IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-925
Filed: 5 May 2015
Pitt County, Nos. 13 CRS 2383-85, 13 CRS 54359, 13 CRS 54365, 13 CRS 54367
STATE OF NORTH CAROLINA,
v.
LINWOOD EARL DUFFIE, Defendant.
Appeal by defendant from judgments entered 21 November 2013 by Judge
Robert H. Hobgood in Pitt County Superior Court. Heard in the Court of Appeals 7
January 2015.
Roy Cooper, Attorney General, by Teresa M. Postell, Assistant Attorney General,
for the State.
Paul F. Herzog for defendant-appellant.
DAVIS, Judge.
Linwood Earl Duffie (“Defendant”) appeals from judgments entered upon jury
verdicts finding him guilty of three counts of common law robbery, three counts of
conspiracy to commit robbery with a dangerous weapon, and attaining habitual felon
status. On appeal, Defendant contends that the trial court erred in (1) admitting a
videotaped interview of Kumetrius Friason (“Friason”), Defendant’s co-perpetrator;
(2) its instruction to the jury defining the term “firearm”; and (3) sentencing him to
consecutive sentences based on a misapprehension of N.C. Gen. Stat. § 14-7.6. After
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Opinion of the Court
careful review, we conclude that Defendant received a fair trial free from prejudicial
error but remand for resentencing.
Factual Background
The State presented evidence at trial tending to establish the following facts:
On 22 April 2013, Defendant drove Friason, his girlfriend’s 16 year-old son, to
Emerald City Internet Café (“Emerald City”), which featured online sweepstakes
games in which players were eligible to win cash prizes. While Defendant went inside
and played games, Friason waited in Defendant’s car. After some time, Friason went
inside Emerald City with a bandana covering his face and demanded that the cashier,
Zapora Washington (“Washington”), “give [him] the money.” As Friason was
emptying the cash register, Washington noticed that he was holding a gun by his side.
Friason put the money in a bag and exited the café. Defendant then ran out the door
of the café, telling Washington that he was going to go find the person who had robbed
the store. Defendant drove to Hopkins Apartments to pick up Friason who was
waiting there with the money from the robbery. Friason kept “a little bit” of the
money, and Defendant “got the rest.”
Six days later on 28 April 2013, Defendant drove Friason to a Family Dollar
store in Winterville, North Carolina. Defendant stayed in his car while Friason
entered the store, told the two employees on duty that “this [is] a robbery,” pointed a
gun, and said “give me your money.” Friason took money from the cash register and
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Opinion of the Court
from one of the employees’ wallets. Friason then told the employees to “lay down on
the floor and don’t even look up. Don’t say a word. . . . if you move, I’ll come back and
I’ll shoot both of you.” Friason ran out of the store, and Defendant picked him up in
the parking lot of a nearby gas station. Defendant and Friason “split” the “thousand
or two” dollars from the Family Dollar store robbery.
On 30 April 2013, Defendant and Friason committed a third robbery at a Trade
Mart convenience store in Greenville, North Carolina. Defendant parked his car
behind a nearby Outback Steakhouse, and Friason exited the vehicle and entered the
Trade Mart. He covered his face with a bandana and approached the two cashiers.
Friason “really didn’t say nothing, [he] just had the gun pointed towards them and
they gave [him] the money.” Friason obtained approximately $1,000.00 from the
Trade Mart and “split it” with Defendant. Defendant then drove Friason back to
Friason’s house.
On 21 May 2013, law enforcement officers apprehended Defendant and Friason
after receiving information from Martin Lichty (“Lichty”), a witness who observed
Defendant’s vehicle parked near a Dollar General store in Beaufort County. Lichty
noticed that the license plate on Defendant’s vehicle was obscured by a black rag,
which he thought was “suspicious,” and that the driver of the vehicle had “shot across
the street” in the same direction as a person who was “dressed in all black” and
proceeding on foot. Shortly thereafter, Lichty saw the vehicle leaving a car wash. He
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Opinion of the Court
noticed that there were now two occupants in the vehicle and the rag that had
previously covered the license plate had been removed. Lichty dialed 911 and gave
the dispatcher the tag number and a description of the vehicle. A resulting
investigation led law enforcement officers to Defendant, who was arrested at the
Carriage House Apartments complex later that day.
On 14 October 2013, a Pitt County grand jury returned bills of indictment
charging Defendant with three counts of robbery with a dangerous weapon, three
counts of conspiracy to commit robbery with a dangerous weapon, and having
attained the status of an habitual felon. The indictments also alleged two statutory
aggravating factors: (1) that Defendant “induced Kumetrius Friason to participate
in the commission of the offense or occupied a position of leadership or dominance of
Kumetrius Friason”; and (2) that Defendant “took advantage of a position of trust or
confidence, including a domestic relationship, to commit the offense.”
A jury trial was held before the Honorable Robert H. Hobgood beginning on 18
November 2013. At the close of the State’s evidence, the trial court reduced the three
counts of robbery with a dangerous weapon to common law robbery but denied
Defendant’s motion to dismiss or reduce the counts of conspiracy to commit robbery
with a dangerous weapon. The jury found Defendant guilty of all charges, including
attaining the status of an habitual felon, and also found that for each offense the
State had proven the existence of an aggravating factor — that Defendant had
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induced Friason to participate in the commission of the offense or occupied a position
of leadership or dominance over Friason — beyond a reasonable doubt. The trial
court entered judgment on the jury’s verdicts and sentenced Defendant as an habitual
felon to three consecutive sentences of 150 to 192 months imprisonment for each of
the common law robbery offenses. The trial court consolidated the three conspiracy
to commit robbery with a dangerous weapon offenses and imposed a concurrent
sentence of 50 to 72 months. Defendant gave oral notice of appeal in open court.
Analysis
Defendant’s brief addresses the following three issues: (1) the admission of a
videotaped interview of Friason by law enforcement officers; (2) the trial court’s
instruction to the jury defining the term “firearm”; and (3) the trial court’s
interpretation of N.C. Gen. Stat. § 14-7.6 as mandating the imposition of consecutive
terms of imprisonment when sentencing an habitual felon.1 We address each of these
arguments in turn.
I. Admission of Videotaped Interview
Defendant first argues on appeal that the admission of a videotaped interview
between law enforcement officers and Friason constituted plain error because some
1 In the “Questions Presented” section of his appellate brief, Defendant raised the additional issue of
whether the trial court erred by denying his motion to dismiss the three counts of conspiracy to commit
robbery with a dangerous weapon. However, Defendant failed to include any substantive argument
addressing this issue in the remainder of his brief. Accordingly, this issue is deemed abandoned on
appeal. See N.C.R. App. P. 28(b)(6) (explaining that any issue “not presented in a party’s brief, or in
support of which no reason or argument is stated, will be taken as abandoned”).
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portions of the video that were “highly inflammatory” to Defendant were not “muted”
or referenced with specificity in the trial court’s curative instruction to the jury.
Defendant asserts that the officers questioning Friason repeatedly attacked
Defendant’s character during the interview by referring to him in derogatory terms,
calling him — among other things — a “coward” and “a piece of crap” who was “trying
to set [Friason] up to take the fall.”
Defendant concedes that his trial counsel only objected once during the
presentation of the video to the jury — an objection which was sustained by the trial
court and followed by a curative instruction in which the court instructed the jury to
disregard the words “career criminal” and “habitual” that had been used to describe
Defendant. As such, Defendant requests that we review the admission of the
remainder of the videotaped interview for plain error. The plain error doctrine “is to
be applied cautiously and only in the exceptional case” and requires a defendant to
demonstrate that the asserted error “had a probable impact on the jury’s finding that
the defendant was guilty.” State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334
(2012) (citations and quotation marks omitted).
A. Rule 403 Argument
Defendant’s primary argument concerning the admission of the video is that
its probative value was substantially outweighed by the danger of unfair prejudice to
him such that the trial court should have excluded the video under Rule 403 of the
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North Carolina Rules of Evidence. Pursuant to Rule 403, a trial court may exclude
relevant evidence if it determines that the probative value of such evidence “is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” N.C.R. Evid. 403.
However, it is well established that plain error review is inapplicable to issues
that “fall within the realm of the trial court’s discretion,” which include a trial court’s
determination as to the admissibility of evidence based on the Rule 403 balancing
test. State v. Cunningham, 188 N.C. App. 832, 837, 656 S.E.2d 697, 700 (2008)
(citation and quotation marks omitted). For this reason, Defendant’s Rule 403
argument concerning the admission of the video is overruled. See id. (refusing to
review under plain error standard defendant’s argument relating to trial court’s
application of Rule 403).
B. Admission for Corroborative Purposes
Defendant also contends that the statements contained in the video did not
corroborate Friason’s trial testimony and, therefore, constituted inadmissible
hearsay that “injected fundamental unfairness into [Defendant’s] trial.” Because,
unlike his argument based on Rule 403, this contention does not involve a purely
discretionary ruling by the trial court, plain error review is appropriate.
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The prior consistent statements of a witness may be offered at trial for
corroborative, nonhearsay purposes. State v. Tellez, 200 N.C. App. 517, 526, 684
S.E.2d 733, 740-41 (2009). “Corroborative testimony is testimony which tends to
strengthen, confirm, or make more certain the testimony of another witness.” State
v. Lloyd, 354 N.C. 76, 103, 552 S.E.2d 596, 617 (2001) (citation and quotation marks
omitted). “In order to be corroborative and therefore properly admissible, the prior
statement of the witness need not merely relate to specific facts brought out in the
witness’s testimony at trial, so long as the prior statement in fact tends to add weight
or credibility to such testimony.” Id. (citation omitted). The trial court “has wide
latitude in deciding when a prior consistent statement can be admitted for
corroborative, nonhearsay purposes.” State v. Bell, 159 N.C. App. 151, 155, 584
S.E.2d 298, 301 (2003) (citation and quotation marks omitted), cert. denied, 358 N.C.
733, 601 S.E.2d 863 (2004).
Defendant claims that while Friason’s statements in the videotaped interview
suggested that Defendant had influence over him and induced him to commit the
robberies, these implications were absent from his trial testimony. Consequently, he
asserts, the prior statements were “contradictory” to Friason’s testimony at trial and
were “not admissible under the guise that [the statements] tended to add weight or
credibility to his trial testimony.”
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Our Supreme Court has explained that “prior consistent statements are
admissible even though they contain new or additional information so long as the
narration of events is substantially similar to the witness’ in-court testimony.” State
v. Williamson, 333 N.C. 128, 136, 423 S.E.2d 766, 770 (1992). As such, when a prior
statement substantially strengthens or confirms in-court testimony, “it is not
rendered incompetent by the fact that there is some variation. Such variations affect
only the weight of the evidence which is for the jury to determine.” Lloyd, 354 N.C.
at 104, 552 S.E.2d at 617 (citations and quotation marks omitted).
Here, Friason’s statements during the interview established a timeline of the
robberies, an account of how they were committed, and Friason’s and Defendant’s
respective roles in the commission of the crimes — topics that were all covered in his
testimony at trial. While the statements Friason made in his interview did, in fact,
contain the additional suggestion that he likely would not have committed the
robberies absent Defendant’s involvement, the statements made during the interview
did not contradict his trial testimony and, indeed, his accounts of the robberies in
both contexts were substantially similar. Both during his interview and at trial,
Friason consistently acknowledged that going to the various stores was his idea, that
Defendant transported them to each location, and that he and Defendant split the
proceeds of the robberies. Accordingly, we cannot conclude that the trial court
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committed error — much less plain error — in admitting the videotape for
corroborative purposes.2
II. Jury Instruction Defining “Firearm”
Defendant next argues that the trial court erred in defining the term “firearm”
in its jury instructions. Both at trial and in his videotaped interview, Friason referred
to the weapon he carried during the robberies as a “BB gun” or a “fake gun.” In
response to a question from the jury as to “how the law defines firearm in regards to
the conspiracy charge,” the trial court instructed the jury that a firearm “is a weapon
that when fired, that the projectile fired therefrom can cause death or serious bodily
injury to a human being if the projectile strikes and enters a vital part of the human
body.”
Defendant acknowledges that his trial counsel failed to object to this
instruction and that as a result, he is entitled only to plain error review on appeal as
to this issue. As noted above, under the plain error standard, Defendant bears the
burden of demonstrating to this Court that the instructional error “had a probable
2Defendant also argues that Friason’s statements in the interview were the only evidence of
the aggravating factor that Defendant “took advantage of a position of trust or confidence, including a
domestic relationship, to commit the offense” and therefore contradicted his trial testimony. Contrary
to the contentions made in Defendant’s brief, however, this aggravating factor was not even submitted
to the jury for determination. Rather, the only aggravating factor actually submitted to the jury was
whether Defendant “induced Kumetrius Friason to participate in the commission of the offense or
occupied a position of leadership or dominance of Kumetrius Friason.” As such, Defendant cannot
show that the admission of such evidence prejudiced him. See State v. Simpson, ___ N.C. App. ___,
___, 748 S.E.2d 756, 760 (2013) (explaining that defendant must establish prejudice in order to show
plain error).
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impact on the jury’s finding that the defendant was guilty.” Lawrence, 365 N.C. at
517, 723 S.E.2d at 333 (citation and quotation marks omitted).
Defendant contends that the trial court plainly erred in giving this instruction
because (1) “Friason testified, without contradiction, that he used a BB gun in all of
the cases for which [Defendant] was on trial”; and (2) the General Assembly has
recognized a distinction between firearms and BB guns. However, we need not
determine the propriety of the trial court’s definitional instruction because even
assuming, without deciding, that the instruction was erroneous, Defendant has failed
to show sufficient prejudice to warrant a finding of plain error.
Here, Defendant was convicted on the charge of conspiracy to commit robbery
with a dangerous weapon — not the charge of robbery with a dangerous weapon itself.
“[C]riminal conspiracy is an agreement between two or more persons to do an
unlawful act . . . . [and] no overt act is necessary to complete the crime of conspiracy.
As soon as the union of wills for the unlawful purpose is perfected, the offense of
conspiracy is completed.” State v. Bindyke, 288 N.C. 608, 615-16, 220 S.E.2d 521, 526
(1975). Notably, Defendant does not argue on appeal that the instruction was
erroneous on the theory that the evidence only supported a finding of the lesser-
included offense of conspiracy to commit common law robbery. Indeed, as noted
above, Defendant has abandoned on appeal his contention that the trial court erred
in denying his motion to dismiss the charges of conspiracy to commit robbery with a
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dangerous weapon. Rather, he appears to be contending that the instruction was
misleading solely because of Friason’s testimony that he used a BB gun or a “fake
gun” to actually commit the robberies.
However, proof that a dangerous weapon was actually used to commit the
robberies was not required to establish that Defendant and Friason conspired to
commit the robberies with a dangerous weapon. See id. at 616, 220 S.E.2d at 526
(“The conspiracy is the crime and not its execution.”). While a determination of
whether the instrument used was, in fact, a firearm capable of endangering life would
have been necessary to the resolution of the issue of whether Defendant was guilty of
robbery with a dangerous weapon, that issue was never placed before the jury because
the trial court reduced the robbery with a dangerous weapon charges to common law
robbery at the conclusion of the State’s case.3
Accordingly, Defendant has not established prejudice from the trial court’s
instruction. See Lawrence, 365 N.C. at 519, 723 S.E.2d at 335 (concluding that
defendant could not “show the prejudicial effect necessary” to establish plain error
3 While not the basis for our ruling on this issue, we note that the evidence presented at trial
did not conclusively establish that the weapon used in the commission of the robberies was, in fact, a
BB gun. The weapon was never recovered, and witnesses testified both that the weapon appeared to
be real and that the robber had threatened to shoot them if they did not comply with his demands.
See State v. Joyner, 312 N.C. 779, 787, 324 S.E.2d 841, 846 (1985) (upholding trial court’s denial of
motion to dismiss robbery with a dangerous weapon charge despite fact that defendant presented
evidence indicating that weapon used was inoperative because “the statement of the robber to the
victim during the course of the robbery that he would kill the victim” constituted evidence that weapon
was capable of endangering or threatening life of victim).
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where trial court’s jury instruction regarding conspiracy to commit robbery with a
dangerous weapon was erroneous).
III. Sentencing
Defendant’s final argument on appeal is that this matter must be remanded
for resentencing because the trial court imposed consecutive sentences based on a
misapprehension of N.C. Gen. Stat. § 14-7.6. We agree.
N.C. Gen. Stat. § 14-7.6 provides that
[w]hen an habitual felon as defined in this Article commits
any felony under the laws of the State of North Carolina,
the felon must, upon conviction or plea of guilty under
indictment as provided in this Article (except where the
felon has been sentenced as a Class A, B1, or B2 felon) be
sentenced at a felony class level that is four classes higher
than the principal felony for which the person was
convicted; but under no circumstances shall an habitual
felon be sentenced at a level higher than a Class C felony.
In determining the prior record level, convictions used to
establish a person’s status as an habitual felon shall not be
used. Sentences imposed under this Article shall run
consecutively with and shall commence at the expiration of
any sentence being served by the person sentenced under
this section.
N.C. Gen. Stat. § 14-7.6 (2013) (emphasis added).
During the sentencing hearing, the trial court sentenced Defendant as an
habitual felon to three consecutive terms of imprisonment for his three common law
robbery convictions, stating that “the law requires consecutive sentences on habitual
felon judgments.” However, based on the language of N.C. Gen. Stat. § 14-7.6, a trial
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court is only required to impose a sentence consecutively to “any sentence being
served by” the defendant. Id. Thus, if the defendant is not currently serving a term
of imprisonment, the trial court may exercise its discretion in determining whether
to impose concurrent or consecutive sentences. See N.C. Gen. Stat. § 15A-1354(a)
(2013) (explaining that generally “sentences may run either concurrently or
consecutively, as determined by the court”).
In State v. Nunez, 204 N.C. App. 164, 169, 693 S.E.2d 223, 227 (2010), we
analyzed the meaning of nearly identical language contained in N.C. Gen. Stat. § 90-
95, which describes the penalties for various drug offenses and states that
“[s]entences imposed pursuant to this subsection shall run consecutively with and
shall commence at the expiration of any sentence being served by the person
sentenced hereunder.” This Court determined that the above-quoted language
means that if the defendant is already serving a sentence,
the new sentence under N.C. Gen. Stat. § 90-95(h) must
run consecutively to that sentence. It does not mean that
when a defendant is convicted of multiple trafficking
offenses at a term of court that those sentences, as a matter
of law, must run consecutively to each other. When this
occurs, the trial court has the discretion to run the
sentences either consecutively or concurrently.
Id.
We conclude that the same is true of the corresponding language in N.C. Gen.
Stat. § 14-7.6. As such, because Defendant was not already serving a sentence at the
time of the sentencing hearing, the trial court was incorrect in its belief that
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consecutive sentences were mandatory in this case. We must therefore remand for
resentencing so the trial court may properly exercise its discretion in determining
whether Defendant’s sentences should run consecutively or concurrently. See id. at
170, 693 S.E.2d at 227 (remanding for resentencing where “trial court erroneously
believed that it was mandated by law to impose consecutive sentences” and
explaining that “[w]hen a trial judge acts under a misapprehension of law, this
constitutes an abuse of discretion”).
Conclusion
For the reasons stated above, we conclude that Defendant received a fair trial,
free from prejudicial error. We remand, however, for a new sentencing hearing so the
trial court may (1) exercise its discretion as to whether Defendant should receive
consecutive or concurrent terms for his offenses; and (2) sentence Defendant
accordingly.
NO PREJUDICIAL ERROR AT TRIAL; REMANDED FOR RESENTENCING.
Judges ELMORE and TYSON concur.
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