NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 16 August v. Rowan County Nos. 06 CRS CRS NICHOLAS JERMAINE STEELE

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1 An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA NORTH CAROLINA COURT OF APPEALS Filed: 16 August 2011 STATE OF NORTH CAROLINA v. Rowan County Nos. 06 CRS CRS NICHOLAS JERMAINE STEELE Appeal by defendant from judgments entered 3 February 2010 by Judge R. Stuart Albright in Rowan County Superior Court. Heard in the Court of Appeals 26 May Attorney General Roy Cooper, by Assistant Attorney General LaToya B. Powell, for the State. Duncan B. McCormick, for defendant-appellant. CALABRIA, Judge. Nicholas Jermaine Steele ( defendant ) appeals from judgments entered upon jury verdicts finding him guilty of first degree murder, felonious larceny, felonious possession of stolen goods, and robbery with a dangerous weapon. We find no error. I. Background

2 -2- On the morning of 17 August 2006, Jeffrey Allen Wills ( Wills ) visited the home of Mandy Clontz ( Clontz ). Wills was a regular customer of Clontz at Baby Dolls, an adult entertainment establishment. Defendant had recently begun residing at Clontz home and was involved in a sexual relationship with her. Prior to Wills arrival at Clontz home, defendant told Clontz that Wills kept large sums of money in his truck and that defendant was planning to steal it while Clontz was performing a private dance for Wills. Clontz objected to defendant s plan, but defendant assured her that everything would be fine. Wills arrived and Clontz began dancing for him in her bedroom. While Clontz was dancing, Wills touched her inappropriately. Clontz told Wills to stop, and as a result, he got up to leave. As Wills was leaving, defendant entered the bedroom and hit Wills over the head with a hammer four times, killing him. Defendant then took Wills wallet. Clontz, her two young children, and defendant left the home in Wills vehicle without attempting to clean up the scene. The group drove to the home of Clontz friend, so that she could look after Clontz children. Defendant paid Clontz friend with a $ bill. Clontz and defendant stayed at a

3 -3- hotel for a few days. Three or four days after killing Wills, Clontz, defendant, and a third party removed Wills body from Clontz home and stashed the body in a crawl space of a nearby abandoned home. Approximately one week later, Clontz told her close friend, Tomeca McBride, ( McBride ) that she had killed a man. However, McBride did not initially believe Clontz story. Shortly thereafter, Wills family reported him missing to law enforcement and hung posters listing Wills as missing in the area. McBride saw one of these posters, remembered Clontz story, and contacted law enforcement. Clontz was arrested and, once in custody, told detectives that defendant had killed Wills. Clontz also led the detectives to where Wills body was hidden. On 2 February 2009, defendant was indicted on charges of first degree murder, robbery with a dangerous weapon, felonious larceny, and felonious possession of stolen goods. Defendant was arrested and then voluntarily provided a statement to law enforcement. Defendant claimed that although he had helped Clontz remove Wills body from her home, he was not involved in Wills murder. Defendant also claimed that he found Clontz standing over Wills holding the murder weapon, and

4 -4- that Clontz had killed Wills after he tried to have sex with her. However, defendant later confessed to a fellow inmate in the Rowan County Jail, Ryan Cauthen ( Cauthen ), that he had killed a man with a hammer and taken his wallet. Cauthen began calling defendant, MC Hammer, and defendant responded to this nickname by telling Cauthen, [t]hey re not going to be able to touch this. 1 Beginning 25 January 2010, defendant was tried by a jury in Rowan County Superior Court. At trial, McBride testified over defendant s objection that she initially did not believe Clontz story that she had killed a man. At the close of the State s evidence, defendant moved to dismiss all of the charges against him. Defendant s motion was denied by the trial court. Defendant did not present any evidence. On 3 February 2010, the jury returned verdicts finding defendant guilty of all charges. Defendant was found guilty of first degree murder both on the basis of malice, premeditation, and deliberation and under the felony murder rule. For the first degree murder conviction, the trial court sentenced defendant only on the basis of malice, premeditation, and 1 U Can t Touch This was a popular song from the album Please Hammer, Don t Hurt Em (Capitol Records 1990) by rap artist MC Hammer.

5 -5- deliberation to life in prison, without parole, in the North Carolina Department of Correction ( NCDOC ). For the robbery with a dangerous weapon conviction, defendant was sentenced to a minimum of 103 months to a maximum of 133 months. For the possession of stolen property conviction, defendant was sentenced to a minimum of 10 months to a maximum of 12 months. The sentences were to run consecutively after the end of defendant s first degree murder sentence. Defendant appeals. II. McBride s testimony Defendant argues that the trial court erred by allowing McBride s testimony that she initially did not believe Clontz story. Specifically, defendant contends that McBride s testimony violated Rules 405(a), 608, and 701 of the North Carolina Rules of Evidence. We disagree. A. N.C. Gen. Stat. 8C-1, Rules 405(a) and 608 Rule 405(a) states, in relevant part, [i]n 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. N.C. Gen. Stat. 8C-1, Rule 405(a) (2009). Rule 608 states that evidence of truthful character is admissible only after the character of the

6 -6- witness for truthfulness has been attacked. State v. Richardson, 346 N.C. 520, 534, 488 S.E.2d 148, 156 (1997). In the instant case, McBride testified, as follows, on direct examination by the State: Q: All right [sic]. Now, when Mandy Clontz told you about killing [Wills], did you believe her - [Defense counsel]: Objection. Q. - Ms. McBride? The Court: Overruled. Q. Did you believe her? A. No. Q. Why didn t you believe her? A. Because when she be drinking alcohol, she tells a lot of stories. Defendant contends that McBride s testimony was inadmissible under Rules 405(a) and 608 because it constituted impermissible character evidence which bolstered Clontz credibility and supported the State s theory that defendant, rather than Clontz, had killed Wills. In Richardson, the defendant argued that the trial court erred by allowing a law enforcement officer and an agent of the State Bureau of Investigation to testify that a key witness was telling the truth when he was being questioned. Id. at ,

7 S.E.2d at 156. The defendant argued that by using such inadmissible character evidence to strengthen the witness testimony, the State violated Rules 405 and 608. Id. at 534, 488 S.E.2d at 156. Our Supreme Court concluded that the police officer and the State Bureau of Investigation agent were not giving character testimony, but rather were explaining their investigation following [the] defendant s implication of [the witness]. Id. The Court stated that the officer was not commenting on [the witness ] general credibility; he merely told the jury that he believed [the witness] had told the truth during the investigation. Id. The Court continued, when the State laid out its case, and presented defendant s statements to law enforcement officers, it was evident to the jurors that defendant had implicated [the witness] in the murder. It was then incumbent upon the State to explain to the jurors why [the witness] had been eliminated as a suspect. Id. Similarly, in the instant case, McBride s testimony did not constitute character evidence, but merely clarified why McBride did not immediately contact law enforcement after Clontz told her that she had killed a man. Thus, pursuant to Richardson, this testimony did not violate Rules 405(a) and 608. Moreover, even assuming, arguendo, that the testimony was character

8 -8- evidence, it would not have violated Rules 405(a) and 608. Clontz truthfulness had already been called into question in defendant s opening statement, in which defense counsel intimated that Clontz had a history of lying. This argument is overruled. B. Rule 701 Defendant next argues that Rule 701 renders McBride s testimony inadmissible. Rule 701 states: [i]f 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 clear understanding of his testimony or the determination of a fact at issue. N.C. Gen. Stat. 8C-1, Rule 701 (2009). As long as the lay witness has a basis of personal knowledge for his opinion, the evidence is admissible. State v. Bunch, 104 N.C. App. 106, 110, 408 S.E.2d 191, 194 (1991). McBride s testimony met both requirements of Rule 701. McBride s disbelief of Clontz story was based on a long standing personal relationship between herself and Clontz. McBride had previously testified that Clontz was like a sister to her and that the two women had known each other for years.

9 -9- McBride s skepticism regarding Clontz story was based upon McBride s experience of witnessing Clontz often making up stories after consuming alcohol. In addition, McBride s testimony was helpful to the jury, because it accounted for McBride s failure to immediately contact the authorities after Clontz confessed to her. Therefore, the testimony was admissible under Rule 701. This argument is overruled. III. Motion to Dismiss Defendant argues that the trial court erred by denying his motion to dismiss the charges of robbery with a dangerous weapon and felony murder. Defendant contends that the State failed to produce sufficient evidence that the murder and theft of Wills wallet were part of a continuous transaction. We disagree. In ruling on a motion to dismiss, the trial court need determine only whether there is substantial evidence of each essential element of the crime and that the defendant is the perpetrator. Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion. As to whether substantial evidence exists, the question for the trial court is not one of weight, but of sufficiency of the evidence. In resolving this question, the trial court must examine the evidence in the light most advantageous to the State, drawing all reasonable inferences from the evidence in favor of the State s case.

10 -10- State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781 (2002) (internal citations omitted). A. Robbery with a Dangerous Weapon Defendant first argues that the trial court erred by failing to dismiss his robbery with a dangerous weapon charge. With respect to the charge of robbery with a dangerous weapon, the constituent elements are: (1) an unlawful taking or an attempt to take personal property from the person or in the presence of another, (2) by use or threatened use of a firearm or other dangerous weapon, (3) whereby the life of the person is endangered or threatened. Id. at 303, 560 S.E.2d at 782 (citation omitted). To be found guilty of robbery with a dangerous weapon, the defendant s threatened use or use of a dangerous weapon must precede or be concomitant with the taking, or be so joined by time and circumstances with the taking as to be part of one continuous transaction. Where a continuous transaction occurs, the temporal order of the threat or use of a dangerous weapon and the taking is immaterial. Id. at 304, 560 S.E.2d at In the instant case, viewing the evidence in the light most favorable to the State, it is clear that the murder and robbery of Wills constituted a continuous transaction. Defendant had

11 -11- told Clontz that he had planned to take Wills money while Clontz was dancing for him. Further, Clontz specifically saw defendant hit Wills with a hammer and subsequently go through Wills wallet. Finally, while defendant was in jail pending trial, he told Cauthen that he had robbed a man and killed him with a hammer when he resisted. This evidence was sufficient to overcome defendant s motion to dismiss. This argument is overruled. B. Felony Murder Defendant additionally contends that the trial court should have dismissed his felony murder charge. According to the verdict sheet, the jury returned verdicts finding defendant guilty of first degree murder on the basis of both malice, premeditation, and deliberation, as well as on the basis of the felony murder rule. However, when the trial court entered its first degree murder judgment, it explicitly noted that the sentence was only for defendant s conviction for first degree murder on the basis of malice, premeditation, and deliberation. The trial court did not sentence defendant on the basis of the felony murder rule so that it could then impose consecutive sentences for the convictions of first degree murder and robbery with a dangerous weapon. Since the trial court did not enter

12 -12- judgment on the first degree murder conviction on the basis of the felony murder rule, we need not address defendant s argument regarding the sufficiency of the evidence on that charge. IV. Conclusion The trial court correctly overruled defendant s objection to McBride s testimony since it did not violate N.C. Gen. Stat. 8C-1, Rules 405(a), 608, and 701. The trial court also correctly denied the defendant s motion to dismiss the robbery with a dangerous weapon charge because the hammer attack and theft of Wills wallet were part of a continuous transaction. Defendant received a fair trial, free from error. No error. Judges ELMORE and STEELMAN concur. Report per Rule 30(e).