State v. Fowlkes

• Court: Court of Appeals of North Carolina
• Decided: May 6, 2014
• Docket: 13-1319
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1319 NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

STATE OF NORTH CAROLINA

v. Wake County Nos. 11 CRS 223948, 223961-63, 224370-71 SHERMAN DEMETRIUS FOWLKES

Appeal by Defendant from judgments entered 8 February 2013

by Judge Paul C. Ridgeway in Superior Court, Wake County. Heard

in the Court of Appeals 17 March 2014.

Attorney General Roy Cooper, by Special Deputy Attorney General Brenda Menard, for the State.

Parish & Cooke, by James R. Parish, for Defendant.

McGEE, Judge.

Sherman Demetrius Fowlkes (“Defendant”) was indicted on 13

December 2011 for two counts of common law robbery, two counts

of robbery with a dangerous weapon, two counts of conspiracy to

commit robbery with a dangerous weapon, two counts of felony

breaking or entering a motor vehicle, two counts of misdemeanor

larceny, and larceny of a firearm. As to the conspiracy -2- charges, the indictment alleged that Defendant conspired with

Winston Washington (“Washington”), Blake Banks (“Banks”), Jerome

Jeffries (“Jeffries”), and Ambonisye Kelley (“Kelley”).

Jeffries testified at trial that, on the night of 12

October 2011, Defendant called Jeffries to ask him to break into

some vehicles with Defendant. Jeffries met with Defendant,

Washington, Banks, and Kelley at Defendant’s residence at

approximately 10:30 or 11:00 p.m. and they left to break into

cars. Jeffries was in a silver car the whole night. Defendant

drove a red car at times. Jeffries testified that he broke into

a vehicle and stole items that were later identified as

belonging to Michael Sink. While in the silver car with Kelley

and Banks, Jeffries received a phone call from Defendant, asking

him to pick him up after Defendant had robbed someone.

Ethan Smith (“Smith”) testified that he saw Defendant and

four or five other young African American males approaching him

in a parking lot at approximately midnight on the evening of 12

October 2011. Smith testified that he was hit from behind and

that his belongings were stolen. Kenneth Frederick

(“Frederick”) testified that five or six males from two vehicles

robbed him at gunpoint in the parking lot of his apartment

complex sometime between 1:30 and 2:00 a.m. on 13 October 2011.

Frederick testified that the gun used in the robbery was a -3- silver handgun. He also testified that one of the vehicles was

white.

Jeffries also testified that, at some point during the

evening, the occupants of the two vehicles met up in a parking

lot near N.C. State University. Shortly thereafter, they robbed

John Noble (“Noble”), who was walking back to his car. Noble

testified that he saw a group of five or six young males in a

parking lot. Noble was struck in the head and fell to the

ground. His belongings, including an iPhone and wallet, were

stolen.

The group also robbed Alexander Stark (“Stark”), who was

riding his bicycle. Stark testified that a red car pulled up

alongside him, and someone jumped out and ran toward him. The

red car and a silver car drove in front of him, and several

people exited the vehicles. Stark was forced to the ground, and

his wallet and backpack, which held a laptop, mouse, and cords,

were stolen.

Between 3:00 and 3:30 a.m., Claude McMahan (“McMahan”) was

walking to work at a hotel on Hillsborough Street. He was

knocked out, and his bow tie, nametag, and money were stolen

from him. Jeffries testified that he was present only for the

robberies of Noble and Stark. He testified that he did not -4- participate in the robbery that occurred after the group

separated.

The group reconvened at Defendant’s residence. Jeffries

left Defendant’s residence at approximately 8:00 a.m. with two

others. Defendant left in the silver car with the rest of the

group. Police officers had tracked Noble’s phone to Defendant’s

residence, and were watching the residence when the group left.

Police officers stopped the cars, and Defendant was brought back

to his residence. Numerous items identified as having been

stolen were located at Defendant’s residence. A jury found

Defendant guilty of all charges. Defendant appeals.

I. Standard of Review

Each of Defendant’s arguments on appeal arises from the

trial court’s denial of Defendant’s motion to dismiss. Thus,

the same standard of review applies to each issue discussed in

this opinion. “A trial court’s denial of a defendant’s motion

to dismiss due to insufficiency of the evidence is proper if the

State has presented ‘substantial evidence’ of each element of

the offense charged.” State v. Tabron, 147 N.C. App. 303, 305,

556 S.E.2d 584, 585 (2001).

“Substantial evidence is relevant evidence that a

reasonable mind might accept as adequate to support a

conclusion. Substantial evidence may consist of direct or -5- circumstantial evidence, or both.” Id. at 306, 556 S.E.2d at

585 (internal citation omitted). “When ruling on a motion to

dismiss, a court must consider the evidence in the light most

favorable to the State, and the State is entitled to all

reasonable inferences that can be drawn from the evidence.” Id.

at 306, 556 S.E.2d at 586.

II. Separate Conspiracies to Commit Robbery with a Dangerous Weapon

Defendant first argues that the “trial court should arrest

judgment” on one count of conspiracy to commit robbery with a

dangerous weapon where “the evidence did not support two counts

of conspiracy to commit robbery with a dangerous weapon[.]” To

the extent that this constitutes an argument that the trial

court erred in denying Defendant’s motion to dismiss, we

disagree.

“In North Carolina, multiple overt acts arising from a

single agreement do not permit prosecutions for multiple

conspiracies.” Tabron, 147 N.C. App. at 306, 556 S.E.2d at 586

(internal quotation marks omitted). When “the State elects to

charge separate conspiracies, it must prove not only the

existence of at least two agreements but also that they were

separate.” Id. “[T]he essential question is the nature of the

agreement or agreements, but factors such as time intervals, -6- participants, objectives, and number of meetings all must be

considered.” Id.

In State v. Roberts, 176 N.C. App. 159, 167, 625 S.E.2d

846, 852 (2006), this Court considered evidence showing that a

conspiracy was formed on the evening of 15 December 2002 when

the defendant agreed with two other individuals to rob someone.

This Court observed that there “was no evidence that the

agreement formed on 15 December 2002 consisted of more than that

of robbing someone on that night.” Id. “The mere fact that the

defendant was involved in a similar crime the next night does

not indicate the two crimes were committed as part of the

agreement made on 15 December 2002.” Id. This Court held that,

“[v]iewing the evidence in the light most favorable to the

State, evidence was presented allowing the jury to find that

[the] defendant was involved in two separate conspiracies.” Id.

In the present case, the State presented testimony from

Jeffries. At approximately 10:30 or 11:00 p.m. on 12 October

2011, Jeffries met with Defendant and four other individuals,

including Banks, Kelley, and Washington. Jeffries testified

that Defendant called him to arrange to break into cars that

night. Defendant and the four other individuals came to pick up

Jeffries from his grandmother’s house and returned to

Defendant’s residence before leaving to break into cars. -7- Jeffries testified that, when they left Defendant’s

residence to break into cars, the group split up and travelled

in two different vehicles, a red car and a silver car. Jeffries

got a phone call from Defendant during which Defendant told

Jeffries that Defendant “was fixing to hit somebody.” When

Jeffries received that phone call, he was in the silver car with

Kelley and Banks. Jeffries, Kelley, and Banks drove to another

neighborhood to wait for Defendant.

After Defendant joined the occupants of the silver car,

they went to “go hit some more cars[.]” They stopped in a

parking lot near the campus of N.C. State University and met the

occupants of the red car. The occupants of both cars talked as

a group. Jeffries testified that he asked for money from a man

who walked by; the man said no; Jeffries asked again and handed

his gun to Defendant. Defendant ran up to the man and robbed

him. Approximately ten or fifteen minutes later, on the campus

of N.C. State University, Jeffries and Banks saw a third

individual chasing a man on a bicycle. Jeffries and Blake

grabbed a book bag from the man on the bicycle and ran back to

the silver car.

After this robbery, Jeffries testified that the red car and

the silver car became separated. Jeffries testified that he and

the occupants of the silver car participated in no more -8- robberies after this point. An hour and twenty minutes later,

all the occupants of the two cars met back at Defendant’s

residence. Jeffries testified that the group had stolen a

“couple GPSs, iPods, cell phones, laptops, [and] the gun.” They

talked about selling the items at a flea market.

As in Roberts, there was no evidence that the agreement

formed earlier in the evening at Defendant’s residence consisted

of an agreement to commit anything other than the next single

robbery. The evidence shows ample opportunity for the occupants

of the two cars to form separate agreements to commit robberies

and for the group as a whole to form a second agreement to

commit additional robberies in a parking lot near N.C. State

University.

The mere fact that other robberies ensued does not indicate

that all the robberies were committed as part of the first

agreement. In the present case, the evidence of the group

meeting at Defendant’s residence, combined with the evidence of

the group talking in a parking lot before robbing an individual

on foot, indicate more than one conspiracy. Furthermore, the

State presented evidence that the group split into two vehicles

and were separated for over an hour, during which subsequent

agreements could have been reached among the occupants of the

red car. Considering this series of events and the variety of -9- locations and participants, a rational juror could readily find

that the evidence established two separate conspiracies, rather

than one single conspiracy. State v. Tirado, 358 N.C. 551, 578,

599 S.E.2d 515, 534 (2004). Defendant has not shown error on

this basis.

III. Sufficiency of the Evidence of Robbery with a Dangerous Weapon and Conspiracy to Commit Robbery with a Dangerous Weapon of Frederick

Defendant next argues the trial court erred in denying

Defendant’s motion to dismiss the charges of robbery with a

dangerous weapon and conspiracy to commit robbery with a

dangerous weapon of Frederick. Defendant contends there was

insufficient evidence that Defendant or his co-defendants were

the perpetrators of the offenses.

Frederick testified that he was coming home from work at

about 1:30 or 2:00 a.m. on 13 October 2011. He parked his

vehicle in the parking lot of his apartment complex and noticed

that two cars in front of him appeared to be looking for a

parking spot. As Frederick walked toward his apartment, “five

or six guys jumped out[.]” He testified that one individual

held a gun to the back of Frederick’s head and demanded money.

They took Frederick’s wallet, phone, keys, and black hoodie.

When Frederick told them he had no money on him, they hit

Frederick and ran away. -10- Defendant contends that Frederick’s testimony regarding the

color of the vehicle of his assailants “tended to exculpate”

Defendant “and therefore [] [D]efendant is entitled to a

dismissal of this charge[.]” However, as stated above, in

ruling on a motion to dismiss for insufficiency of the evidence,

the evidence is viewed in the light most favorable to the State.

Tabron, 147 N.C. App. at 306, 556 S.E.2d at 586. When

considered in conjunction with the testimony of Jeffries

regarding how the robberies were planned and executed, the

foregoing evidence constitutes sufficient evidence to submit the

charges to the jury. The trial court did not err in denying

Defendant’s motion to dismiss on this basis.

IV. Sufficiency of the Evidence of Common Law Robbery of McMahan

Defendant’s motion to dismiss the charge of common law robbery

of McMahan. Defendant concedes that the evidence “clearly

established Mr. McMahan was the victim of a common law robbery,”

but argues there was insufficient evidence that Defendant was a

perpetrator of this offense.

Defendant contends that “the doctrine of recent possession

creates an inference [Jeffries] and [] Kelley were the

thieves[,]” but raised no more than “a conjecture of

speculation” that Defendant was one of the offenders. However, -11- the doctrine of recent possession requires only that a

defendant’s possession “must be to the exclusion of all persons

not party to the crime.” State v. Maines, 301 N.C. 669, 675,

273 S.E.2d 289, 294 (1981). The possession “‘required to

support an inference or presumption of guilt need not be a sole

possession but may be joint.’” State v. Osborne, 149 N.C. App.

235, 240-41, 562 S.E.2d 528, 533, aff’d per curiam, 356 N.C.

424, 571 S.E.2d 584 (2002) (quoting Maines, 301 N.C. at 675, 273

S.E.2d at 294).

For the inference to arise where more than one person has access to the property in question, the evidence must show the person accused of the theft had complete dominion, which might be shared with others, over the property or other evidence which sufficiently connects the accused person to the crime or a joint possession of co- conspirators or persons acting in concert in which case the possession of one criminal accomplice would be the possession of all.

Maines, 301 N.C. at 675, 273 S.E.2d at 294.

McMahan testified that he was on Hillsborough Street,

walking to work at about 3:00 a.m. on the morning of 13 October

2011. As McMahan noticed a person across the street, another

person approached him from behind and asked where McMahan was

going. McMahan was then “knocked unconscious[.]” Twenty or

thirty minutes later, he revived and walked to work. A co-

worker commented that it looked like McMahan had been beaten up -12- and called the police for McMahan. McMahan reported to the

police that his bow tie, cellular phone, and about $55 in cash

had been stolen from him.

A police officer testified that McMahan’s nametag and bow

tie were found on 13 October 2011 in the silver vehicle.

Jeffries testified that he was not present for the robbery of

McMahan on Hillsborough Street. Jeffries did, however, testify

that all the individuals returned to Defendant’s residence at

about 3:00 a.m. on 13 October 2011 and carried all of the stolen

items into Defendant’s room. It is reasonable to infer that the

occupants of the red vehicle committed the robbery of McMahan,

and that the items were later transferred to the silver car.

Considering the evidence in the light most favorable to the

State, the evidence showed a joint possession of McMahan’s

property by the individuals who acted together to rob McMahan.

The trial court did not err in denying Defendant’s motion to

dismiss these charges.

V. Sufficiency of the Evidence of Felonious Breaking and Entering a Motor Vehicle, Misdemeanor Larceny, and Larceny of a Firearm of Sink

Defendant’s motion to dismiss the charges of felonious breaking

and entering a motor vehicle, misdemeanor larceny, and larceny

of a firearm of Sink. Defendant again contends that the -13- doctrine of recent possession creates an inference Jeffries and

Kelley broke in and stole the property.

However, as noted in the previous section, the doctrine of

recent possession requires only that a defendant’s possession

“must be to the exclusion of all persons not party to the

crime.” Maines, 301 N.C. at 675, 273 S.E.2d at 294.

Furthermore, the State presented sufficient evidence that

Defendant was a perpetrator of these offenses under the theory

of aiding and abetting. See State v. Gaines, 345 N.C. 647, 676,

483 S.E.2d 396, 413 (1997).

As previously discussed, Jeffries testified that Defendant

called him earlier on the night of 12 October 2011 to arrange

getting together and breaking into cars. Jeffries testified

that he subsequently broke into a vehicle and stole items,

including a firearm. Jeffries identified State’s Exhibit 3 as a

“Springfield,” which he stole from the vehicle. Defendant used

the firearm in a subsequent robbery close to the campus of N.C.

State University, and allowed Jeffries to keep the stolen items

in Defendant’s residence. Sink testified that, on 13 October

2011, he noticed that his laptop, leather briefcase, firearm,

and knife had been stolen from his vehicle. Sink identified

State’s Exhibit 3 as his stolen firearm. -14- Considering the evidence in the light most favorable to the

State, the State presented sufficient evidence that Defendant

was a perpetrator of these offenses under a theory of aiding and

abetting. The trial court did not err in denying Defendant’s

motion to dismiss on this basis.

VI. Sufficiency of the Evidence of Felonious Breaking and Entering a Motor Vehicle and Misdemeanor Larceny of Keeling

Defendant’s motion to dismiss the charges of felonious breaking

and entering and misdemeanor larceny of Keeling. Defendant

contends there “could be no application of the doctrine of

possession of recent stolen property” because there was no

evidence Defendant knew Keeling’s iPod Touch “had been placed at

[Defendant’s] residence by another.”

A police officer testified that all of the stolen property

was recovered from either Defendant’s bedroom or from one of the

two vehicles used by Defendant and his co-conspirators. The

evidence discussed in the foregoing sections of this opinion

indicates Defendant and his co-conspirators had control over and

access to all three of these locations. As previously

discussed, the possession “required to support an inference or

presumption of guilt need not be a sole possession but may be

joint.” Osborne, 149 N.C. App. at 240-41, 562 S.E.2d at 533.

Considering the evidence in the light most favorable to the -15- State, the evidence showed a joint possession of Keeling’s

property by the individuals who acted together to rob Keeling.

No error.

Chief Judge MARTIN and Judge CALABRIA concur.

Report per Rule 30(e).