State v. Ballard

781 S.E.2d 75, 244 N.C. App. 476, 2015 N.C. App. LEXIS 1043
Court of Appeals of North Carolina·Decided December 15, 2015·No. 15-335·Published·Cited by 5 cases

Opinion

DIETZ, Judge.

*476 In June 2013, two masked men robbed a convenience store at gunpoint. They shot up the store, leaving bullet holes and shell casings, and *477 fled in a getaway car. The store's employees and several customers outside witnessed the robbery. The store's security cameras also recorded the robbery.

Over the next month, police tried unsuccessfully to identify and apprehend the perpetrators and ultimately offered a reward for information. Defendant D'Marcus Ballard then came forward and told police he was one of the men who planned and participated in the robbery. He explained that the other men involved in the robbery murdered his cousin, and he was coming forward because he wanted justice. He provided police with details of the robbery that had not been released to the public.

Later, Ballard changed his story and insisted that he was not involved in the robbery. He claimed that he came forward to frame the men who killed his cousin and to get the reward money. At trial, the State introduced Ballard's statements, testimony from other witnesses, and the security footage. Ballard moved to dismiss based on the doctrine of corpus delicti -a seldom invoked legal doctrine that precludes a conviction where the only evidence that the crime occurred is the perpetrator's own testimony. The trial court denied his motion and, after the jury convicted him, Ballard appealed.

The corpus delicti rule does not apply here. To be sure, Ballard's own testimony is the only evidence that he participated in planning and executing the robbery. But there is no dispute that the robbery happened-the evidence includes security footage, numerous eyewitnesses, and bullet holes and shell casings throughout the store. The doctrine of corpus delicti applies where the defendant's confession is the only evidence that the crime occurred at all, not where the confession is the only evidence the defendant was the perpetrator. Accordingly, we find no error in Ballard's conviction.

With respect to Ballard's sentence, the trial court's judgment mistakenly indicated that Ballard's prior felony record level was II

*77 rather than I, a mistake the court later corrected without a new sentencing hearing. Even if we assume that the mistaken record level on the judgment form was not merely a clerical error, we must find that error harmless. Ballard's sentence was within the presumptive range at both record levels and this Court has repeatedly held that an erroneous record level calculation does not prejudice the defendant if the trial court's sentence is within the presumptive range at the correct record level. See, e.g., State v. Ledwell, 171 N.C.App. 314 , 321, 614 S.E.2d 562 , 567 (2005). Accordingly, we find no error.

*478 Facts and Procedural History

On 27 June 2013, two masked men entered the FIDA Mart in Hamilton, North Carolina. There were four employees inside the store and some customers in the parking lot. One of the men pointed a revolver at a store employee and said "freeze." The men then began shooting, sending the store employees scrambling for cover and leaving bullet holes and shell casings throughout the store. The men quickly fled from the scene in a getaway car parked outside. Store security video recorded the incident.

Police interviewed the witnesses, reviewed the security camera footage, and collected the shell casings from the scene, but were unable to identify the perpetrators. Police eventually offered a reward for information about the perpetrators. Nearly a month later, on 23 July 2013, Defendant D' Marcus Ballard contacted police. Ballard explained that he was involved in the robbery, knew the identities of the other perpetrators, and wanted to come clean. He told police that he believed others who participated in the robbery killed his cousin and he wanted justice.

Ballard gave police a detailed explanation of his involvement in planning and committing the robbery, including details that police had not released to the public. Ballard also signed a three-page written confession containing the same information. Police then charged Ballard with attempted armed robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and four counts of assault with a deadly weapon with intent to kill.

At trial, the State called several witnesses who described what happened during the robbery. The State also introduced the store's surveillance video of the robbery. Ballard took the stand in his own defense and told the jurors that he was innocent. He explained that he learned about the robbery from the news media and confessed in an attempt to get back at gang members who killed his cousin. Ballard also moved to dismiss the charges based on the corpus delicti rule. The trial court denied the motion and the jury found him guilty of attempted armed robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and four counts of misdemeanor assault with a deadly weapon.

The trial court sentenced Ballard to consecutive sentences of 60-84 months in prison for the attempted robbery conviction, 20-36 months in prison for the conspiracy conviction, and 75 days for the four assault convictions.

*479 Approximately one month after sentencing, the Department of Public Safety notified the trial court of a possible error on the judgment forms because the forms listed Ballard's prior felony record level as II when it should have been I. On 6 January 2013, the trial court corrected the judgments for the two felony convictions to accurately reflect Ballard's prior felony record level of I. The court did not hold a new sentencing hearing. Ballard timely appealed.

Analysis

I. The Corpus Delicti Rule

Ballard first challenges the trial court's denial of his motion to dismiss based on the corpus delicti rule. For the reasons explained below, we reject Ballard's argument.

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State v. Ballard, 781 S.E.2d 75, 244 N.C. App. 476, 2015 N.C. App. LEXIS 1043 (N.C. Ct. App. 2015).

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