State v. Jacobs

BRYANT, Judge.

Defendant Kahlil Jacobs appeals from judgment entered 16 October 2007 in Guilford County Superior Court following a jury verdict finding him guilty of first degree murder based on the felony murder rule. For the reasons stated herein, we find no prejudicial error and affirm the judgment of the trial court.

Facts

On 20 March 2007, defendant was riding in a car with Keschia Blackwell when defendant asked Blackwell to pull over at Great Stops, a gas station and convenience store on East Market Street in Greensboro, North Carolina. Defendant saw two people he recognized—George Nichols (Nichols) and Dana Hampton (Hampton)— and got out to talk to them. Defendant approached Nichols and Hampton who were standing near Hampton’s automobile which was *601parked beside a gas pump. According to Blackwell, as defendant approached Nichols, Nichols “said something about man, you got me and [defendant] was like give me everything in your pocket----That’s what he told [Nichols].”

So the guy, he pulled out his pocket and he was like man, I ain’t got nothing but three dollars and stuff. So then after that I heard pow, pow, pow .... Then the tall guy [Dana Hampton], he picked up [Nichols] and put him in his car and stuff so then they drove off....
I seen [defendant] go running . . . and that’s the last time I seen him.

Mildred Haizlip also testified for the State. She was a bystander at Great Stops when she observed three men arguing by the gas pumps. Haizlip testified that she saw “a guy get out of a car, walk up to two guys at [sic] gas pump and start[] shooting.” When asked which guy, Haizlip responded “[t]he one that got out of the car with the girl.”

Hampton testified that he and Nichols were friends and were at the Great Stops convenience store on 20 March 2007 for about an hour talking to people in and around the store. About that time, a burgundy car with tinted windows drove into the store parking lot. Hampton testified that the pássenger in the burgundy car rolled his window down and spoke to Nichols. From previous encounters, Hampton recognized the passenger as defendant and testified to the following sequence of events:

Hampton: They had a couple of words. . . . [defendant] jumps out, [and defendant and Nichols] start conversating [sic] at the beginning of the car but it sounds like—it sounds like [sic] altercation fixing to go on.
Sounds like it was something about money
Counsel: [W]here was everyone?
Hampton: In the front of the car by the passenger’s side. Like in the front of the hood.
*602As I’m going around the passenger’s side [defendant is] walking towards the car, backing—looking back towards us.
He had his hand in his pocket the whole time. So he comes out his pocket....
Counsel: Did you see him do this?
Hampton: Yes, sir.
Counsel: Okay. Could you tell what [defendant] had?
Hampton: Maybe like a small revolver.
Counsel: What did you do?
Hampton: I reached for the gun in the back seat and I start firing back.
Counsel: Okay Did your friend [Nichols] have a handgun or any kind of gun for that matter at any point?
Hampton: No, sir, he didn’t have nothing on him.

On cross-examination, defendant asked Hampton the following questions: “Did [Nichols] carry nine millimeters around with him all the time?”; “How many times have you seen [Nichols] carrying a nine millimeter?”; “Are you familiar with [Nichols] reputation in the community?”; “[W]hat do you know [Nichols] was [previously] convicted of?”; “[D]id you hear about [Nichols’] reputation?”. The trial court sustained objections to each question. No offers of proof were made for the record. However, Hampton did testify that Nichols was carrying a nine millimeter the day of the shooting and had left the gun in the back seat of his car.

Defendant testified that at least three weeks prior to 20 March 2007, he sold Nichols two puppies. Nichols gave defendant a down payment of $175 but still owed defendant $350. Defendant made numerous unsuccessful attempts to collect the money Nichols owed him. Defendant testified that on two occasions prior to 20 March 2007, when he confronted Nichols about the money, Hampton was with Nichols and carrying a handgun. On each of these occasions, *603when defendant discussed with Nichols the money owed him, Hampton placed his hand on his handgun. Defendant testified Hampton appeared menacing and ready to draw his gun if defendant’s confrontation with Nichols escalated.

Defendant further testified that on 20 March 2007, he once again saw Nichols with Hampton at the Great Stops convenience store. Defendant again confronted Nichols about the money he was owed. The conversation became heated, and defendant testified Nichols grabbed him and yelled for Hampton to “get him.” Defendant said that as Hampton reached for a weapon, defendant reached for his weapon. Defendant testified that only after hearing a gunshot did he fire two shots, then ran.

Defendant testified that he believed he was going to be shot “[bjecause somebody [was] approaching me pulling a weapon and I’m being held by another person . . . .”

Counsel: What was it that you knew about George Nichols that lead you to believe you were about to be shot?
Defendant: He told me he was a member of the street gang called the Crypts [sic].
Counsel: Did he tell you he had shot people?
Defendant: Yes.

Defendant testified that prior to the day in question “[he had] always seen [Nichols] with guns,” and Nichols had previously stated that he had been in prison.

On voir dire, defendant testified that Nichols had a reputation in his community. Defendant testified that Nichols had boasted to him about robberies, shootings, and drug transactions, and told defendant that he had spent time in prison. Defendant also testified that in his prior experiences with Nichols, Hampton was always present and either Nichols or Hampton if not both were always carrying a gun.

Also, out of the presence of the jury, defendant attempted to offer into evidence certified copies of Nichols’ convictions for armed robbery. The trial court ruled the evidence inadmissible by stating “any alleged probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury or [at the] very minimum needless presentation of cumulative evidence *604based on the testimony.” At the conclusion of the evidence, the trial court denied defendant’s motions to dismiss.

The jury returned a verdict of guilty of first degree murder under the felony murder rule. The trial court entered judgment and commitment on the verdict and sentenced defendant to life imprisonment without parole in the custody of the North Carolina Department of Correction. Defendant appeals.

On appeal, defendant raises four arguments: Defendant argues the trial court erred (I) in denying defendant’s motions to dismiss; (II) in excluding from evidence Nichols’ prior armed robbery convictions; (III) in not allowing defendant to prove Nichols’ character; and (IV) in denying defendant’s motion to dismiss the “short-form” murder indictment.

I

In defendant’s first argument, he contends the trial court erred in denying his motions to dismiss the charges against him at the close of the State’s evidence and at the close of all the evidence. We disagree.

“Upon [a] defendant’s motion for dismissal, the question for the [c]ourt is whether there is substantial evidence (I) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of [the] defendant’s being the perpetrator of such offense. If so, the motion is properly denied.” State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002).

In reviewing challenges to the sufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve. The test for sufficiency of the evidence is the same whether the evidence is direct or circumstantial or both. Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence. If the evidence presented is circumstantial, the court must consider whether a reasonable inference of [the] defendant’s guilt may be drawn from the circumstances. Once the court decides that a reasonable inference of [the] defendant’s guilt may be drawn from the circumstances, then it is for the jury to decide whether the facts, taken singly or *605in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.
Both competent and incompetent evidence must be considered. In addition, the defendant’s evidence should be disregarded unless it is favorable to the State or does not conflict with the State’s evidence. The defendant’s evidence that does not conflict may be used to explain or clarify the evidence offered by the State. When ruling on a motion to dismiss, the trial court should be concerned only about whether the evidence is sufficient for jury consideration, not about the weight of the evidence.

Id. at 596-97, 573 S.E.2d at 869 (internal and external citations and quotations omitted).

In this case, the State presented evidence that defendant approached Nichols, demanded money from him, then shot Nichols twice, resulting in Nichols’ death. We hold this evidence, viewed in the light most favorable to the State, was sufficient to submit to the jury both charges against defendant: first-degree murder based upon premeditation and deliberation; and first-degree murder based upon the felony murder rule, with attempted robbery with a firearm as the underlying felony. Accordingly, defendant’s assignment of error is overruled.

II

In defendant’s second argument, he contends the trial court erred in excluding evidence of Nichols’ prior armed robbery conviction. Defendant argues that the trial court’s failure to admit evidence of Nichols’ prior convictions unfairly impeached defendant’s credibility. We disagree.

Defendant attempted to elicit evidence of Nichols’ prior convictions at two times: (A) during cross-examination of Dana Hampton and (B) when attempting to introduce certified copies of Nichols’ two armed robbery convictions.

A

Defendant first tried to elicit evidence of Nichols’ prior convictions by asking Hampton whether he knew if Nichols was a convicted felon. Hampton replied, “[hjearsay,” but then testified that this information had not come from Nichols. Hampton was then asked, “Well, what do you know he was convicted of?” The trial court sus*606tamed the State’s objection although Hampton still responded, “I don’t know exactly.”

As to Hampton’s testimony regarding Nichols’ criminal record, the record on appeal contains no offer of proof that would suggest Hampton possessed admissible information regarding the convictions. Based on the transcript, it appears the trial court excluded Hampton’s testimony regarding Nichols’ convictions because Hampton indicated he did not have personal knowledge of the nature of those convictions. The record indicates, in Hampton’s own words, that any information he had regarding Nichols’ record was secondhand, and he, in fact, did not know “exactly” what convictions Nichols had.

Further, defendant has presented no argument explaining why he was entitled to ask Hampton about a subject on which he had no personal knowledge, and defendant made no offer of proof at trial that Hampton in fact did know of Nichols’ criminal convictions. See State v. Barton, 335 N.C. 741, 749, 441 S.E.2d 306, 310 (1994) (“In order to preserve the exclusion of evidence for appellate review, the significance of the excluded evidence must be made to appear in the record and a specific offer of proof is required unless the significance of the evidence is obvious from the record.”).

Therefore, the trial court did not err in sustaining objections to defendant’s cross-examination of Hampton regarding Nichols’ criminal record.

B

With respect to the trial court’s exclusion of the certified copy of Nichols’ convictions for armed robbery, defendant argues the prior convictions were relevant to corroborate defendant’s testimony that he would never have attempted to rob Nichols because he knew that Nichols had a prior history of violence and was likely to be armed. According to defendant, “[t]he fact that Mr[.] Nichols had been twice convicted of armed robbery made it more probable that [defendant] was telling the truth when he testified.”

In this argument, defendant asserts that evidence in the form of certified copies of Nichols’ prior convictions was relevant under our Rules of Evidence, Rule 401. However, defendant does not address Rule 404, which defines when character evidence or evidence of prior crimes is admissible. Rule 404(a) of our evidence rules provides that except in limited circumstances, character evidence “is not admis*607sible for the purpose of proving that [a person] acted in conformity therewith on a particular occasion[.]” N.C. R. Evid. 404(a) (2007). However, Rule 404(a)(2) provides an exception to the general rule, allowing an accused to present evidence of a “pertinent trait of character” of the victim to show the victim’s conduct in conformity therewith on the occasion in question. As the leading commentator on the North Carolina Rules of Evidence has explained, this subsection sets out “an exception to the basic Rule barring evidence of character to prove conforming conduct[.]” 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 90 (6th ed. 2004).

Rule 404(b) addresses “[e]vidence of other crimes, wrongs, or acts” and specifies that such evidence “is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” Such evidence “may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” N.C. R. Evid. 404(b) (2007).

In State v. Wilkerson, 356 N.C. 418, 571 S.E.2d 583, rev’g 148 N.C. App. 310, 559 S.E.2d 5 (2002) (per curiam), our Supreme Court adopted Judge Wynn’s dissent in the Court of Appeals opinion and established that certified copies of prior convictions were not admissible under Rule 404(b). Id. Judge Wynn concluded that “in a criminal prosecution, the State may not introduce prior crimes evidence under rule 404(b) by introducing the bare fact that the defendant was previously convicted of a crime . . . .” State v. Wilkerson, 148 N.C. App. 310, 327, 559 S.E.2d 5, 16 (2002) (Wynn, J. dissenting). While evidence of “the facts and circumstances underlying the conviction” might be admissible under Rule 404(b), evidence of the bare fact of a conviction is admissible only under Rule 609. Id. at 321, 559 S.E.2d at 12.

In light of this, we cannot discern any meaningful basis for distinguishing the admission of prior convictions of a defendant and the admission of prior convictions of a victim. Thus, we hold that the certified copies of Nichols’ prior convictions were inadmissible under Rule 404(b). Rule 609, allowing admission of evidence of prior convictions “[f]or the purpose of attacking the credibility of a witness” does not, of course, apply since Nichols was deceased and not a witness. See N.C. R. Evid.' 609(a) (2007).

Rule 404(a) permits evidence of “a pertinent trait of character of the victim of the crime[.]” N.C. R. Evid. 404(a) (2007). Rule 405 *608addresses the method by which this character trait may be proven. Evidence Rule 405 provides:

(a) Reputation or opinion.—In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. Expert testimony on character or a trait of character is not admissible as circumstantial evidence of behavior.
(b) Specific instances of conduct.—In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.

N.C. R. Evid. 405 (a) and (b) (2007). Nichols’ convictions represent specific instances of conduct being offered to prove a trait of character of Nichols—presumably that Nichols was dangerous.

However, defendant has not demonstrated that Nichols’ dangerousness was “an essential element of a . . . defense.” N.C.R. Evid. 405(b). Defendant in fact acknowledges that Nichols’ prior convictions were not being offered to show Nichols acted violently on 20 March 2007 or that defendant was acting in self-defense as a result of any actions by Nichols. Instead, defendant argues the prior convictions were relevant and admissible to enhance his own credibility, to corroborate his own testimony that he was not attempting a robbery of Nichols due to Nichols’ violent past. Defendant has cited no authority suggesting that a simple albeit fervent desire to bolster his own credibility falls within the scope of Rule 405(b), and we have found none.

Therefore, we hold the trial court did not err in excluding the certified copies of Nichols’ armed robbery convictions. Accordingly, this assignment of error is overruled.

Ill

Defendant next argues the trial court erred in not admitting evidence of Nichols’ character. We disagree.

On cross-examination of Hampton, defendant asked whether Hampton was “familiar with [Nichols’] reputation in the community” and whether Hampton had “hear[d] about his reputation[.]” Defendant also asked whether Nichols “carried] nine millimeters *609around with him all the time[.]” The trial court sustained the State’s objections to each question.

Defendant made no offer of proof following any of these rulings, and therefore, this Court has no basis upon which to ascertain the admissibility of this evidence. Thus, defendant has waived his right to challenge these rulings on appeal. State v. Stiller, 162 N.C. App. 138, 142, 590 S.E.2d 305, 307 (2004) (“To prevail on a contention that evidence was improperly excluded, either a defendant must make an offer of proof as to what the evidence would have shown or the relevance and content of the answer must be obvious from the context of the questioning.”). This Court has explained that “[t]he reason for such a rule is that the essential content or substance of the witness’ testimony must be shown before we can ascertain whether prejudicial error occurred. In the absence of an adequate offer of proof, we can only speculate as to what the witness’ answer would have been.” State v. Clemmons, 181 N.C. App. 391, 397, 639 S.E.2d 110, 114, aff’d, 361 N.C. 582, 650 S.E.2d 595 (2007) (citations and internal quotations omitted).

However, even assuming arguendo we should address defendant’s argument, we do not believe defendant has demonstrated prejudice. Defendant must show that the answers to these questions would have so bolstered the credibility of his claim—that he lacked any motive to try to rob Nichols—that there is a reasonable possibility the jury would have reached a different verdict. See N.C. Gen. Stat. § 15A-1443 (a) (2007) (“A defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.”).

Defendant was allowed to testify that Nichols stated that “he was a member of the street gang called the Crypts [sic]” and that he had shot people in the past. Defendant further testified that whenever he saw Nichols and Hampton together either Nichols or Hampton or both had a gun. On cross-examination of Hampton, defendant was able to establish that Nichols was carrying a nine millimeter gun on the day of the shooting and had placed the gun in the back of Hampton’s car. The jury also heard testimony from Hampton that both he and Nichols were convicted felons.

In other words, the only information that was excluded was the fact that Nichols had committed an armed robbery, that he had *610kicked in people’s doors, and that he had tied them up. In light of the evidence before the jury regarding Nichols’ gang membership, defendant’s knowledge that Nichols had shot people, Nichols’ status as a convicted felon, Nichols’ gun possession on the date of the shooting and Hampton’s likely gun possession, we cannot conclude that a reasonable possibility exists that the jury would have reached a different verdict if the trial court had not sustained the State’s objection and admitted the challenged evidence of Nichols’ character.

This assignment of error is dismissed.

IV

Last, defendant argues the trial court lacked subject matter jurisdiction where defendant was indicted pursuant to a short-form murder indictment. We disagree.

In State v. Allen, 360 N.C. 297, 626 S.E.2d 271 (2006), our Supreme Court addressed a defendant’s contention that his “short-form indictment was insufficient because it failed to allege all the elements of first-degree murder.” Id. at 316, 626 S.E.2d at 286. Our Supreme Court disagreed and reasoned as follows:

We have consistently ruled short-form indictments for first-degree murder are permissible under N.C.G.S. § 15-144 (2005) and the North Carolina and United States Constitutions. See State v. Mitchell, 353 N.C. 309, 328-29, 543 S.E.2d 830, 842, cert. denied, 534 U.S. 1000 (2001); State v. Davis, 353 N.C. 1, 44-45, 539 S.E.2d 243, 271 (2000), cert. denied, 534 U.S. 839 (2001); State v. Braxton, 352 N.C. 158, 173-75, 531 S.E.2d 428, 436-38 (2000), cert. denied, 531 U.S. 1130, (2001); State v. Wallace, 351 N.C. 481, 504-08, 528 S.E.2d 326, 341-43, cert. denied, 531 U.S. 1018 (2000). We see no compelling reason to depart from our prior precedent on this issue. Here the indictment'read: “The jurors for the State upon their oath present that on or about the 8th day of July, 1999, and in the county named above the defendant named above unlawfully, willfully and feloniously and of malice aforethought did kill and murder [victim]. Offense in violation of G.S. 14-17.” As this indictment meets the requirements of N.C.G.S.- § 15-144, we overrule defendant’s assignment of error.

Id. at 316-17, 626 S.E.2d at 286.

Here, defendant was indicted for first degree murder in violation of N.C. Gen. Stat. § 14-17. The indictment read: “The jurors for the *611State upon their oath present that on or about [3/20/07] and in the county named above the defendant named above unlawfully, willfully and feloniously did of malice aforethought kill and murder George Nichols, III.”

As in Allen, we hold this short-form murder indictment meets the requirements of N.C.G.S. § 15-144. Accordingly this assignment of error is overruled.

No prejudicial error.

Judge GEER concurs. Judge McGee concurs in part and dissents in part by separate opinion.