State v. Ricks

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA12-1476

NORTH CAROLINA COURT OF APPEALS

Filed: 21 January 2014

STATE OF NORTH CAROLINA

v. Edgecombe County

Nos. 10 CRS 2944

TRAVIS RICKS, 10 CRS 2945

Defendant.

Appeal by defendant from judgments entered 13 June 2012 by

Judge Milton F. Fitch, Jr. in Edgecombe County Superior Court.

Heard in the Court of Appeals 9 May 2013.

Attorney General Roy Cooper, by Assistant Attorney General

Kimberley A. D'Arruda, for the State.

Anna S. Lucas for defendant-appellant.

GEER, Judge.

Defendant Travis Ricks appeals from his convictions of

first degree burglary, possession of a stolen firearm, and

attempted robbery with a dangerous weapon. He primarily

contends on appeal that the indictment for possession of a

stolen firearm was insufficient to confer subject matter

jurisdiction on the trial court because it did not allege that

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defendant knew or had reason to know that the firearm was

stolen. However, the indictment's allegation that defendant

"willfully" possessed the stolen firearm was sufficient to

allege the element of knowledge and, therefore, the indictment

was adequate to vest jurisdiction in the trial court.

Facts

The State's evidence tended to show the following facts.

George Bryant shared a home with his grandson, his stepson

(Elliot Sharpe), his niece, and a family friend named Timmy

Jenkins. On 17 May 2010, Mr. Bryant, his grandson, and his

niece were asleep in the living room. Mr. Sharpe was asleep in

an upstairs bedroom, and Mr. Jenkins was asleep in a bedroom in

the back of the house. At around 3:00 a.m., Mr. Bryant and his

niece were awakened by the sound of the front door of the house

being kicked down.

Mr. Bryant looked up to see two men, both wearing masks,

enter the house with guns. The taller of the two men had

dreadlocks and was carrying a shotgun or rifle. The taller man

told Mr. Bryant and his niece not to move and asked Mr. Bryant

where the money was. When Mr. Bryant responded that he did not

know anything about any money, the taller man told him to lie

still. While the taller man held Mr. Bryant, his niece, and his

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grandson at gunpoint in the living room, the second intruder

went toward the back of the house.

Mr. Jenkins was awakened when the second intruder kicked in

the door of the back room where he had been asleep. The man

struck Mr. Jenkins on the head with a handgun or small shotgun

and demanded money. When Mr. Jenkins denied knowing of any

money, the man struck him again on the head and dragged him into

the living room beside Mr. Bryant. Mr. Jenkins noticed that the

taller intruder, who was still in the living room, had

dreadlocks.

Sometime during these events, Mr. Sharpe woke up, realized

that something was wrong, and called the police. After about 35

minutes, the taller intruder said the police were coming. The

shorter intruder ran out the back door, while the taller man ran

toward the back of the house.

Officer J.A. Palmer of the Rocky Mount Police Department

responded to Mr. Sharpe's call to the police. When Officer

Palmer arrived at the house, he saw a black male running from

the back of the house. The officer did not pursue the suspect

because he understood there were two suspects. He instead

waited at the back door of the house for another officer to

arrive. When Officer F.A. Adamson of the Rocky Mount Police

Department arrived, the two officers entered the house, followed

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by Officer Brent Lawton, also of the Rocky Mount Police

Department.

The officers found Mr. Bryant, his niece, and Mr. Jenkins

lying face down on the living room floor. After being told that

someone else was in the back of the house, Officers Lawton and

Adamson proceeded down the back hallway of the house. Officer

Lawton found defendant sitting on a couch watching television in

a back bedroom of the house. Officer Lawton patted down

defendant and took him to the living room.

Officer Palmer then searched defendant and found a digital

camera. After Mr. Bryant identified the camera as coming from

the residence, Officer Palmer returned the camera to Mr. Bryant.

At the scene, defendant identified himself as Jarvis Battle, and

officers found in defendant's car a social security card and a

driver's license bearing defendant's photograph both in the name

of Jarvis Battle.

After defendant was taken to the police station, an officer

searched Mr. Bryant's house for the weapon used by defendant.

The officer found an AR-15 rifle underneath the covers of the

bed in the bedroom in the back of the house. A search of the

rifle's serial numbers in the National Crime Information Center

database, which tracks stolen firearms, indicated that the rifle

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had been stolen from 151 Blackwell Court in Rocky Mount, North

Carolina.

At the police station, defendant, after being given his

Miranda warnings, admitted that he and Jermaine Pittman had

planned to break into the house to steal marijuana. Because

defendant was the larger of the two men, he had kicked in the

door. However, defendant denied having a gun during the

robbery. Defendant ultimately refused to write out his

statement.

Defendant was indicted for one count of first degree

burglary, two counts of possession of a stolen firearm, robbery

with a dangerous weapon, and assault by pointing a gun. Before

trial, the State withdrew the indictment for one count of

possession of a stolen firearm. At trial, the State presented

the testimony of James Hancock, who identified the rifle found

at the scene as belonging to him. He also testified that he

owned a high capacity clip that had been recovered at the same

time as the rifle. Mr. Hancock and Corporal Trevor Taylor of

the Rocky Mount Police Department confirmed that the rifle had

been stolen on 11 May 2010 when an unknown person kicked in the

back door of Mr. Hancock's home.

The jury found defendant guilty of first degree burglary,

possession of a stolen firearm, and attempted robbery with a

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dangerous weapon. The jury found defendant not guilty of

assault by pointing a gun. The trial court sentenced defendant

to a presumptive-range term of 84 to 110 months imprisonment for

the first degree burglary charge, a consecutive presumptive-

range term of 84 to 110 months imprisonment for the attempted

robbery with a dangerous weapon charge, and a consecutive

presumptive-range term of 10 to 12 months imprisonment for the

possession of a stolen firearm charge. Defendant timely

appealed to this Court.

I

Defendant first contends that the trial court lacked

subject matter jurisdiction over the charge of possession of a

stolen firearm because the indictment did not allege that

defendant knew or had reason to know that the AR-15 rifle was

stolen. "[W]here an indictment is alleged to be invalid on its

face, thereby depriving the trial court of its jurisdiction, a

challenge to that indictment may be made at any time, even if it

was not contested in the trial court." State v. Wallace, 351

N.C. 481, 503, 528 S.E.2d 326, 341 (2000). "On appeal, we

review the sufficiency of an indictment de novo." State v.

McKoy, 196 N.C. App. 650, 652, 675 S.E.2d 406, 409 (2009), cert.

denied, 336 N.C. 405, 735 S.E.2d 329 (2012).

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The indictment charging defendant with possession of a

stolen firearm, in violation of N.C. Gen. Stat. § 14-71.1

(2013), read:

The jurors for the State upon their

oath present that on or about the date of

offense shown and in the county and state

named above, the defendant named above,

unlawfully, willfully, and feloniously did

possess one Rock River AR-15 rifle, the

personal property of James Hancock, which

property was stolen property in that it was

a Rock River AR-15 rifle. This act was in

violation of the above referenced statute.

This Court has held that "[a]s a '[p]rerequisite to its

validity, an indictment must allege every essential element of

the criminal offense it purports to charge,'" State v.

Billinger, 213 N.C. App. 249, 255, 714 S.E.2d 201, 206 (2011)

(quoting State v. Courtney, 248 N.C. 447, 451, 103 S.E.2d 861,

864 (1958)), although it "need only allege the ultimate facts

constituting each element of the criminal offense," State v.

Rambert, 341 N.C. 173, 176, 459 S.E.2d 510, 512 (1995). "Our

courts have recognized that while an indictment should give a

defendant sufficient notice of the charges against him, it

should not be subjected to hyper technical scrutiny with respect

to form." In re S.R.S., 180 N.C. App. 151, 153, 636 S.E.2d 277,

280 (2006). "The general rule in this State and elsewhere is

that an indictment for a statutory offense is sufficient, if the

offense is charged in the words of the statute, either literally

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or substantially, or in equivalent words." State v. Greer, 238

N.C. 325, 328, 77 S.E.2d 917, 920 (1953) (emphasis added).

"For a defendant to be found guilty of possession of a

stolen firearm, the State must present substantial evidence that

(1) the defendant was in possession of a firearm; (2) which had

been stolen; (3) the defendant knew or had reasonable grounds to

believe the property was stolen; and (4) the defendant possessed

the pistol with a dishonest purpose." State v. Brown, 182 N.C.

App. 277, 281, 641 S.E.2d 850, 853 (2007). Defendant argues

that the indictment did not sufficiently allege the third

element: that defendant knew or had reason to know the AR-15 was

stolen.

While the indictment in this case did not specifically

allege defendant's knowledge, our courts have held that the term

"willfully," in the criminal context, "implies that the act is

done knowingly and of stubborn purpose." State v. Falkner, 182

N.C. 793, 798, 108 S.E. 756, 758 (1921). For example, in State

v. Harris, ___ N.C. App. ___, ___, 724 S.E.2d 633, 636 (2012),

the charged criminal offense required that the defendant, a sex

offender, have "'knowingly'" entered the grounds of an

elementary school. This Court held that "[a]lthough the

indictment did not explicitly track the relevant statutory

language by alleging that Defendant was 'knowingly' on the

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school's premises, the fact that the indictment stated that

Defendant acted 'willfully,' sufficed to allege the requisite

'knowing' conduct." Id. at ___, 724 S.E.2d at 637-38.

Here, the indictment alleged that defendant "unlawfully,

willfully, and feloniously" possessed the stolen rifle. This

allegation of willfulness was sufficient under Falkner and

Harris to allege the knowledge element of the offense of

possession of a stolen firearm.

II

Defendant next contends that the trial court erred in

denying his motion to dismiss the charge of possession of a

stolen firearm because there was insufficient evidence that

defendant knew or had reason to know that the AR-15 rifle was

stolen. "This 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).

"'Upon defendant's motion for dismissal, 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 defendant's being the perpetrator

of such offense. If so, the motion is properly denied.'" State

v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000)

(quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918

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(1993)). "Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d

164, 169 (1980). "In making its determination, the trial 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, 451 S.E.2d 211, 223 (1994).

While the State did not present direct evidence of

defendant's knowledge that the rifle was stolen, this Court has

noted that a "[d]efendant's guilty knowledge can be implied from

the circumstances." State v. Wilson, 106 N.C. App. 342, 347,

416 S.E.2d 603, 606 (1992). In Wilson, this Court held that

there was sufficient evidence of guilty knowledge when a stolen

handgun, which had been used in several robberies, was thrown

from a car while the suspects were fleeing the police. Id. at

347-48, 416 S.E.2d at 606.

Similarly, in State v. Taylor, 64 N.C. App. 165, 166, 169,

307 S.E.2d 173, 174, 176 (1983), aff'd in part and rev'd in part

on other grounds, 311 N.C. 380, 317 S.E.2d 369 (1984), when the

defendant, who was suspected of intending to rob a store, walked

into an alley, a person keeping him under surveillance yelled at

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him. At that point, the defendant stooped down next to a parked

car, removed a pistol from his coat, and "surreptitiously hid[]

or dispose[d] of" the pistol by throwing it into nearby bushes.

Id. This Court concluded that "[t]hese circumstances, viewed

in the light most favorable to the State, are sufficiently

incriminating to permit a reasonable inference that defendant

knew or must have known that the firearm was stolen, and thus

sufficient to support a finding to that effect by the jury."

Id. at 169, 307 S.E.2d at 176.

The key to these decisions is that the defendant was trying

to dispose of the weapon, separate and apart from trying to

avoid arrest for another crime. The facts suggested a

consciousness of guilt relating to the gun specifically. See

State v. Wilson, 203 N.C. App. 547, 554, 691 S.E.2d 734, 740

(2010) ("These cases establish the rule that guilty knowledge

can be inferred from defendant's throwing away the stolen

weapon, despite an intervening crime committed by defendant with

the weapon.").

Here, defendant used the rifle to threaten the occupants of

the house during the robbery. When he became aware that the

police were coming, defendant ran to the back of the house where

he hid the rifle under the covers of a bed. He then sat on a

couch, away from the bed, pretending to watch television. When

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defendant was interrogated, defendant admitted to kicking in the

house's door in order to commit a robbery, but he denied having

a rifle. This evidence is sufficient to allow a jury to

conclude that defendant was trying to hide his possession of the

rifle. It, therefore, constitutes incriminating evidence

showing a consciousness of guilt that permits a finding that

defendant knew the rifle was stolen.

In arguing that the motion to dismiss should have been

granted, defendant points to Wilson, Brown, and State v. Allen,

79 N.C. App. 280, 339 S.E.2d 76, aff'd per curiam, 317 N.C. 329,

344 S.E.2d 789 (1986). None of those cases, however, involved

incriminating evidence showing a consciousness of guilt. See

Wilson, 203 N.C. App. at 555, 691 S.E.2d at 740 (reversing

denial of motion to dismiss charge of possession of stolen

firearm when no evidence that defendant knew where gun came from

and defendant's codefendant, following a robbery, took gun to

hide it in codefendant's mother's house); Brown, 182 N.C. App.

at 278-80, 282, 641 S.E.2d at 851-52, 853 (reversing denial of

motion to dismiss charge of possession of stolen firearm when

State's evidence was that officers found stolen gun in bag of

guns in bedroom closet of woman they had pursued after observing

drug deal; woman testified that bag belonged to defendant and

that he made up story about finding bag; and State presented no

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evidence that defendant tried to disassociate himself from

possession of bag); Allen, 79 N.C. App. at 285, 339 S.E.2d at 79

(reversing denial of motion to dismiss charge of possession of

stolen goods based on officers finding stolen VCRs in

defendant's trunk when "defendant exhibited no such

incriminating behavior when [officer] stopped his car," but

rather "defendant freely submitted to a thorough search of the

passenger compartment and the trunk").

The cases cited by defendant are not controlling when, as

here, the State did present incriminating evidence that

defendant tried to abandon the gun and persuade the officers

that he did not have a gun even though he admitted breaking and

entering the house. The trial court, therefore, properly denied

the motion to dismiss.

III

Defendant next argues that the State did not properly amend

the indictment for robbery with a dangerous weapon. Defendant

notes that the trial court orally allowed the State's motion to

amend, but that the amendment was never set out in writing.

The original indictment read:

The jurors for the State upon their

oath present that on or about the date of

offense shown, and in the county and state

named above, the defendant named above

unlawfully, willfully and feloniously did

steal, take, and carry away another's

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personal property, one camera of the value

of $250.00, from the person and presence of

George Henry Bryant. The defendant

committed this act by means of an assault

consisting of having in his possession and

threatening the use of a firearm to wit, a

Rock River AR-15 rifle whereby the life of

George Henry Bryant was threatened and

endangered. This act was in violation of

[N.C. Gen. Stat. 14-87 (2013)].

(Emphasis added.) The indictment thus alleged that defendant

robbed Mr. Bryant of a camera.

At trial, the State moved to amend the indictment to allege

"attempted robbery with a dangerous weapon and to reallege the

particular property to [be] U.S. currency as opposed to [a]

digital camera." The trial court allowed the State's proposed

amendments, but the State never prepared a written amended

indictment. Defendant argues that because the oral order was

ineffective to actually amend the indictment, the trial court

should have allowed his motion to dismiss the robbery with a

dangerous weapon charge because the State failed to present

evidence that he robbed Mr. Bryant of a camera.

Even assuming, without deciding, that the oral indictment

was not effective, the evidence presented by the State as to the

allegations in the original indictment was sufficient to survive

a motion to dismiss. Our Supreme Court has held that "armed

robbery is: '(1) the unlawful taking or an attempt to take

personal property from the person or in the presence of another

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(2) by use or threatened use of a firearm or other dangerous

weapon (3) whereby the life of a person is endangered or

threatened.'" State v. Hope, 317 N.C. 302, 305, 345 S.E.2d 361,

363 (1986) (quoting State v. Beaty, 306 N.C. 491, 496, 293

S.E.2d 760, 764 (1982), overruled on other grounds by State v.

White, 322 N.C. 506, 369 S.E.2d 813 (1988)).

The only issue is whether the State presented evidence that

defendant unlawfully took or attempted to take a camera from Mr.

Bryant. While Mr. Bryant testified that he did not recall

anything being stolen from his house, Officer Palmer testified

that he recovered a camera from defendant's person when the

officer searched defendant. Mr. Bryant indicated that the

camera belonged to him, and Officer Palmer then returned the

camera to Mr. Bryant consistent with his department's practice

when stolen property was recovered at the scene of the robbery.

This evidence was sufficient to support the charge of armed

robbery of a camera. See State v. Patterson, 182 N.C. App. 102,

106-07, 641 S.E.2d 376, 379-80 (2007) (finding sufficient

evidence of armed robbery when defendant threatened victim with

gun, took her purse, and then quickly returned purse); State v.

Bellamy, 159 N.C. App. 143, 145, 148-49, 582 S.E.2d 663, 665-66,

667-68 (2003) (holding evidence sufficient to prove armed

robbery when defendant grabbed videos, fled, and, during chase,

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threatened victim with knife, but officers shortly thereafter

stopped defendant and recovered videos). Defendant has,

therefore, failed to demonstrate any prejudice from the lack of

a written amendment to the indictment.

No error.

Judges ELMORE and DILLON concur.

Report per Rule 30(e).