STATE v. MEDLIN (2019)

Between August and November of 2012, a string of home invasions targeting elderly individuals occurred in Wake County. Defendant, James Kelvin Medlin, was charged and convicted of various offenses arising out of these incidents. On appeal, Defendant challenges the introduction of evidence under Rule 404(b) of the North Carolina Rules of Evidence, various statements made by witnesses that he contends were improper under Rule 701 of the Rules of Evidence, and the trial court's denial of his motion to dismiss.

Where a defendant fails to object to the introduction of evidence at trial, he fails to properly preserve the issue on appeal, and we review the admission of such evidence for plain error. Additionally, where the State introduces substantial evidence of the essential elements of each offense and of a defendant's identity as the perpetrator of those offenses, the trial court properly denies the defendant's motion to dismiss. Here, the State presented sufficient evidence to survive Defendant's motion to dismiss, and Defendant has failed to show plain error in the admission of the evidence he challenges.

BACKGROUND

On 12 August 2012, Karen ¹ resided in Cary with her son, Hugo. Karen was in her early eighties and her son in his late fifties. That morning, Karen went shopping at Walmart near her home and returned at approximately 10:00 A.M. Shortly thereafter, she heard her doorbell ring. Karen stepped out of the door to her kitchen to greet the individual, who identified himself as “the sanitizer man.” Karen knew “something was not right,” so she “hurried to try to get back in the house and close the door.” The man, however, managed to wedge himself inside the door and enter the kitchen. When Karen looked up, the man “had his hand up, and [she] saw a knife with a long blade,” approximately six or seven inches in length. Karen stated that it was “difficult to see what [the man] looked like” since he was wearing a surgical mask; however, she noted that he was “a light-skinned person.”

Karen called out to her son who was in another room in the home. When Hugo entered the kitchen, he placed himself between the man and Karen, who was then able to leave the home through the sliding door in her living room. Hugo also recalled the man wearing a surgical mask and being black with a light skin tone. He also stated that he saw the man's eyes clearly. The man, whom Hugo described as having a deep voice, demanded money, telling Hugo, “[g]ive me your money or I'll kill you.” Hugo told the man to look in his wallet on the dining table, and, when the man realized there was no money in the wallet, he threw the wallet down and went back into the kitchen. As the man was walking into the kitchen, Hugo was able to escape out of the door from which his mother left. Hugo, from outside the home, saw the man walking away on the street. When police arrived, Karen realized her purse and the $ 145.00 in it had been taken.

On 17 August 2012 at approximately 10:30 A.M., Marilyn, a 74-year-old resident of Fuquay-Varina, left her home to go grocery shopping at Walmart in Holly Springs, while her husband, Jerry, stayed at home. Marilyn returned home with the groceries and parked in the garage. After carrying a few bags of groceries into the home, Marilyn turned to go back into the garage to get the rest of the groceries when she saw an African-American man standing in her hallway. The man, raising a knife in his right hand, grabbed Marilyn's shirt and said, “Don't do anything. Don't yell. I'll kill you.” Jerry heard a noise and walked to the hallway, where the man instructed Jerry “not to do anything ․ or I will kill her.” The man demanded money and led Marilyn to her purse and Jerry's wallet, from which he took approximately $ 95.00.

The man believed the two had more money, so he led them both to the master bedroom, where he instructed Marilyn to sit on the bed. After looking through several drawers, the man, continuing to brandish the knife, demanded that Jerry go into the walk-in closet and shut the door behind him. The man threatened to kill Marilyn if Jerry opened the door to the closet. Once Jerry was in the closet, the man demanded that Marilyn “take [her] pants off and get on the bed[.]” Marilyn yelled for her husband to get the gun, and the man ran to check on Jerry. During this time, Marilyn ran from the bedroom and grabbed an iron flower stand to defend herself. The man, finding no gun in the closet, chased after her. The man slapped Marilyn in the face, knocking her into a post, and “reach[ed] and groped [her] crotch[.]” Marilyn asked, “How's that make you feel, a 70-year-old woman?” The man, without responding, ran out the front door.

Marilyn and Jerry told responding officers the man was African-American with a light skin tone and wore light-colored latex gloves. Marilyn stated the man wore “some kind of a wrap around his head,” and Jerry described it as a hat “with a little brim.” Both stated the man wore sunglasses. The couple worked with a sketch artist, but both agreed the final sketch did not look like their attacker.

On 28 August 2012, Luis and his wife left their home in Raleigh to go grocery shopping at Food Lion. After approximately 20 to 30 minutes of shopping, the two left Food Lion, and Luis took his wife to Harris Teeter while he took the groceries they had already purchased home. Luis began carrying the groceries into the home through the front door. He noticed a man “walking back and forth on the front lawn of the property, bobbing behind bushes and acting a bit strange[,]” but did not “check anything out because [the] sidewalk essentially is the front lawn and is traveled by many people during the day[.]” When Luis went to exit his home to return to his car, he noticed a man standing in his doorway. The man stated that Luis's wife had called him “to check out the property for vermin or pests[.]” Luis described the man as African-American and wearing “a food worker's hat of sorts” that was a “cheesecloth top with a band around so that it keeps people's hair out of food[.]”

Luis asked the man to leave, but the man forced his way into the home and stated, “I want your money.” The man instructed Luis not to move from the living room, and the man walked into the kitchen. The man returned to the living room and again demanded money from Luis. Luis did not respond, so the man “threw [him] against the wall.” Luis then reached into his pocket and gave the man $ 150.00 from his wallet. The man again instructed Luis to sit and then “took off[.]”

On 30 November 2012, Noel stopped at Food Lion while on his way home for lunch. Noel was 91 years old and lived in Raleigh. As he was putting his groceries away, Noel heard a knock at his front door. An African-American man with his face covered told Noel, “I've come to check your water” and immediately entered the home. Once inside the home, the man held “a meat cleaver” in his right hand and stated, “I want your money.” Noel gave the man $ 100.00 from his wallet, and the man replied, “I know you got more money. Let's go into the back and see what you have back there.” Noel gave the man $ 200.00 out of an envelope that he kept in his bedroom. The man instructed Noel to walk back out into the den and sit down and then threatened, “If you call anybody, call the police or anybody, ․ I know where you live, and I'll come back and kill you.” The man then walked around the home for a few minutes and then walked by Noel and out the front door.

After composing himself for a few moments, Noel called his daughter-in-law, who called the police for him. Noel could not provide more details about the man's appearance beyond that he looked like “a normal black person” and that he was approximately 5’11” tall, as he was focused on the meat cleaver the man was holding. A subsequent investigation revealed surveillance footage of Noel being followed by a black Chrysler 300.

Defendant became a person of interest in the investigation of these home invasions. In a subsequent search of Defendant's home, police found several boxes of latex gloves and surgical masks, a bag containing latex gloves and various knives, several hats, brown gloves, and sunglasses. Additional latex gloves were found in Defendant's car.

Defendant was indicted on charges of robbery with a dangerous weapon, second-degree kidnapping, attempted first-degree rape, felony breaking and entering, assault on a female, sexual battery, and common law robbery arising out of the incidents in August and November 2012. The State called Defendant's case for trial on 19 September 2016, with Defendant representing himself pro se. A jury convicted Defendant of felonious breaking or entering, robbery with a dangerous weapon, second-degree kidnapping, sexual battery, assault on a female, and common law robbery, and the trial court entered judgment. Defendant timely appeals.

ANALYSIS

A. Rule 404(b)

Defendant challenges evidence introduced by the State under Rule 404(b) and argues the trial court plainly erred in allowing the evidence to be introduced. We disagree.

1. 404(b) Evidence

Prior to Defendant's trial, the State provided notice of its intent to introduce evidence at trial under Rule 404(b) of the North Carolina Rules of Evidence. At trial, and without objection, various officers involved in the investigation testified to the details of other home invasions for which Defendant was not charged.

Detective Corrine McCall (“Detective McCall”) became aware of an incident that occurred in Raleigh on 20 August 2012 involving a victim named Opal. Opal was 96 years old at the time and suffered from dementia. Opal was shopping at Food Lion, and, shortly thereafter, at 8:36 P.M., police received a call that a robbery had taken place at her home. Subsequent investigation revealed that Defendant's cell phone “hit[ ] off” a cell phone tower located 1.2 miles from Opal's residence at 8:12 P.M.

Detective McCall also testified to a home invasion with a “sexual undertone” involving a victim named Roxanne on 24 August 2012. Roxanne had also been grocery shopping prior to the home invasion, which she reported at 6:50 P.M. Although not in the exact timeframe of the reported incident, GPS and cell phone records placed Defendant in proximity of Roxanne's home on 24 August 2012.

Officer Raymond Rivera (“Officer Rivera”) testified that by 6 December 2012, investigators believed that a black Chrysler 300 was involved in a number of the home invasion incidents. On that date, a home invasion occurred at the residence of Tanya in Apex. Tanya had been shopping at a Walmart prior to the incident. Officers later obtained surveillance footage of the Walmart parking lot for the relevant timeframe, which revealed a black Chrysler 300 that “kept circling around the area” and would go “into a spot, stay[ ] there for a while, and then continue[ ] to go through ․”

Finally, Detective McCall testified that on 24 January 2013, a home invasion occurred at the residence of Pablo, who was 90 years old and had returned home from shopping when the incident occurred. At this time, Defendant was under surveillance by law enforcement officers. Sergeant J. Neville (“Sergeant Neville”) followed Defendant as Defendant left his home and dropped off his wife. Sergeant Neville observed Defendant go to a gas station in Raleigh and subsequently to a Kmart parking lot, a Food Lion parking lot, and then a Kroger parking lot. Defendant, after making another stop at a drugstore, began driving on various streets. Defendant eventually turned on a street that had a dead-end, so he had to make a U-turn. Sergeant Neville pulled onto a side street to avoid detection and lost sight of Defendant for approximately 5 minutes before surveillance of Defendant resumed on the same street. Approximately 30 minutes later, a home invasion was reported on the dead-end street on which Defendant was observed driving. Sergeant Neville testified that “the victim had waited 30 minutes to make the phone call.”

2. Discussion

Defendant did not object to the introduction of the Rule 404(b) evidence that he now challenges and, therefore, has the burden of showing that the alleged error rises to the level of plain error. State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326, 333 (2012). “For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice – that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty.” Id. at 518, 723 S.E.2d. at 334 (citation and internal quotation marks omitted). “Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (citations, alterations, and internal quotation marks omitted).

Rule 404(b) of the North Carolina Rules of Evidence provides, in relevant part:

(b) Other crimes, wrongs, or acts. – Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It 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.G.S. § 8C-1, Rule 404(b) (2017). “Rule 404(b) is ‘a clear general rule of inclusion.’ ” State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012) (quoting State v. Coffey, 326 N.C. 268, 278, 389 S.E.2d 48, 54 (1990) ) (emphasis in original).

Our initial inquiry in reviewing the admission of evidence under Rule 404(b) is “whether there was substantial evidence presented by the State tending to support a reasonable finding by the jury that the defendant committed the other crimes, wrongs, or acts.” State v. Adams, 220 N.C. App. 319, 322, 727 S.E.2d 577, 580 (2012). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Williams, 307 N.C. 452, 454, 289 S.E.2d 372, 374 (1983) (citation and internal quotation marks omitted).

The State presented substantial circumstantial evidence that Defendant committed the four other uncharged acts. Defendant, by cell phone records, GPS tracking, and officer surveillance, was geographically connected with each home invasion of elderly victims on the date they occurred. This is not a situation lacking a “demonstrable nexus between the defendant and the act sought to be introduced against him.” State v. English, 95 N.C. App. 611, 614, 383 S.E.2d 436, 438 (1989). While there were not eyewitnesses or forensic evidence placing the Defendant at the scene of each incident, we have not required such evidence to support a reasonable finding by the jury that a defendant has committed another act or crime. See Adams, 220 N.C. App. at 325, 727 S.E.2d at 582. The State's evidence connecting the Defendant to commission of these previous acts was sufficient to allow a reasonable mind to accept the evidence as adequate to support the conclusion that Defendant committed these acts. No greater showing was required.

Having determined the State offered “substantial evidence tending to support a reasonable finding by the jury that the defendant committed the other crimes, wrongs, or acts,” we turn to “a three-pronged analysis regarding the admissibility of the 404(b) evidence.” Adams, 220 N.C. App. at 323, 727 S.E.2d at 580-81. We must “determine whether the evidence was offered for a proper purpose under Rule 404(b), then determine whether the evidence is relevant under Rule 401, and finally determine whether the trial court abused its discretion in balancing the probative value of the evidence under Rule 403.” Id.

Our Supreme Court has held that “evidence that the defendant committed similar offenses is admissible when it tends to establish a common plan or scheme embracing the commission of a series of crimes so related to each other that proof of one or more tends to prove the crime charged and to connect the accused with its commission.” State v. Frazier, 319 N.C. 388, 390, 354 S.E.2d 475, 477 (1987) (citation and internal quotation marks omitted). When evidence of similar offenses is admitted for the purpose of showing a common plan or scheme, “the ultimate test for determining whether such evidence is admissible under Rule 404(b) is whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial” under Rule 403. State v. Davis, 101 N.C. App. 12, 18-19, 398 S.E.2d 645, 649 (1990) (citation, alteration, and internal quotation marks omitted). “Prior acts are sufficiently similar if there are some unusual facts present in both crimes that would indicate that the same person committed them.” Beckelheimer, 366 N.C. at 131, 726 S.E.2d at 159. “It is not necessary that the similarities between the two situations rise to the level of the unique and bizarre. Rather, the similarities simply must tend to support a reasonable inference that the same person committed both the earlier and later acts.” State v. Aldridge, 139 N.C. App. 706, 714, 534 S.E.2d 629, 635 (2000).

The trial court did not err in determining the evidence was admissible for the proper purpose of establishing a common plan or scheme. Defendant does not contest the temporal proximity of the four incidents introduced by the State. Rather, he argues that the incidents are not “sufficiently similar.” However, the State's evidence tended to show that all four of the uncharged incidents involved elderly victims who were targeted upon a return from a grocery store with the attack only lasting a few minutes. See State v. Barker, 240 N.C. App. 224, 237-38, 770 S.E.2d 142, 151-52 (2015) (holding that evidence was properly admitted under Rule 404(b) where the defendant targeted elderly victims and carried out his crime in similar fashions). The four uncharged incidents and the charges for which Defendant was being tried shared sufficient “commonalities and were not the result of happenstance.” Adams, 220 N.C. App. at 327, 727 S.E.2d at 583.

We now turn to the second and third prongs of our analysis to determine whether the evidence presented by the State was relevant and whether the evidence should have nevertheless been excluded under Rule 403. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C.G.S. § 8C-1, Rule 401 (2017). Our “Supreme Court has consistently stated that in a criminal case every circumstance calculated to throw any light upon the supposed crime is admissible and permissible.” State v. Lassiter, 160 N.C. App. 443, 449, 586 S.E.2d 488, 494 (2003) (citing State v. Arnold, 284 N.C. 41, 47, 199 S.E.2d 423, 427 (1973) ). “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ․” N.C.G.S. § 8C-1, Rule 403 (2017).

As stated above, the State offered this evidence for a proper purpose under Rule 404(b) to prove a common plan or scheme. In proving a common plan or scheme, this evidence throws light upon the crimes for which Defendant was charged and “makes it more probable than not that defendant was the culprit.” Adams, 220 N.C. App. at 328, 727 S.E.2d at 583. As such, the Rule 404(b) evidence was relevant. Additionally, the previously discussed similarities and the temporal proximity between the charged crimes and the Rule 404(b) incidences rendered the evidence probative. The probative value of this evidence was not substantially outweighed by its prejudicial effect. Accordingly, Defendant has failed to show error, much less plain error.

B. Lay Witness Testimony

Defendant contends the trial court plainly erred in allowing several statements from officers, arguing these statements were impermissible opinions by lay witnesses. We disagree.

1. Challenged Testimony

On direct examination, the State asked Detective George Daniels (“Detective Daniels”) whether he had “any real leads in terms of who might be involved or [a] suspect?” Detective Daniels responded, “We didn't have any suspect, but we did have similar incidents that had occurred in other areas in Wake County.” Defendant did not object to this statement.

The State also called Officer Rivera as a witness. Officer Rivera testified that, while reviewing security surveillance footage, a vehicle “was a little suspicious in the way that person continued to drive through that parking lot area.” On cross examination, Officer Rivera again repeated that the vehicle “was acting in a suspicious manner.” Officer Rivera also stated on cross examination that he was “pretty confident” “in saying that was the same vehicle” that belonged to Defendant. Defendant did not object to any of these statements.

Sergeant Matthew Frey (“Sergeant Frey”) testified on cross examination he observed surveillance footage of a black Chrysler 300 following a car which he “knew” to be “the victim's car ․ because we had seen the car.” Defendant did not object to this statement.

Detective McCall testified that descriptions given by a number of victims were similar and that the crimes being investigated at that time were similar and may have been related. Detective McCall answered affirmatively when asked by the State whether she was aware of “any robberies that appeared to be targeted at elderly individuals coming home from the shopping center” when Defendant was arrested. Subsequently on cross examination, Defendant asked “So we're assuming that it is my black Chrysler 300 because I am a registered owner of that Chrysler 300; am I correct?” Detective McCall responded:

Yes. Now I'm saying that that was you driving that black Chrysler 300 in those videos, yes. At the time that I viewed the videos, you were developed as a suspect so I looked into you as a suspect. But now, yes, I'm saying that the person that committed these offenses, who followed these people from the grocery store parking lot in the videos where we see the black Chrysler 300, yes, now I'm stating that that's you.

Defendant did not object to any of these statements.

2. Discussion

Defendant concedes that he failed to preserve his argument by objection to these statements at trial. Accordingly, we review for plain error to determine whether Defendant has met his burden of demonstrating that the alleged error was fundamental in that it “had a probable impact on the jury's finding that the defendant was guilty.” Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (citation and internal quotation marks omitted).

Rule 701 of the North Carolina Rules of Evidence provides:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

N.C.G.S. § 8C-1, Rule 701 (2017). “Ordinarily, opinion evidence of a non-expert witness is inadmissible because it tends to invade the province of the jury.” State v. Fulton, 299 N.C. 491, 494, 263 S.E.2d 608, 610 (1980). “The essential question in determining the admissibility of opinion evidence is whether the witness, through study and experience, has acquired such skill that he is better qualified than the jury to form an opinion as to the subject matter to which his testimony applies.” Id. (citation and internal quotation marks omitted).

Assuming, without deciding, that the statements challenged by Defendant were inadmissible or not invited error, Defendant has not shown that this error would rise to the level of plain error. Defendant contends this case is similar to State v. Belk, 201 N.C. App. 412, 689 S.E.2d 439 (2009). In Belk, the trial court permitted a law enforcement officer's testimony identifying the defendant “as the person depicted in the video surveillance footage.” Id. at 414, 689 S.E.2d at 441. Based on the facts of that case, we held “there was no basis for the trial court to conclude that the officer was more likely than the jury correctly to identify Defendant as the individual in the surveillance footage.” Id. at 418, 689 S.E.2d at 443. We concluded that this error was prejudicial and required a new trial, as “the State's case rested exclusively on the surveillance video and Officer Ring's identification testimony.” Id.

The case before us is distinguishable both legally and factually. First, the defendant's argument was preserved in Belk, whereas, here, Defendant did not preserve his argument at trial and we review the challenged testimony for plain error rather than prejudicial error. Id. Second, the State's case did not “rest[ ] exclusively” on the statements made by the officers, as it did in Belk. Id. Given that a host of other evidence independent of these statements was before the jury, the admission of these statements did not have a probable impact on the jury's finding that Defendant was guilty.

C. Motion to Dismiss

Defendant contends the trial court erred in denying his motion to dismiss at the close of the State's evidence, arguing there was insufficient evidence of his identity as the perpetrator of the crimes for which he was convicted. We disagree.

We review a trial court's decision to deny a defendant's motion to dismiss de novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). Our Supreme Court has held:

In ruling on a defendant's motion to dismiss for insufficiency of the evidence, the trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. The trial court must consider the evidence in the light most favorable to the State and the State is entitled to every reasonable inference to be drawn from that evidence.

State v. Turnage, 362 N.C. 491, 493-94, 666 S.E.2d 753, 755 (2008) (citations and internal quotation marks omitted). Evidence need not be direct in order to survive a motion to dismiss – it “need only give rise to a reasonable inference of guilt.” State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988). As such, “[c]ircumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence.” Id. Yet, a “motion to dismiss should be granted ․ where the facts and circumstances warranted by the evidence do no more than raise a suspicion of guilt or conjecture since there would still remain a reasonable doubt as to defendant's guilt.” Turnage, 362 N.C. at 494, 666 S.E.2d at 755.

Here, there was sufficient evidence, taken in the light most favorable to the State and affording it every reasonable inference to be drawn from that evidence, that Defendant was the perpetrator of the crimes for which he was convicted. The State's evidence tended to show that all four offenses were carried out in a similar fashion. Each targeted victim was elderly and approached at their home when they returned from grocery shopping during the day. The perpetrator was described as wearing latex gloves and having his face covered. All victims reported the perpetrator demanding money and leaving after only a few minutes. Additionally, the victims of the offenses reported a knife as being the weapon used during the incident. This common scheme was bolstered by the State's Rule 404(b) evidence discussed supra.

The evidence also tended to show that Noel's vehicle was followed by a black Chrysler 300 in the parking lot of the grocery store, the same vehicle Defendant drove. GPS evidence also placed Defendant less than half a mile from Luis's home on the day in question. A subsequent search of Defendant's home and vehicle revealed additional evidence tying Defendant to the charged offenses. A bag containing latex gloves and several large knives was found in Defendant's home. Police found additional latex gloves and surgical masks in Defendant's home and vehicle.

While Defendant is correct that the description of the perpetrator given to investigating officers by each victim varied somewhat and that there was not forensic evidence connecting him to the scene of the crimes, every hypothesis of innocence need not be ruled out when determining whether a trial court erred in denying a motion to dismiss. Stone, 323 N.C. at 454, 373 S.E.2d at 435. Taken in the light most favorable to the State and affording it every reasonable inference, the State introduced substantial evidence of each element of the charged offenses and Defendant's identity as the perpetrator. The trial court did not err in denying Defendant's motion to dismiss.

CONCLUSION

Defendant has failed to show that the trial court erred in allowing the State to introduce Rule 404(b) evidence. Defendant also failed to show plain error in the admission of various statements made by lay witnesses. The State introduced substantial evidence of each element of the charged offenses and of Defendant's identity as the perpetrator of those offenses. The trial court did not err in denying Defendant's motion to dismiss.

NO ERROR IN PART; NO PLAIN ERROR IN PART.

Report per Rule 30(e).

FOOTNOTES

1.   Pseudonyms are used throughout the opinion to protect the identities of the individuals involved and for ease of reading.

MURPHY, Judge.

Judges STROUD and ZACHARY concur.