STATE OF NORTH CAROLINA v. ELIJAH RASHAD DOBSON (2023)

Elijah Rashad Dobson (“defendant”) appeals from judgment entered upon his conviction for attempted first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, discharge of a weapon into occupied property inflicting serious injury, and possession of a firearm by a convicted felon. On appeal, defendant argues that (1) the trial court erred in denying his motion to dismiss for insufficient evidence, and (2) the trial court committed plain error by failing to make findings regarding a declarant's unavailability and admitting their out-of-court statement in violation of the Confrontation Clause. For the following reasons, we find defendant received a fair trial free from prejudicial error.

I. Background

Defendant was indicted on 10 June 2019 for attempted first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, discharge of a weapon into occupied property inflicting serious injury, and possession of a firearm by a convicted felon. The matter came on for trial in the Orange County Superior Court on 8 August 2022, Judge Grine presiding. The evidence at trial tended to show the following facts.

On 16 April 2019 at approximately 5:25 p.m., multiple witnesses traveling on S. Churton Street in Hillsborough heard gunshots and saw two vehicles stopped beside each other in one lane of traffic. One witness Michelle Green (“Green”) testified that when she heard the gunshots, she saw the black vehicle in front of her “shimmying” as if it were the car being hit by bullets, and she assumed the car next to it was where the shots were coming from. Green then saw someone dive out of the black car on the passenger side, and the black car rolled onto the embankment beside the road. The man who dove out of the car Brandon Howard (“Howard”) had apparent gunshot wounds, and Green testified that he shouted, “My three-year-old daughter is in the car.” None of the witnesses saw a gun or shooting coming from the other car, and no witness testified to seeing the person in the vehicle. The State presented photographic evidence of multiple bullet holes in the driver's side window of Howard's car. Police did not recover a gun in their investigation of the incident.

Multiple witnesses saw the other car speed away and turn onto Interstate 85. Witnesses’ recollections of the color and make of the other vehicle varied. Green stated the car was silver or metallic. Another witness who gave a statement to police Ben Herrington (“Herrington”) believed the car was a tan, beige, or gold Mercedes. Police also took statements from Christine Dunn (“Dunn”), Taylor Brown (“Brown”), and Derrick Parrish who all recalled a white Dodge Durango stopped beside the black car and speeding away after they heard shots. Dunn and Brown testified that they did not remember seeing a gold Mercedes.

After responding to the scene, Sergeants William Felts (“Sergeant Felts”) and Nicole Senter (“Sergeant Senter”) traveled to nearby gas stations to view video footage around the time of the incident. Sergeant Senter went to the Circle K directly across from the scene, and video footage showed a white Dodge Durango leaving the gas station and turning in the opposite direction of the incident. Based on this footage, Sergeant Senter disregarded the reports of a white Dodge Durango's involvement in the incident. The cameras at Circle K did not provide a view of the roadway where the incident occurred.

Sergeant Felts went to the nearby Breeze Thru gas station, approximately one-quarter mile from the scene of the incident, to view footage. During his testimony, Sergeant Felts walked through the video footage from the minutes before the incident, identifying defendant pulling up to the gas station in a gold Mercedes with tinted windows. Sergeant Felts testified that as defendant waited at the cashier, Sergeant Felts observed on video “a bulge in the front of [defendant's] pants, waistband area, which is ․ common for people to hold a weapon in that area” in his experience. The video also showed Howard at the gas station at the same time. After defendant filled up his car, he backed out of the pump area and parked his car in another area of the gas station. When Howard left the gas station, he turned right onto Old 86 toward Interstate 85 and where the shooting occurred. Moments after Howard left, the gold Mercedes turned out of the gas station in the same direction.

The witness Herrington testified that he memorized and told police the license plate of the car that sped away from the incident. Based on this information, officers ran the tag and matched it to a gold Mercedes belonging to Crystal Evans (“Evans”). Lieutenant Charles White (“Lieutenant White”) testified that he visited Evans's home and questioned her, and she stated that she was defendant's mother. Defense counsel objected to Lieutenant White relaying Evans's statement on hearsay grounds, and the trial court found that “to the extent [Evans was] unavailable,” N.C. Gen. Stat. § 8C-1, Rule 804(b)(4) applied and admitted the testimony. The State presented evidence that they had attempted to procure Evans to testify, but she had avoided their multiple attempts of service and hung up the phone when their office or law enforcement called. The trial court further stated on the record that the “issue of her availability is something that we'll need to address down the line,” but the matter was not addressed again. When Lieutenant White testified a second time to Evans's statement, defendant's counsel did not object.

The jury found defendant guilty on all charges on 11 August 2022. The trial court sentenced defendant to 180 to 228 months active imprisonment. Defendant gave oral notice of appeal in open court.

II. Discussion

On appeal, defendant contends the trial court erred in (1) denying his motion to dismiss for insufficient evidence and (2) admitting an out-of-court statement without finding the declarant unavailable in violation of his Sixth Amendment right to confront his witnesses. We address each contention in turn.

A. Motion to Dismiss

Defendant argues that the trial court erred by denying his motion to dismiss at the close of all the evidence because there was not sufficient evidence he shot into Howard's car. We disagree.

Our Court reviews the trial court's denial of a motion to dismiss de novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted). When ruling on a motion to dismiss, “the question for the Court 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 the defendant's being the perpetrator[.]” State v. Griffin, 264 N.C. App. 490, 493, 826 S.E.2d 253, 255–56 (2019) (citation and internal quotation marks omitted). “[I]f the record developed before the trial court contains substantial evidence, whether direct or circumstantial, ․ to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.” State v. Massey, 287 N.C. App. 501, 509–10, 882 S.E.2d 740, 748 (2023) (quoting State v. Osborne, 372 N.C. 619, 626, 831 S.E.2d 328, 333 (2019)).

Evidence is considered substantial if it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Gillis, 158 N.C. App. 48, 56, 580 S.E.2d 32, 38 (2003) (citation omitted). To determine whether the evidence is substantial, this Court must “consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192–93, 451 S.E.2d 211, 223 (1994) (citation omitted), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).

In the light most favorable to the State, the evidence is that defendant arrived at the Breeze Thru gas station in a gold Mercedes, and according to the bulge in his waistband, he had a gun in his possession. Howard came to the same gas station, and defendant waited until he left and followed him out of the gas station and onto Old 86 toward Interstate 85. Eyewitness accounts placed a gold Mercedes at the scene of the shooting, and one witness identified a license plate that matched a gold Mercedes belonging to defendant's mother. These facts allow the reasonable inference that defendant committed the crimes, and the trial court did not err in denying the motion to dismiss.

In the alternative, defendant argues that the evidence was insufficient to support a conviction of attempted first-degree murder because there was no evidence of his premeditation and deliberation. We find this argument unpersuasive.

Attempted first-degree murder requires “[specific intent] to kill another person unlawfully; ․ an overt act calculated to carry out that intent, going beyond mere preparation; ․ malice, premeditation, and deliberation; and [failure to complete] the murder.” State v. Cozart, 131 N.C. App. 199, 202–203, 505 S.E.2d 906, 909 (1998). “In analyzing premeditation and deliberation, courts look to the ‘totality of the circumstances’ rather than a single factor.” State v. Walker, 286 N.C. App. 438, 442, 880 S.E.2d 731, 736 (2022) (citing State v. Hager, 320 N.C. 77, 82, 357 S.E.2d 615, 618 (1987)) (listing a defendant's conduct before and after the killing and the nature and number of a victim's wounds as factors courts consider). Additionally, courts consider “the number of gunshot wounds ․ [to be] probative on the issue, as there is some amount of time, however brief, for thought and deliberation ․ between each pull of the trigger.” Id. (cleaned up).

In the present case, the video footage shows defendant pumping gas, leaving the pump area, and waiting to leave the station until after Howard left, turning in the same direction toward where the incident occurred approximately one-quarter mile down the road. Eyewitnesses at the scene reported hearing multiple gunshots, and the State presented photographic evidence of multiple bullet holes in the window of Howard's car. Taking these facts in the light most favorable to the State, defendant had ample time to develop the requisite intent to kill, and the physical evidence leads to the reasonable inference that defendant possessed this intent.

B. Admission of Hearsay Statement

Defendant next contends (1) that the trial court erred in admitting Evans's out-of-court statement that she is defendant's mother without finding her unavailable in violation of his Constitutional right to confront his witnesses and (2) that this error prejudiced him. We find that even assuming the trial court erred, it did not prejudice defendant.

Because defendant did not object the second time Lieutenant White testified to Evans's out-of-court statement, we review the trial court's action for plain error. Under this standard of review, defendant “has the burden of showing: (i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.” State v. Jones, 358 N.C. 330, 346, 595 S.E.2d 124, 135 (2004) (quoting State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997)) (internal quotation marks omitted).

When a declarant is unavailable to testify as a witness at trial, Rule 804 of the North Carolina Rules of Evidence lists exceptions to the general rule that hearsay is inadmissible evidence. N.C. Gen. Stat. § 8C-1, Rule 804. Rule 804(a) provides the scenarios that permit a trial court to determine a declarant is unavailable, and Rule 804(b) lists the circumstances by which a declarant's out-of-court statement can be admitted for its truth. Id.

Here, the trial court found that to the extent Evans was unavailable, Rule 804(b)(4) excepting statements regarding “the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history” applied to her statement that she is defendant's mother. Id. The trial court did not revisit the issue of Evans's unavailability and made no relevant finding on the record. However, there is an abundance of facts in the record that would support the conclusion that defendant's mother was unavailable due to her unwillingness to appear. This could well explain why counsel for the defendant did not object when the testimony regarding the ownership of the car was offered.

Assuming arguendo that the trial court erred in admitting the statement without finding Evans unavailable, this error did not prejudice defendant. Defendant argues that Evans's statement was the only evidence linking him to the suspect vehicle, and without the admission of the statement, a jury would not have found him guilty. However, video footage showed defendant at the Breeze Thru gas station driving a gold Mercedes. Resolving all contradictions in favor of the State, a car matching that description was seen stopped beside Howard's car and speeding away after gunshots were fired. As explained above, the evidence reasonably supports the conclusion that defendant was driving the gold Mercedes and committed the crimes. Thus, the admission of Evans's statement of their relationship did not prejudice defendant.

III. Conclusion

For all the foregoing reasons, we find that defendant had a fair trial free from error.

NO ERROR.

Report per Rule 30(e).

ARROWOOD, Judge.

Judges DILLON and STADING concur.