State v. Dove

• Court: Court of Appeals of North Carolina
• Decided: December 1, 2020
• Docket: 20-143
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA20-143

Filed: 1 December 2020

Wayne County, Nos. 17 CRS 55365-67, 18 CRS 2290

STATE OF NORTH CAROLINA

v.

AIJALON DERICE DOVE

Appeal by defendant from judgments entered 29 July 2019 by Judge Imelda J.

Pate in Wayne County Superior Court. Heard in the Court of Appeals 22 September

2020.

Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L. Hyde, for the State.

Marilyn G. Ozer for defendant-appellant.

ZACHARY, Judge.

Sammy Evans was visiting a friend when he was fatally wounded by gunfire.

A police investigation into Evans’s death led to the arrest of Defendant Aijalon Derice

Dove, who was convicted of first-degree felony murder, possession of a firearm by a

felon, discharging a weapon into occupied property, and felonious possession of

cocaine.

On appeal, Defendant argues that the trial court (1) plainly erred by

instructing the jury on the doctrine of acting in concert, and (2) erred by admitting STATE V. DOVE

Opinion of the Court

lay opinion testimony that usurped the role of the jury. After careful review, we

conclude that Defendant received a fair trial, free from prejudicial error.

Background

On 19 July 2019, Defendant’s case came on for jury trial in Wayne County

Superior Court, the Honorable Imelda J. Pate presiding. The State’s evidence tended

to show that on the evening of 21 November 2017, Sammy Evans was visiting the

home of a friend, Renee Thompson, and the two of them were doing laundry. The

washer and dryer were located on the enclosed back porch. While Thompson went to

fold clothes in the bedroom, Evans stepped out back to smoke some marijuana.

Shortly after going into the bedroom, Thompson heard six gunshots, fired in

quick succession, and Thompson and her other visitors took cover. When the shooting

stopped, Thompson and her daughter found Evans lying in a pool of blood on the

enclosed back porch, and Thompson called 911. The house, some property inside the

house, and Thompson’s daughter’s van were damaged by the gunfire.

Law enforcement officers and EMS responded to the call. EMTs pronounced

Evans dead at the scene. Law enforcement officers found seven shell casings along

the edge of the property, and spent projectiles inside the van and the washing

machine. Surveillance cameras captured Defendant near the scene of the crime with

his friend, Octavious, and showed the license plate number of Defendant’s car.

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Footage also showed Defendant carrying a gun.1 Later that morning, after finding

Defendant’s vehicle at the Econo Lodge Inn, law enforcement officers executed a

search warrant for Defendant’s hotel room, where they discovered a loaded gun and

some cocaine. A forensic scientist in the firearms unit of the North Carolina State

Crime Laboratory testified that his examination of the cartridge cases found at

Thompson’s house revealed that they were from 9mm Luger bullets, which were fired

from the gun found in Defendant’s hotel room.

Defendant’s evidence painted an entirely different picture. He testified that he

and Octavious left Bob’s No. 2, a local game room and convenience store, to visit

Octavious’ grandmother at Thompson’s house on North Herman Street. Octavious

drove Defendant’s mother’s car, and parked in the Piggly Wiggly parking lot. From

there, the men walked toward Thompson’s house. As they were walking, Defendant

stopped to urinate in the bushes while Octavious went on without him. When

Defendant heard gunshots, he ran back to the car. Octavious ran back to the car as

well, and they returned to Bob’s No. 2. Defendant eventually left to meet his girlfriend

at the Econo Lodge Inn. While he was at the Econo Lodge, Octavious telephoned

Defendant, and Defendant retrieved the gun from the car. However, Defendant

testified that he did not know there was a gun in the car prior to the call from

Octavious, and that he did not know Evans.

1 On appeal, Defendant challenges the admissibility of this evidence.

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Octavious’ testimony conflicted with Defendant’s.2 Octavious testified that

Evans owed money to Defendant’s brother, and that he and Defendant went to get

the money from Evans. Octavious drove Defendant’s car to the Piggly Wiggly parking

lot, and the two men walked to Thompson’s house. Octavious said that Defendant did

not stop to urinate in the bushes. Instead, because Octavious was not allowed in

Thompson’s house, he waited at the neighbor’s while Defendant went to collect the

money from Evans. Shortly after Defendant left Thompson’s house, Octavious heard

gunfire and saw Defendant run past him. Octavious followed Defendant to the car,

and Octavious then drove them back to Bob’s No. 2. Octavious further testified that

he did not call Defendant that evening; that neither he nor Defendant had a gun; and

that Octavious did not check on his aunt and grandmother afterward.

The jury found Defendant guilty of first-degree murder under the theory of

felony murder, possession of a firearm by a felon, discharging a weapon into occupied

property, and felonious possession of cocaine. For the offense of first-degree felony

murder, the trial court sentenced Defendant to life imprisonment without parole in

the North Carolina Division of Adult Correction. The trial court arrested judgment

on the charge of discharging a firearm into occupied property, as the underlying

felony supporting the conviction for felony murder. For the offenses of possession of a

firearm by a felon and felony possession of cocaine, the trial court sentenced

2 At the time of Defendant’s trial, Octavious was also charged with the first-degree murder of

Evans.

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Defendant to 19-32 months’ imprisonment set to begin at the expiration of his

sentence for first-degree murder.

Defendant gave notice of appeal in open court.

Discussion

On appeal, Defendant argues that the trial court (1) “committed plain error by

instructing the jury [that] [D]efendant could be found guilty of the murder and

shooting into an occupied dwelling based on the theory of acting in concert”; and (2)

“erred by allowing a witness to testify to her opinion on an issue [of] which she had

no personal understanding and that was properly in the province of the jury.” We

address each argument in turn.

I. Jury Instructions

Defendant first contends that the trial court plainly erred by instructing the

jury on the theory of acting in concert, in that the evidence offered at trial did not

support this instruction.

“In criminal cases, an issue that was not preserved by objection noted at trial

and that is not deemed preserved . . . nevertheless may be made the basis of an issue

presented on appeal when the judicial action questioned is specifically and distinctly

contended to amount to plain error.” N.C.R. App. P. 10(a)(4). Thus, because

“[D]efendant failed to object to the jury instruction at trial, he must show plain error

by establishing that the trial court committed error, and that absent that error, the

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jury probably would have reached a different result.” State v. Poag, 159 N.C. App.

312, 321-22, 583 S.E.2d 661, 668, disc. review denied, 357 N.C. 661, 590 S.E.2d 857

(2003).

It is axiomatic that in order to constitute plain error justifying a new trial, the

error must “be so fundamental that [the] defendant, in light of the evidence, the issues

and the instructional error, could not have received a fair trial.” State v. Abraham,

338 N.C. 315, 345, 451 S.E.2d 131, 147 (1994). “[A] defendant must establish

prejudice—that, after examination of the entire record, the error had a probable

impact on the jury’s finding that the defendant was guilty.” State v. Lawrence, 365

N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations and internal quotation marks

omitted). “It is generally prejudicial error for the trial court to instruct the jury on a

theory of [the] defendant’s guilt that is not supported by the evidence.” Poag, 159 N.C.

App. at 322, 583 S.E.2d at 668.

Under the doctrine of acting in concert, “[a] person may be found guilty of

committing a crime if he is at the scene acting together with another person with a

common plan to commit the crime, although the other person does all the acts

necessary to commit the crime.” State v. Jefferies, 333 N.C. 501, 512, 428 S.E.2d 150,

156 (1993); accord State v. Joyner, 297 N.C. 349, 356, 255 S.E.2d 390, 395 (1979) (“To

act in concert means to act together, in harmony or in conjunction one with another

pursuant to a common plan or purpose.”). As our Supreme Court has explained, “[i]t

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is not . . . necessary for a defendant to do any particular act constituting at least part

of a crime in order to be convicted of that crime under the concerted action

principle[.]” Joyner, 297 N.C. at 357, 255 S.E.2d at 395.

In the instant case, there was sufficient evidence to support the State’s theory

that Defendant was guilty by acting in concert with Octavious, and to justify

instructing the jury on the doctrine of acting in concert. The evidence at trial tended

to show that Defendant, Defendant’s brother, and Octavious met up at Bob’s No. 2, a

local game room and convenience store. Defendant and Octavious were identified

together there in the surveillance video footage, and Defendant was pictured holding

a gun. After Octavious and Defendant’s brother discussed the fact that Evans owed

money to Defendant’s brother, Defendant’s brother instructed Octavious and

Defendant to collect the money. Evans was visiting the home of Octavious’ aunt,

Renee Thompson, on North Herman Street, and Evans’s Cadillac was parked in the

driveway. Rather than drive all the way to Thompson’s home, Octavious parked

Defendant’s car in the parking lot of the Piggly Wiggly near her home, and the men

walked from there. Defendant and Octavious were identified together in surveillance

video footage from the Piggly Wiggly and in surveillance video footage from North

Herman Street. When they arrived, Defendant entered Thompson’s house alone,

because Octavious was not allowed in the house.

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After gunshots were fired, the men ran to the car, and Octavious drove

Defendant to Bob’s No. 2. Defendant and Octavious were identified together, fleeing

the scene, on two surveillance videos. The gun that fired the bullet that killed

Evans—which contained live rounds at the time it was discovered by police—was

found in Defendant’s hotel room hours after the shooting.

Taken together, and in light of the “heavy burden of plain error analysis” that

a defendant is required to shoulder, State v. Cummings, 352 N.C. 600, 636, 536 S.E.2d

36, 61 (2000), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001), we conclude that

the evidence sufficiently supports the conclusion that Defendant acted in concert with

Octavious in committing the charged offenses. Thus, the trial court did not err, much

less plainly err, by instructing the jury on the doctrine of acting in concert. This

argument lacks merit.

II. Evidentiary Rule 602

Defendant next argues that the trial court erred in allowing Octavious’s aunt,

Renee Thompson, to testify that she believed that Defendant was holding a gun in

his hand in video footage from a surveillance camera at Bob’s No. 2 and from screen

shots produced from that footage.

“[W]hether a lay witness may testify as to an opinion is reviewed for abuse of

discretion.” State v. Washington, 141 N.C. App. 354, 362, 540 S.E.2d 388, 395 (2000),

disc. review denied, 353 N.C. 396, 547 S.E.2d 427 (2001). “A trial court abuses its

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discretion if the ruling is manifestly unsupported by reason or is so arbitrary that it

could not have been the result of a reasoned decision.” State v. Weldon, 258 N.C. App.

150, 154, 811 S.E.2d 683, 687 (2018) (citation and internal quotation marks omitted).

However, even if the trial court erred by allowing such testimony, the defendant must

show that the error was prejudicial. See N.C. Gen. Stat. § 15A-1443(a); State v. Buie,

194 N.C. App. 725, 733, 671 S.E.2d 351, 356, disc. review denied, 363 N.C. 375, 679

S.E.2d 135 (2009).

It is well established that “the jury is charged with determining what

inferences and conclusions are warranted by the evidence.” Buie, 194 N.C. App. at

730, 671 S.E.2d at 354. “Ordinarily, opinion evidence of a non-expert witness is

inadmissible because it tends to invade the province of the jury.” State v. Fulton, 299

N.C. 491, 494, 263 S.E.2d 608, 610 (1980). However, Rule 701 permits a lay opinion

witness to offer “opinions or inferences which are (a) rationally based on the

perception of the witness and (b) helpful to a clear understanding of his testimony or

the determination of a fact in issue.” N.C. Gen. Stat. § 8C-1, Rule 701.

Relatedly, Rule 602 provides that “[a] witness may not testify to a matter

unless evidence is introduced sufficient to support a finding that he has personal

knowledge of the matter. Evidence to prove personal knowledge may, but need not,

consist of the testimony of the witness himself.” Id. § 8C-1, Rule 602. “The

Commentary to Rule 602 further provides that the foundation requirements may, of

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course, be furnished by the testimony of the witness h[er]self; hence personal

knowledge is not an absolute but may consist of what the witness thinks [s]he knows

from personal perception.” State v. Harshaw, 138 N.C. App. 657, 661, 532 S.E.2d 224,

227 (internal quotation marks omitted), disc. review denied, 352 N.C. 594, 544 S.E.2d

793 (2000).

Defendant contends that Thompson’s “opinion of what can be seen in a video

is inadmissible as she was in no better position to know what the video showed than

the jurors,” and that “[t]here is a reasonable possibility that if the trial court had

granted Defendant’s motion to strike [Thompson’s] opinion testimony a different

result would have been reached at trial.”3

It is undisputed that Thompson’s testimony that Defendant was holding a gun

at Bob’s No. 2 on the evening of Evans’s death was not based on Thompson’s firsthand

knowledge or perception, but rather solely on her viewing of surveillance video

footage and screen shots extracted from the video footage. Thompson was not at the

scene, and instead relied upon the same footage shown to the jury. Indeed, Thompson

was clearly in no better position to correctly determine what Defendant was holding

3 The State notes that “Defendant did not specify the basis of his objection at trial,” without

further analysis or argument. While a party seeking to preserve an issue for appellate review “must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make,” N.C.R. App. P. 10(a)(1), stating the specific grounds for the objection is necessary only “if the specific grounds were not apparent from the context.” Id. Having reviewed Thompson’s testimony and the prosecutor’s line of questioning, we are satisfied that the objection to Thompson’s testimony was “apparent from the context.” See State v. Phillips, ___ N.C. App. ___, ___, 836 S.E.2d 866, 873 (2019).

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in his hand than the jury. See State v. Belk, 201 N.C. App. 412, 418, 689 S.E.2d 439,

443 (2009), disc. review denied, 364 N.C. 129, 695 S.E.2d 761 (2010). Thus, the

admission of Thompson’s testimony was error.

Nonetheless, Defendant must demonstrate that he was prejudiced by this error

by showing that “there is a reasonable possibility that, had the error in question not

been committed, a different result would have been reached at the trial[.]” N.C. Gen.

Stat. § 15A-1443(a). After careful review, we conclude that Defendant has not

satisfied this burden.

In the instant case, there was substantial other evidence on which the jury

could base a finding of Defendant’s guilt. Octavious testified that Evans owed money

to Defendant’s brother, and that Defendant’s brother instructed them to collect on

the debt just before they left Bob’s No. 2. The State effectively traced Defendant’s trek

with Octavious from Bob’s No. 2 to Thompson’s home, his arrival at the scene just

before the shooting, and his quick return to Bob’s No. 2. The jurors also viewed the

surveillance videos and screen shots in which Defendant and Octavious were

identified together at Bob’s No. 2 and along roads leading to Thompson’s home, as

well as the expended cartridge casings that officers found bordering the edge of

Thompson’s property. A forensics expert testified that these casings were fired from

the gun discovered in Defendant’s hotel room. Moreover, Thompson’s challenged

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testimony was minimal and brief. The prosecutor did not linger on this issue, only

asking Thompson once what Defendant was holding.

In sum, even if the jurors credited Thompson’s testimony on this point, we are

not convinced that there is a “reasonable possibility that, had the error in question

not been committed, a different result would have been reached at the trial[.]” N.C.

Gen. Stat. § 15A-1443(a). Accordingly, this final argument must fail.

Conclusion

Defendant failed to show that the trial court plainly erred by instructing the

jury on the doctrine of acting in concert, and failed to demonstrate that he was

prejudiced by the trial court’s admission of Thompson’s testimony.

NO ERROR.

Chief Judge McGEE and Judge ARROWOOD concur.

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