to impose
punishment for assault inflicting serious bodily injury, and therefore, we vacate the
trial court’s judgment in 13 CRS 954.
NO PREJUDICIAL ERROR IN PART; VACATED IN PART.
Judges STROUD and TYSON concur.
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