State v. Crowder

• Court: Court of Appeals of North Carolina
• Decided: March 18, 2014
• Docket: 13-824
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-824 NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County No. 10 CRS 205883 MICHAEL RASHAWN CROWDER

Appeal by defendant from judgment entered 26 February 2013

by Judge C. Thomas Edwards in Mecklenburg County Superior Court.

Heard in the Court of Appeals 7 January 2014.

Attorney General Roy Cooper, by Special Deputy Attorney General Melissa L. Trippe, for the State.

Marilyn G. Ozer for defendant.

HUNTER, Robert C., Judge.

Defendant Michael Crowder appeals the judgment entered

after a jury convicted him of first degree murder on the basis

of felony murder. After careful review, because the State

failed to present substantial evidence that defendant

constructively possessed or attempted to possess the marijuana

found in the victim’s van, we reverse the trial court’s order -2- denying defendant’s motion to dismiss and vacate defendant’s

conviction for felony murder.

Background

The State’s evidence presented at trial tended to establish

the following: Defendant and Aaron Shawn Wood (“Mr. Wood”) knew

each other while they were residents at McLeod Center, a halfway

house. After Mr. Wood left the halfway house, sometime in late

2006 or early 2007, he started a trucking company with Rickie

Hooper (“Mr. Hooper”). On 6 March 2007, Mr. Wood and Mr. Hooper

drove to Columbia, South Carolina to pick up one of their trucks

that had broken down. During the trip, Mr. Wood told Mr. Hooper

that he was stressed about money. However, Mr. Wood told Mr.

Hooper that a “guy from the halfway house” owed him money and

that Mr. Wood was meeting with this “guy” the next day. Mr.

Wood claimed that after this meeting, their “money problems”

would be solved.

The next day, on 7 March, Mr. Hooper called Mr. Wood

several times to discuss loads coming in later in the week.

Finally, around six that evening, Mr. Wood answered his phone.

Mr. Hooper testified, over objection, that he heard two voices

in the background; Mr. Hooper claimed that Mr. Wood told him

that one of the guys in the background was “Travis” from the -3- halfway house. Mr. Wood then told Mr. Hooper that he would call

him back, but Mr. Wood never did.

Sheldon Wood, Mr. Wood’s brother, (“Sheldon”) testified at

trial that Mr. Wood was involved in drug dealing. On the day

Mr. Wood was killed, Mr. Wood called Sheldon and asked him to

ride with him to meet “a halfway dude.” Sheldon was working

that day, so he was unable to go with him.

On 7 March 2007, George Young (“Mr. Young”) and his family

were eating dinner at their residence on Greenview Place. After

he heard three or four gunshots, he got up and looked out the

window. Mr. Young testified that he saw two men in a maroon van

and one man outside the van. The passenger in the van was later

identified as defendant. Investigators later determined that

the owner of the van was Mr. Wood’s fiancée. The man outside of

the van, whom Mr. Young described as tall and slim and

recognized from the neighborhood, was shooting into the van’s

driver’s side window. Mr. Young claimed he heard three to four

more shots. Mr. Young observed the passenger in the van bending

over as if he was picking something up. The driver of the van,

later identified as Mr. Wood, was slumped over. After the

shooting stopped, Mr. Young stepped out onto his front porch and

saw a burgundy BMW drive past. Defendant was driving the -4- vehicle and the tall, slim shooter was sitting in the passenger

seat. Mr. Wood died from multiple gunshot wounds.

Later evidence and eyewitness testimony would indicate that

the shooter was Travis Cunningham (“Mr. Cunningham”). Prior to

trial, the State made a motion in limine to preclude defendant

from introducing evidence at trial that Mr. Cunningham was not

charged in connection with this crime. The trial court deferred

ruling on the State’s motion until it heard evidence; however,

during the presentation of the State’s evidence, the trial court

ruled that defendant could ask anything about the investigation

that tended to show Mr. Cunningham was the shooter except

defendant was not allowed to ask about the fact that Mr.

Cunningham was not charged in relation to this crime.

In Mr. Wood’s van, investigators collected five bricks of

marijuana weighing around 500 grams each, or approximately one

pound, and two broken bricks of marijuana weighing about 200

grams each. In addition, investigators found a brick of

marijuana lying on the ground outside the van near the passenger

door. A fingerprint analyst for the State testified that only

one of the bricks of marijuana had defendant’s fingerprint on

it. Additionally, Mr. Cunningham’s fingerprint was found on a

different brick of marijuana. No other fingerprints found on -5- the marijuana bricks were identified as defendant’s.

Investigators were able to determine that a phone found in Mr.

Wood’s van was registered to defendant.

Susan Sarvis, a homicide detective with the Charlotte-

Mecklenburg Police Department, (“Detective Sarvis”) testified

that DNA found on a cigarette butt outside the van belonged to

Mr. Cunningham. Detective Sarvis stated at trial that Mr.

Cunningham was dating defendant’s sister.

Defendant did not present any evidence at trial.

The trial court instructed the jury on felony murder, with

the underlying felony being that defendant, either by himself or

acting in concert with another, committed or attempted to commit

felony possession of marijuana with the use of a deadly weapon.

On 26 February 2013, the jury found defendant guilty of felony

murder. The trial court sentenced defendant to life

imprisonment without parole. Defendant timely appealed.

Arguments

Defendant first argues that the trial court erred in

denying his motion to dismiss the charge of felony murder.

Specifically, defendant contends that the State failed to

present sufficient evidence of the underlying offense of

possession or attempted possession of a felonious amount of -6- marijuana. Since the State’s evidence of the alleged drug

transaction only rose to the level of suspicion and conjecture,

there was insufficient evidence to support the underlying

felony, and the trial court should have granted his motion to

dismiss. We agree.

“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, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150

(2000) (internal quotation marks omitted). “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), cert denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).

However, if the State’s evidence “is sufficient only to raise a -7- suspicion or conjecture as to either the commission of the

offense or the identity of the defendant as the perpetrator, the

motion to dismiss must be allowed[,] . . . even [if] the

suspicion aroused by the evidence is strong.” State v. Malloy,

309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983).

“First-degree murder by reason of felony murder is

committed when a victim is killed during the perpetration or

attempted perpetration of certain enumerated felonies or a

felony committed or attempted with the use of a deadly weapon.”

State v. Gibbs, 335 N.C. 1, 51, 436 S.E.2d 321, 350 (1993),

cert. denied, 512 U.S. 1246, 129 L. Ed. 2d 881 (1994). Here,

the State submitted possession or attempted possession of a

felonious amount of marijuana as the underlying felony offense.

See State v. Herring, 176 N.C. App. 395, 400, 626 S.E.2d 742,

746 (2006) (noting that trafficking or attempted trafficking in

cocaine may serve as the underlying felony in a felony murder

charge when a defendant, either by himself or acting in concert,

uses a deadly weapon). Defendant contends that the State failed

to present sufficient evidence to support the elements of

possession or attempted possession of a felonious amount of

marijuana; thus, the trial court erred in denying his motion to

dismiss. -8- Our Supreme Court has noted that:

In a prosecution for possession of contraband materials, the prosecution is not required to prove actual physical possession of the materials. Proof of nonexclusive, constructive possession is sufficient. Constructive possession exists when the defendant, while not having actual possession, has the intent and capability to maintain control and dominion over the narcotics. Where such materials are found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession. However, unless the person has exclusive possession of the place where the narcotics are found, the State must show other incriminating circumstances before constructive possession may be inferred.

State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270-71

(2001) (internal citations and quotation marks omitted). In

this case, the fact that defendant did not actually possess the

marijuana in Mr. Wood’s van is not in dispute. As a result, the

only basis for the possession charge would be under a

constructive possession theory. However, the mere fact that

defendant was in the van where marijuana was found does not, by

itself, establish constructive possession, State v. Weems, 31

N.C. App. 569, 571, 230 S.E.2d 193, 194 (1976); the State must

provide other “incriminating circumstances,” Matias, 354 N.C. at -9- 552, 556 S.E.2d at 270-71, to survive defendant’s motion to

dismiss.

Here, while it is undisputed that defendant was sitting in

a van containing approximately seven pounds of marijuana when

Mr. Wood was shot, defendant was not the only person in the van

or near the van and, consequently, he did not have exclusive

control of the van. Therefore, the State was required to

provide additional incriminating circumstances establishing

constructive possession. “[C]onstructive possession depends on

the totality of circumstances in each case,” so that “[n]o

single factor controls.” State v. James, 81 N.C. App. 91, 93,

344 S.E.2d 77, 79 (1986).

Based on the evidence presented at trial, the State has

failed to do so. The State presented no evidence that defendant

and Mr. Wood had dealt drugs to each other in the past; in fact,

there was no evidence at trial that defendant was even involved

in this drug transaction or that a drug transaction was even

taking place at the time Mr. Wood was killed. The only person

with whom Mr. Wood identified that he would be meeting was Mr.

Cunningham, but the State provided no details as to whether that

meeting would involve the transfer of drugs. Additionally,

while the State’s evidence tended to show that defendant and Mr. -10- Cunningham left the scene of the crime together in defendant’s

car, that fact, by itself, has no bearing on whether defendant

possessed or attempted to possess the marijuana, the underlying

felony. While it seems that this evidence would support a

theory that defendant and Mr. Cunningham acted in concert to rob

or assault Mr. Wood, the State did not proceed on this theory at

trial. Furthermore, while it is undisputed that one of the

bricks of marijuana had defendant’s fingerprint on it, that was

the only physical piece of evidence linking defendant to the

marijuana. Given that numerous other fingerprints were found on

the marijuana but only one was from defendant, this evidence is

inadequate to establish that defendant maintained any degree of

dominion or control over the marijuana. Additionally, the State

did not introduce any evidence establishing that the marijuana

was in close proximity to defendant in the van or that it was in

a place only accessible to defendant. Finally, there was no

evidence that defendant was either using the drugs in the van or

that defendant had spent any substantial amount of time in the

van prior to the shooting.

Moreover, the State failed to present sufficient evidence

that defendant possessed or attempted to possess the marijuana

while acting in concert with Mr. Cunningham. “To act in concert -11- means to act together, in harmony or in conjunction one with

another pursuant to a common plan or purpose.” State v. Joyner,

297 N.C. 349, 356, 255 S.E.2d 390, 395 (1979). However, “[t]he

acting in concert theory is not generally applicable to

possession offenses, as it tends to become confused with other

theories of guilt.” State v. Diaz, 155 N.C. App. 307, 314, 575

S.E.2d 523, 528 (2002). However, when the theory is used, our

Court has noted that, while “a defendant need not do any

particular act constituting some part of the crime[,]” he must

be present at the scene of the crime and act together with

another who does the acts necessary to constitute the crime

pursuant to a common plan or purpose to commit the crime.” Id.

Consequently, here, the State would be required to show that

defendant was present at the scene of the crime and that Mr.

Cunningham committed some act necessary to constitute possession

or attempted possession or the marijuana. Again, since there

was no evidence that Mr. Cunningham actually possessed the

marijuana, the State would have to show he constructively

possessed the marijuana while defendant was present.

Even under an acting in concert theory, the State has

failed to produce sufficient evidence that defendant acted in

concert with Mr. Cunningham to possess or attempt to possess the -12- marijuana. Mr. Cunningham was never in the van where the

marijuana was found. The State provided no evidence of a joint

plan between Mr. Cunningham and defendant to possess the

marijuana. In fact, besides being the shooter, the State

provided no evidence as to what exactly Mr. Cunningham’s role

was in a possible drug transaction with Mr. Wood. As stated

above, while it appears that the State could have proceeded

under the theory that defendant and Mr. Cunningham acted in

concert to either rob or assault Mr. Wood, the State based the

felony murder charge solely on the underlying felony offense of

possession or attempted possession of marijuana. While a single

fingerprint of Mr. Cunningham’s was found on one of the bricks

of marijuana, it is the sole piece of evidence linking Mr.

Cunningham to the marijuana and, without more, is insufficient

to establish that he was constructively possessing the marijuana

at the time he shot and killed Mr. Wood.

Even in totality and taken in a light most favorable to the

State, the evidence was insufficient to support the underlying

offense of possession or attempted possession of a felonious

amount of marijuana based on the theory of constructive

possession, either with defendant acting by himself or acting in

concert with Mr. Cunningham. In contrast, the evidence only -13- rises to a level of suspicion and conjecture that Mr. Wood was

killed while defendant was possessing or attempting to possess

the marijuana in the van. Accordingly, since we have concluded

that the State’s evidence was insufficient to support the

commission of the underlying felony, the judgment on defendant’s

conviction for felony murder based on that underlying felony

must be vacated. See generally, State v. Ledford, 315 N.C. 599,

606, 340 S.E.2d 309, 314 (1986) (“If the evidence presented at

trial was insufficient to support a conviction of [the

underlying felony], the judgment of conviction of first-

degree felony murder based on that underlying felony cannot be

sustained.”); State v. Bates, 309 N.C. 528, 535, 308 S.E.2d 258,

263 (1983) (“Because there was insufficient evidence to support

the commission of the underlying felony, there is also

insufficient evidence to support defendant’s conviction of

felony murder.”). Since defendant’s conviction for felony

murder has been vacated, it is not necessary to address his

remaining arguments on appeal.

Conclusion

Based on the foregoing reasons, we reverse the order

denying defendant’s motion to dismiss based on insufficiency of -14- the evidence and vacate defendant’s conviction for felony

murder.

REVERSED.

Judges McGEE and ELMORE concur.

Report per Rule 30(e).