State v. Glover

• Court: Court of Appeals of North Carolina
• Decided: May 6, 2014
• Docket: 13-1079
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1079 NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

STATE OF NORTH CAROLINA

v. Forsyth County No. 12 CRS 60503 DAMEON JOSE GLOVER

Appeal by defendant from judgment entered 9 April 2013 by

Judge L. Todd Burke in Forsyth County Superior Court. Heard in

the Court of Appeals on 31 March 2014.

Roy Cooper, Attorney General, by Janelle E. Varley, Assistant Attorney General for the State.

J. Edward Yeager, Jr. for defendant-appellant.

DAVIS, Judge.

Dameon Jose Glover (“Defendant”) appeals from a judgment

entered upon a jury verdict finding him guilty of assault

inflicting serious bodily injury. On appeal, he argues that (1)

the trial court abused its discretion by denying his pre-trial

discovery motion; and (2) the trial court erred in finding that

his federal conviction of bank robbery was substantially similar -2- to the North Carolina crime of common law robbery. After

careful review, we affirm.

Factual Background

The State presented evidence at trial tending to establish

the following facts: On 5 October 2013, at approximately 1:36

a.m., Defendant entered the West End Opera House, a bar in

Winston-Salem, North Carolina, with his friend, Torian Williams

(“Mr. Williams”) and sat next to a billiards table. Another

patron, Derek Pasko (“Mr. Pasko”), walked over to Defendant, and

they engaged in conversation. The conversation soon escalated

into an argument. The bar manager asked: “[I]s everything all

right?” Mr. Williams responded: “[I]t’s cool.”

Mr. Pasko then exited through the rear door of the bar and

encountered a friend, Michael Thompson (“Mr. Thompson”), in the

parking lot behind the bar. Defendant and Mr. Williams followed

Mr. Pasko outside. As Mr. Pasko and Mr. Williams exchanged

words, Defendant approached Mr. Pasko and landed a punch to Mr.

Pasko’s face. Mr. Pasko collapsed to the ground. Mr. Thompson

then ran into the bar to get help and an ambulance was called.

Defendant followed Mr. Thompson back to the bar but did not

enter. Instead, Mr. Williams picked up Defendant in a car and

drove away from the scene. -3- On 16 October 2012, a warrant was issued, and Defendant was

arrested at his residence by Officer Aaron Jessup (“Officer

Jessup”). Officer Jessup transported Defendant to the law

enforcement detention center located at the Forsyth County Jail.

Once at the jail, Defendant was issued a Miranda warning, which

he acknowledged receiving. Officer Jessup testified at trial

that Defendant stated that he had been approached by a “white

male . . . [who] was aggressive and had words with his friend

[Mr. Williams and] at one point . . . slapped his friend [Mr.

Williams] on the buttocks inside the business where they were

playing pool . . . they had words, and they went outside the

business, and that is where [Defendant] said the altercation

began.” Officer Jessup also testified that Defendant stated

“that he struck the white male in self-defense.”

The West End Opera House is equipped with a 15 camera video

surveillance system that records 24 hours a day without audio.

Two police officers reviewed the videos recorded by the

surveillance system on the night of the incident along with the

owner and manager of the bar. The bar owner provided the police

officers with two recorded compact discs that included all the

footage of Defendant on 5 October 2012 from the time he entered

the bar at approximately 1:36 a.m. until the time he drove away -4- at approximately 2:30 a.m. The State then provided the two

videos to Defendant on 12 December 2012.

Defendant requested additional discovery on 15 January

2013, specifically asking for “the video surveillance from the

surveillance camera . . . focused on the front entrance of the

West End Opera House.” The State responded that Officer

Griffith – the police department’s case manager – had “no

knowledge of any video being in the possession of the Winston-

Salem Police Department that would have come from any

surveillance camera located at the front of the West End Opera

House.”

On 26 November 2012, Defendant was indicted by the Forsyth

County grand jury on the charge of assaulting Mr. Pasko and

inflicting “serious bodily injury” causing a skull fracture, eye

socket fracture, and multiple facial fractures.

On 3 April 2013, Defendant filed a pre-trial motion asking

for “access to the remaining video surveillance not previously

provided by the State,” and “[i]n the event that said video

surveillance [has] been destroyed or is otherwise unavailable,

then an Order should be entered by the Court preventing the

State be barred [sic] from playing its video during a trial of

this matter.” Defense counsel noted that there had been a -5- confrontation outside the bar and “words were exchanged just

outside the front door of the Opera House.” For this reason,

defense counsel explained she sought access to any video

surveillance recorded from a camera located above the front

door. The State responded that any other existing surveillance

videos had never been in the State’s possession and that the two

videos that the State did possess had been provided to

Defendant’s counsel and were going to be introduced as evidence.

The trial court ruled that the State would be permitted to

introduce the two videos and denied Defendant’s motion.

A jury trial was held beginning on 8 April 2013. On 9 April

2013, Defendant was found guilty of assault inflicting serious

bodily injury and was sentenced to 25-39 months. Defendant gave

notice of appeal in open court.

Analysis

I. Denial of Pre-Trial Discovery Motion

Defendant argues the trial court abused its discretion in

denying Defendant’s motion seeking access to the remaining video

surveillance not previously provided by the State, alleging the

State was allowed to “introduce incomplete evidence in the form

of partial video recordings which did not record the entire

encounter between Defendant and Mr. Pasko.” We disagree. -6- Discovery in criminal superior court cases is governed by

Chapter 15A, Article 48 of the North Carolina General Statutes.

Section 15A-903 specifically governs disclosure of evidence by

the State and provides in pertinent part:

(a) Upon motion of the defendant, the court must order:

(1) The State to make available to the defendant the complete files of all law enforcement agencies, investigatory agencies, and prosecutors’ offices involved in the investigation of the crimes committed or the prosecution of the defendant.

a. The term “file” includes the defendant’s statements, the codefendants’ statements, witness statements, investigating officers’ notes, results of tests and examinations, or any other matter or evidence obtained during the investigation of the offenses alleged to have been committed by the defendant. . . .

. . . .

d. The defendant shall have the right to inspect and copy or photograph any materials contained therein and, under appropriate safeguards, to inspect, examine, and test any physical evidence or sample contained therein.

N.C. Gen. Stat. § 15A-903(a)(1)(a),(d) (2013).

“If a trial court determines that the State has violated

statutory discovery provisions or a discovery order, it may

impose a wide array of sanctions including dismissal of the -7- charge with or without prejudice.” State v. Dorman, ___ N.C.

App. ___, ___, 737 S.E.2d 452, 470 (citing N.C. Gen. Stat. §

15A-910(a)(3b)), appeal dismissed and disc. review denied, ___

N.C. ___, 743 S.E.2d 205 (2013). “On appeal, we review the

trial court’s decision to impose discovery sanctions for an

abuse of discretion.” Id. “The trial court may be reversed for

an abuse of discretion in [addressing alleged discovery

violations] only upon a showing that its ruling was so arbitrary

that it could not have been the result of a reasoned decision.”

State v. Carson, 320 N.C. 328, 336, 357 S.E.2d 662, 667 (1987)

(citation omitted).

Here, Defendant sought an order from the trial court

compelling the State to give him access to video surveillance

from all of the video cameras at the bar, particularly the video

from the camera at the front door. However, the State only

collected video surveillance from two of the fifteen cameras and

did not collect the video from the front door camera. As the

State was never in possession of the video surveillance

requested by Defendant, we hold that the trial court did not

abuse its discretion in denying Defendant’s discovery motion.

See State v. Morris, 156 N.C. App. 335, 341, 576 S.E.2d 391,

395, (stating that, under prior version of N.C. Gen. Stat. § -8- 15A-903, defendant was not entitled to discovery of requested

materials because State never possessed or controlled them or

intended to use them as evidence against defendant) cert.

denied, 357 N.C. 510, 588 S.E.2d 379 (2003); cf. State v. Lynn,

157 N.C. App. 217, 221-22, 578 S.E.2d 628, 632 (2003) (holding

in context of Brady analysis that “[t]he State . . . is under a

duty to disclose only those matters in its possession and is not

required to conduct an independent investigation to locate

evidence favorable to a defendant” (citation and quotation marks

omitted)).

II. Similarity Between Defendant’s Prior Federal Conviction and His North Carolina Common Law Robbery Conviction

Defendant also argues the trial court erred in calculating

his prior record level because it erroneously concluded that his

federal conviction for bank robbery was substantially similar to

North Carolina’s offense of common law robbery. Defendant

contends the State provided no evidence as to the nature of the

bank robbery and thus did not show that his actions on that

prior occasion were substantially similar to the acts that

constitute common law robbery in North Carolina. Defendant’s

arguments are misplaced.

“The prior record level of a felony offender is determined

by calculating the sum of the points assigned to each of the -9- offender’s prior convictions . . . .” N.C. Gen. Stat. § 15A-

1340.14(a) (2013).

If the State proves by the preponderance of the evidence that an offense classified as either a misdemeanor or a felony in the other jurisdiction is substantially similar to an offense in North Carolina that is classified as a Class I felony or higher, the conviction is treated as that class of felony for assigning prior record level points.

N.C. Gen. Stat. § 15A-1340.14(e) (2013).

“[T]he question of whether a conviction under an out-of-

state statute is substantially similar to an offense under North

Carolina statutes is a question of law requiring de novo review

on appeal.” State v. Fortney, 201 N.C. App. 662, 669, 687

S.E.2d 518, 524 (2010) (citation and internal quotation marks

omitted). In determining “whether the out-of-state conviction

is substantially similar to a North Carolina offense,” the trial

court must compare “the elements of the out-of-state offense to

those of the North Carolina offense.” Id. at 671, 687 S.E.2d at

525 (emphasis added and citation omitted). Because the focus of

the “substantially similar” test is on the elements of the

offenses, and not the facts of the specific crimes, Defendant’s

contention that the State failed to provide evidence of the -10- specific factual nature of the prior bank robbery is without

merit.

Turning to the elements of each offense, we conclude the

trial court did not err in concluding the offenses are

substantially similar. The elements of common law robbery are

“the felonious, non-consensual taking of money or personal

property from the person or presence of another by means of

violence or fear.” State v. Smith, 305 N.C. 691, 700, 292

S.E.2d 264, 270, cert. denied, 459 U.S. 1056, 74 L.Ed.2d 622

(1982). The “violence or fear” necessary to accomplish the

taking for purpose of common law robbery has been repeatedly

held to include intimidation. See State v. Sipes, 233 N.C. 633,

635, 65 S.E.2d 127, 128 (1951) (defining common law robbery as

“the felonious taking of personal property from the person of

another, or in his presence, without his consent, or against his

will, by violence, intimidation or putting in fear” (emphasis

added)); cf. State v. McDonald, 130 N.C. App. 263, 267, 502

S.E.2d 409, 412 (1998) (holding “fear or intimidation is a

material fact in issue regarding the offense of armed robbery”

(emphasis added)). Here, Defendant does not challenge the

State’s assertion that he was convicted of the federal offense

of bank robbery pursuant to 18 U.S.C. § 2113(a), which punishes: -11- [w]hoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association[.]

Id.

Thus, both offenses require the taking of property by

either force, violence, fear or intimidation. The major

difference between the two crimes is that the North Carolina

offense applies to all victims, whereas the federal offense is

limited to victims who are banks, credit unions or savings and

loan associations.1 Accordingly, we conclude these offenses are

“substantially similar” to each other for purposes of N.C. Gen.

Stat. § 15A-1340.14(e) and that the trial court did not err in

calculating Defendant’s prior record level.

Conclusion

For the reasons stated above, we affirm.

AFFIRMED.

Judges McGEE and ELMORE concur.

Report per Rule 30(e).

1 Defendant does not raise this distinction in support of his argument on this issue.