STATE v. POWELL (2023)

Ameana Powell (“Defendant”) appeals a judgment of the trial court sentencing her to a probationary sentence after a jury found her guilty of breaking and entering a motor vehicle, injury to personal property, and misdemeanor larceny. Because Defendant failed to comply with N.C. R. App. P. 4(a)(2) and has failed to show the merit of her appeal, we decline to issue a writ of certiorari.

I. Factual and Procedural History

In the very early morning hours of 6 June 2020, Kristina Hubmer (“Hubmer”) was awakened by banging noises. Hubmer got up from her bed, looked out her window, and saw someone “going through” what she recognized as her neighbor Danielle Daniel's (“Daniel”) car because of the unmistakable Betty Boop steering wheel cover. Hubmer and Daniel lived in the same apartment complex. Hubmer could not recognize who was going through Daniel's car, but she knew it was not Daniel. Hubmer knocked on Daniel's door until she woke up and answered the door, and the pair went to Daniel's car to see what had happened. The driver's side door was dented, a front tire was slashed, scratch marks were on the door handles, a liquid was poured on the seats, and a booster box and jumper cables were taken out of the trunk.

Hubmer obtained a security video from her husband which Daniel watched. Daniel had seen Defendant, face-to-face, once before the breaking into her car ever occurred. Upon viewing the video, she was able to identify the person breaking into her car as Defendant. Daniel called the police and provided the video to them.

Detective Robert Britton (“Detective Britton”) of the Leland Police Department was assigned to the case. He contacted Daniel, who insisted she was 100 percent certain the individual in the video was Defendant. Detectives Britton and Jonathan Kazee (“Detective Kazee”) drove to Defendant's residence. Initially, Defendant denied her involvement, and continued to do so until the detectives told her they had camera footage. Then, Defendant walked the detectives to a truck parked in her front yard, uncovered the bed of the truck to reveal a “jump box or battery pack” and jumper cables, and handed the items over to the detectives. Detective Britton contacted the magistrate's office and obtained a criminal summons against Defendant for the charges of breaking and entering a motor vehicle, injury to personal property, and misdemeanor larceny.

Defendant's trial was held 15 and 16 June 2022. The State played the video at trial and entered it as substantive evidence. In the black and white grainy video, a woman in a loose-fitting shirt or blouse can be seen meddling with a car. Detective Britton testified: “I asked her if these came from Ms. Daniel's vehicle and if she was involved in the incident involving Ms. Daniel's vehicle to which she stated yes.” Detective Kazee testified he had informed Defendant the best practice was to tell the truth, and “[s]he had stated at that point that she did take the items from the vehicle.” Detective Kazee further testified Defendant identified the liquid poured in the vehicle as Sprite. At the conclusion of the evidence, the trial court proposed jury instructions to which neither party objected. The jury found Defendant guilty of all three charges. On 16 June 2022, the trial court sentenced Defendant to 6–17 months imprisonment, suspended for 18 months supervised probation.

Defendant, representing herself, filed written notice of appeal on 24 June 2022.

II. Discussion

As an initial matter, we note the Record does not reflect Defendant served the State with her notice of appeal. A party appealing from a judgment or order of a superior court in a criminal case must “fil[e] notice of appeal with the clerk of superior court and serv[e] copies thereof upon all adverse parties within fourteen days after entry of the judgment or order.” N.C. R. App. P. 4(a)(2). “A failure on the part of the appealing party to comply with Rule 4 deprives this Court of jurisdiction to consider his or her appeal.” State v. Hughes, 210 N.C. App. 482, 484, 707 S.E.2d 777, 778 (2011).

Notwithstanding, a “writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action.” N.C. R. App. P. 21. This Court's power to issue the writ is not unlimited: “an appellate court may only consider certiorari when the petition shows merit, meaning that the trial court probably committed error.” State v. Ricks, 378 N.C. 737, 738, 862 S.E.2d 835, 837 (2021).

With this in mind, we must determine whether Defendant's petition shows merit. Defendant's sole argument is the trial court plainly erred in failing to provide an instruction on the identity of the perpetrator. See N.C.P.I. Crim. 104.90. This instruction provides:

I instruct you that the State has the burden of proving the identity of the defendant as the perpetrator of the crime charged beyond a reasonable doubt. This means that you, the jury, must be satisfied beyond a reasonable doubt that the defendant was the perpetrator of the crime charged before you may return a verdict of guilty.

Id.

“In criminal cases, an issue that was not preserved by objection noted at trial ․ nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N.C. R. App. P. 10(a)(4). “Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993). “It is the duty of the trial court to instruct the jury on all substantial features of a case raised by the evidence.” State v. Shaw, 322 N.C. 797, 803, 370 S.E.2d 546, 549 (1988).

Here, presuming the video was too dark and grainy for Daniel to recognize Defendant as the individual on the video seen meddling with her car, the State presented ample evidence to support the jury's guilty verdicts. First, Defendant retrieved the stolen items from a truck parked in her front yard and gave them to the detectives, constituting strong circumstantial evidence Defendant was the individual who stole the items. Second, both Detectives Britton and Kazee testified Defendant admitted she broke into Daniel's car, although Defendant argues Detectives Britton and Kazee both referred to the same admission in their trial testimony. Even if Defendant is correct, one admission provided the jury with strong evidence tending to point to Defendant as the perpetrator. Finally, Defendant identified Sprite as the liquid poured in the vehicle, a fact she would have known only if she were the perpetrator.

Defendant has failed to demonstrate the trial court probably committed error. Ricks, 378 N.C. at 738, 862 S.E.2d at 837. Furthermore, considering the independent bases upon which the jury could have found Defendant guilty, Defendant has not demonstrated the jury probably would have reached a different result had the trial court given an instruction on the identity of the perpetrator. Jordan, 333 N.C. at 440, 426 S.E.2d at 697.

For the foregoing reasons, we decline to issue a writ of certiorari and dismiss Defendant's appeal.

DISMISSED.

Report per Rule 30(e).

WOOD, Judge.

Judges DILLON and ZACHARY concur.