# State v. Ethridge > Court of Appeals of North Carolina · February 1, 2005 · 168 N.C. App. 359 URL: https://www.frixlaw.com/law-library/cases/9624380 ## Case - **Full name:** STATE OF NORTH CAROLINA v. ROBERT LOUISE ETHRIDGE, Defendant - **Court:** Court of Appeals of North Carolina - **Decided:** February 1, 2005 - **Citations:** 168 N.C. App. 359; 607 S.E.2d 325; 2005 N.C. App. LEXIS 253 - **Precedential status:** Published - **Opinion:** Dissent by Hunter - **Judges:** Wynn, Thornburg, Hunter - **Cited by:** 10 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9624380 ## Opinion text HUNTER, Judge, dissenting. I respectfully dissent from the majority opinion’s conclusion that the trial court did not err in including the Pattern Jury Instruction for flight in its jury instructions. Therefore, I would grant defendant a new trial. Specifically, I take issue with the majority’s conclusion that sufficient evidence of avoiding apprehension was offered by the State to warrant such an instruction. As the majority notes, the relevant inquiry in determining whether an instruction on flight is properly offered is “whether there is evidence that defendant left the scene . . . and took steps to avoid apprehension." State v. Levan, 326 N.C. 155, 165 , 388 S.E.2d 429, 434 (1990) (emphasis added). An instruction of flight, offered as some *365 evidence of a guilty mind, means more, therefore, than merely departing the scene of the crime, as nearly all perpetrators do. Rather, it implies the defendant took some action to avoid apprehension beyond merely leaving. In State v. Holland, 161 N.C. App. 326, 330 , 588 S.E.2d 32, 36 (2003), this Court found that it was error for the trial court to instruct on flight. In Holland , the evidence showed the defendant left the crime scene with his co-conspirators after one of the victims escaped and ran next door to contact 911. Id. at 327 , 588 S.E.2d at 34 . After returning to the home of a co-conspirator, the defendant was driven to his girlfriend’s house. Id. at 330 , 588 S.E.2d at 36 . The Court in Holland concluded that visiting a friend at their residence after the commission of a crime, by itself, did not raise a reasonable inference that the defendant was attempting to avoid apprehension. Id. Here, Ms. Jones offered testimony that she returned to her home neighboring 916 Lincoln on the day of the incident, around 3:00 p.m. Ms. Jones then testified: A. And in the driveway was a station wagon.' Q. Okay. A. And I pulled into my driveway, which would be on the right. Ms. Jones identified the vehicle as a blue station wagon. Q. Now did you — how many people did you see around the station wagon or inside the station wagon? A. There was two people in the station wagon and two on the outside behind the back of the station wagon. Ms. Jones then stated she recognized one of the parties as her daughter’s former boyfriend, Derrick Hembry. Q. All right. Now when you got home did you talk to your daughter? A. Yes. When I pulled into the driveway I went — I was getting ready to go around the house and the vehicle pulled out of the driveway. And the guy- — the other two guys went down the street. Ms. Jones further testified that she did not see whether the doors of the vehicle were open or shut as she approached the driveway, and that she did not see if any of the people standing at the station wagon were looking at her as she drove by. On cross-examination, Ms. Jones *366 also testified that the front end of the station wagon was facing the street when she saw the vehicle, and that she did not see any of the individuals enter or exit the property at 916 Lincoln. Ms. Jones’ testimony does not reasonably support the theory that defendant did anything more than merely leave the scene of the crime, which under our standard does not support an instruction of flight without further evidence that defendant acted in a manner to avoid apprehension. Levan, 326 N.C. at 165 , 388 S.E.2d at 434 . At the time Ms. Jones arrived, her testimony indicatés that'two men were already in the car and that the car was facing the street. Neither Ms. Jones nor her daughter testified that they observed the vehicle speeding as it drove down the street, evidence which would justify an instruction of flight. See State v. Reeves, 343 N.C. 111, 113 , 468 S.E.2d 53, 55 (1996) (holding that an instruction for flight was warranted when the evidence showed the defendant “ran from the scene of the crime”). Thus, Ms. Jones’ testimony fails to offer evidence that defendant left the scene of the crime in a manner so as to avoid apprehension. The majority also looks to evidence offered by the caretaker of the property, Ms. Brown, that there were items left sitting in the backyard of the house, suggesting defendant left in haste. Both Ms. Brown and Ms. Jones testified that furniture, a coffee table and end table, were sitting in the back yard after the robbery. However, Ms. Brown also testified that a number of items were missing from the house, including two porch swings, two coffee tables, a nineteen inch television, several fans, an air conditioning unit, a carpet shampooer, and an antique pedal sewing machine. The list of stolen items included more than enough items to fill the back of a station wagon. Thus, the mere fact that items remained in the back yard does not reasonably support the theory that defendant fled the scene in a manner so as to avoid apprehension. Finally, the majority suggests the evidence that the police were able to locate defendant’s car, but unable to locate defendant for several weeks, permits an instruction of flight. Here, however, Officer Lewis testified that the blue station wagon identified by Ms. Jones and her daughter was found approximately a week after the incident in the Simon Bright area, precisely where the daughter stated defendant usually parked. Further, although the officers were unable to locate defendant on that occasion, no one testified as to any subsequent active efforts to locate defendant. Rather, Officer Lewis testified there was further investigation to positively identify defendant as *367 the individual known by Ms. Jones’ daughter and Mr. Hembry as Matt Boone. Once defendant’s identity was confirmed, a warrant was sworn out in defendant’s name and placed in the warrant box of the Kinston Police Department on approximately 12 June 2002. The arresting officer, Officer Hewitt, testified that he knew there was an active warrant on defendant and spotted him at Carver Court on 22 June 2002. Officer Hewitt testified that defendant readily identified himself at that time, was cooperative when arrested, and immediately gave a statement as to his actions on the day of the incident. Thus, the failure of the police to locate defendant at the same time they located his car, parked in its usual location, does not reasonably support the theory of flight. See State v. Lampkins, 283 N.C. 520 , 196 S.E.2d 697 (1973) (finding an instruction of flight proper when officer testified he searched for the defendant without success after the commission of the crime). Here, the evidence, even when taken in the light most favorable to the State, merely suggests that defendant left the scene of the crime, much like the defendant in Holland . Unlike other cases where an instruction of flight was justified by specific evidence of efforts made to avoid apprehension, here there was insufficient evidence of such steps to permit the instruction. See State v. Grooms, 353 N.C. 50 , 540 S.E.2d 713 (2000) (finding instruction on flight proper when the defendant hid the victim’s body and asked another individual to assist him in leaving town); Levan, 326 N.C. 155 , 388 S.E.2d 429 (finding instruction on flight proper when the defendant attempted to conceal the victim’s body and threw away the victim’s personal effects). Although the jury was properly instructed that proof of flight alone is insufficient to establish defendant’s guilt, such an instruction in this case, based entirely on circumstantial evidence, cannot be said to be harmless error. Unlike in Holland , where the evidence included three co-defendants identifying the defendant as the perpetrator of the crime, 161 N.C. App. 326, 330 , 588 S.E.2d 32, 36 , the circumstantial evidence here, while sufficient to survive a motion to dismiss, was not sufficient to conclude harmless error. Mr. Hembry offered the only evidence directly linking defendant to the crime scene in a statement given to the police on 12 June 2002, but later rescinded that statement while under oath. Mr. Hembry stated at trial that he did not see defendant at 916 Lincoln after being dropped off by defendant at Ms. Jones’ residence, and that he had only signed the statement because, “[t]hey told me if I wouldn’t sign the paper they were going to lock me up.” Aside from Mr. Hembry’s testimony, the only evidence *368 linking defendant to the crime was testimony that a blue station wagon was seen at 916 Lincoln, and that defendant drove a blue station wagon. As our Supreme Court has previously noted, although flight alone is not sufficient to establish guilt, it provides some evidence which may be considered in determining guilt, and therefore the inclusion of the instruction on flight in a case with only circumstantial evidence linked defendant to the crime may have produced a different result. See State v. Irick, 291 N.C. 480, 494 , 231 S.E.2d 833, 842 (1977) (quoting Proverbs 28:1 (King James), “ ‘[t]he wicked flee when no man pursueth, but the righteous are bold as a lion’ ”). I therefore respectfully disagree with the majority that the trial court did not err in offering this instruction. As such error was not harmless, defendant should therefore be granted a new trial. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9624380. Public record. Not legal advice.