State v. Matthews

623 S.E.2d 815, 175 N.C. App. 550, 2006 N.C. App. LEXIS 138
CourtCourt of Appeals of North Carolina
DecidedJanuary 17, 2006
DocketNo. COA04-1592.
StatusPublished
Cited by5 cases

This text of 623 S.E.2d 815 (State v. Matthews) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Matthews, 623 S.E.2d 815, 175 N.C. App. 550, 2006 N.C. App. LEXIS 138 (N.C. Ct. App. 2006).

Opinion

GEER, Judge.

In this case, although defendant Robert Eugene Matthews was convicted of felonious larceny, the jury could not reach a verdict on felonious breaking and entering. Because the jury did not make any finding that the value of goods taken during the larceny was more than $1,000.00, we are required under State v. Keeter, 35 N.C.App. 574, 241 S.E.2d 708 (1978) to vacate the felonious larceny judgment and remand for entry of a sentence consistent with a verdict of guilty of misdemeanor larceny. Further, since defendant was sentenced in the aggravated range based on judicially-found aggravating factors, we are also compelled to remand for a new sentencing hearing in accordance with State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005).

Facts

On 20 April 2003, Clintina Docher was cooking breakfast for her fiancée, Christopher Cofield, and her baby when a man knocked on the back door. Docher asked who it was, but received no response. Docher then heard a knock on the front door, and, when she asked who it was, a man responded "Rock." Cofield recognized "Rock" as someone he had seen involved in an altercation on a bus a month earlier. Cofield went to the door, and "Rock" asked if he had any cigarettes. Cofield responded that he did not, but that he would be going to the store soon.

After Cofield left, Docher heard another knock on the front door, and the person again identified himself as "Rock." When Docher tried to open the door, Rock grabbed her by the throat and pushed her back into the house. A second man, who Rock called Daniel, also entered the house. Both men were armed with guns. Daniel put his gun to the baby's head, while Rock pointed his gun at Docher's head. Rock threatened that he would kill the baby if Docher moved or if he did not find what he wanted in the house. Rock told Daniel to go upstairs and check every room.

After Daniel went upstairs, Rock put his gun up against the back of the baby's head and again threatened to kill her. When Rock turned his head away, Docher jumped over a coffee table, grabbed her baby out of her stroller, and tried to run out the door. Rock pulled Docher back inside and threatened to kill her if she tried anything again. The two men closed all of the windows and shades and tried to tie up Docher and her baby and put them in a closet.

During a search of the house, Rock and Daniel found $260.00. The men then made sandwiches, drank some orange juice, took a 40-ounce beer, and walked out the back door. Daniel immediately returned, grabbed Docher by the face, and threatened that if she told anyone what had happened, he would kill her and her family.

After the men were gone, Docher ran to a neighbor's apartment, and the neighbor called the police. When Docher later told another neighbor, China Townsend, what had happened, Townsend showed Docher a picture of defendant loading a gun. Docher identified the person in the picture as "Rock."

On 24 April 2003, defendant was arrested on a failure to appear charge and brought in for questioning. After waiving his Miranda rights, defendant stated that he had been at *818his mother's funeral on the day of the robbery. Defendant's mother was, however, still alive on the date of the robbery and, in fact, was seen in the courthouse on the first day of defendant's trial.

Defendant was indicted for (1) robbery with a dangerous weapon, (2) felony breaking and entering, (3) felony larceny, (4) assault by pointing a gun, (5) communicating threats, (6) two counts of second degree kidnapping, (7) conspiracy to commit robbery with a dangerous weapon, and (8) possession of a firearm by a felon. The trial court granted a mistrial on the felony breaking and entering charge because the jury was unable to reach a unanimous verdict. The jury found defendant guilty on each of the remaining charges.

During sentencing, the trial judge found six aggravating factors and no mitigating factors. Based on those aggravating factors, the trial judge sentenced defendant to consecutive aggravated sentences of 129 to 164 months for robbery with a dangerous weapon, 42 to 60 months for conspiracy to commit robbery with a dangerous weapon, 42 to 60 months for each second degree kidnapping conviction, 20 to 24 months for possession of a firearm by a felon, 12 to 15 months for felony larceny, 75 days for assault by pointing a gun, and 45 days for communicating threats.

I

With respect to all of his convictions, defendant argues that the trial court committed plain error by failing to exclude certain evidence under Rule 404(b) of the Rules of Evidence, including: (1) the photograph of defendant loading a gun shown by Townsend to Docher; (2) testimony by Townsend regarding statements she made to defendant and regarding her taking of the photograph; (3) Christopher Cofield's testimony that he had witnessed defendant in an altercation on a bus in March 2003; and (4) testimony by police investigator G.K. Coats that defendant had been arrested for failing to appear. Since defendant's counsel did not object to the admission of the challenged evidence, defendant asks us to review the admission of the evidence for plain error.

Plain error is "a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done; or grave error that amounts to a denial of a fundamental right of the accused; or error that has resulted in a miscarriage of justice or in the denial to appellant of a fair trial." State v. Gregory, 342 N.C. 580, 586, 467 S.E.2d 28, 32 (1996). Although the State argues that plain error review cannot be used in this instance because the admission of this evidence was in the discretion of the trial judge, this Court has previously held that the admission or exclusion of evidence under Rule 404(b) may be reviewed for plain error. See, e.g., State v. Berry, 143 N.C.App. 187, 194-95, 546 S.E.2d 145, 151-52, disc. review denied, 353 N.C. 729, 551 S.E.2d 439 (2001).

Rule 404(b) of the North Carolina Rules of Evidence provides:

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Related

State v. Wilkerson
775 S.E.2d 925 (Court of Appeals of North Carolina, 2015)
State v. Gomez
705 S.E.2d 421 (Court of Appeals of North Carolina, 2011)
State v. Swinehart
675 S.E.2d 720 (Court of Appeals of North Carolina, 2009)
State v. Tanner
666 S.E.2d 845 (Court of Appeals of North Carolina, 2008)
State v. Marsh
652 S.E.2d 744 (Court of Appeals of North Carolina, 2007)

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Bluebook (online)
623 S.E.2d 815, 175 N.C. App. 550, 2006 N.C. App. LEXIS 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-matthews-ncctapp-2006.