State v. Friday

878 S.E.2d 858 (Table)

STATE of North Carolina

v.Tevin Damato FRIDAY

No. COA22-53

Court of Appeals of North Carolina.

Filed November 1, 2022

ARROWOOD, Judge.

¶ 1 Tevin Damato Friday ("defendant") appeals from judgments entered adjudging him guilty of: two counts of obtaining property by false pretenses, two counts of robbery with a dangerous weapon, one count of attempt to obtain property by false pretenses, one count of assault on a government official or employee, and one count of extortion. The trial court entered judgment on the charge of robbery with a dangerous weapon and sentenced defendant to a mitigated-range active term of 48 to 70 months in prison. The trial court consolidated the remaining six charges and sentenced defendant to a consecutive, mitigated-range active term of 48 to 70 months, for a total sentence of 96 to 140 months. Defendant alleges the trial court erred by: (1) allowing the State to introduce improper hearsay evidence through defendant's interrogation video, (2) defendant receiving ineffective assistance of counsel, (3) failing to instruct the jury on the lesser-included offense of common law robbery for the robbery of Mr. Bruner ("Bruner"), (4) instructing the jury that it could find defendant guilty on a theory of acting in concert, and (5) by allowing witnesses to make irrelevant and improper remarks about the area of Greensboro where defendant lived. As detailed below in our discussion of each issue, we find no error.

I. Background

¶ 2 On 26 June 2017, a Guilford County Grand Jury indicted defendant with two counts of obtaining property by false pretenses, two counts of robbery with a dangerous weapon, one count of possession of a stolen firearm, one count of attempt to obtain property by false pretense, one count of assault on a government official or employee, and one count of extortion. Defendant's cases came on for trial in July 2021 in Guilford County Superior Court, Judge Gould presiding. The State presented evidence tending to show the following:

¶ 3 In April 2017, Mr. Hall ("Hall") observed a Craigslist advertisement entitled "Casual Encounters" when he began conversing with a "young black lady" via text message. The advertisement was targeted at men older than 50 and requested a "donation" in exchange "for a certain amount of hours of ... time with this person" or "oral sex." The evening of 3 April 2017, after exchanging a series of text messages, Hall drove to "apartment X" located at 111 Marshall Street in Greensboro to meet the woman from the advertisement. Hall was told to come to the "top floor" about "three stories up."

¶ 4 After knocking on the apartment door, someone opened the door slightly and asked Hall if "[he] had a donation." Hall handed over $200.00, waited for approximately two or three minutes, then began to receive threatening text messages. The message claimed "[t]his was an underaged girl," and unless Hall agreed to give them additional money, they would alert the police. Hall agreed to deposit $400.00 into a Bank of America account the following day. Hall was given the account number and was directed to deposit the money into an account under the name "Tevin Friday." Hall deposited the money as instructed. Shortly after this encounter, Hall "confess[ed]" to his wife what had occurred and alerted the police.

¶ 5 The next individual who fell victim to the deceptive Craigslist advertisement was Bruner. Bruner testified that, on 13 April 2017, he was "[l]ooking to get hooked up" with a "female" when he came across the Craigslist advertisement. After having a conversation with someone he believed to be the woman from the advertisement, he was given an address and drove to Greensboro. When Bruner arrived, he waited about five or ten minutes and was told to "come up" to the apartment. As he was making his way up to the third floor, an individual with a gun came from the backside of the stairwell and told Bruner "[g]ive me your money." Bruner started pulling money out when he was directed to also hand over his wallet. Bruner did not contact the police. However, the Greensboro Police Department contacted Bruner at a later date "about [him] being robbed and [his] personal belongings being in [defendant's] apartment." Bruner also participated in a photo lineup of potential suspects, where he was unable to identify defendant.

¶ 6 A few weeks later, Mr. Hogan ("Hogan") had a similar interaction. Hogan's testimony tended to show that on 2 May 2017, he drove to Greensboro after searching through Craigslist advertisements for "company or [an] escort." After arriving at the apartment complex on Marshall Street, Hogan was told to "[c]ome up to the third floor." Hogan was almost at the top of the stairwell when he saw a tall, "skinny" black male that "[h]ad on a hoodie [and] [h]ad white dreads ... coming out from the edges of the hoodie." Hogan also stated that the man had a black handgun and was "pointing it at [his] head," while commanding him to "[e]mpty [his] pockets." Hogan threw his cellphone, wallet, $150.00 in cash, and his credit and identification cards on the ground. After returning home to Burlington, Hogan contacted the police. Hogan returned with his iPad and used his location services to show the officers where he was robbed and where his cellphone was last located.

¶ 7 Later that night and into the early morning hours of 3 May 2017, Ms. Brown ("Brown") began receiving text messages from whom she believed to be her friend, Hogan. The messages alleged that Hogan was in trouble and "owed some people money." Brown also received a phone call from Hogan's phone, affirming that she would help and travel to Greensboro to drop the money off. Brown collected a total of $500.00 and followed the instructions provided by the individual messaging her. Brown proceeded to the same apartment complex, to a cluster of mailboxes "behind the apartment building" and put the money into a mailbox. She then received a series of text messages asking her to remove the money from the inside of the mailbox and to place it on top. She responded that she was unable to remove the money. When Hogan never came outside, she decided to drive home.

¶ 8 Later that morning, Brown received additional text messages asking for more money. These messages were no longer coming from Hogan's phone, but instead from a different number claiming that Hogan's "phone had died[,] and he was using someone else's[.]" Brown went to the bank, but this time she was directed to put the money on top of the mailbox. When Brown arrived this time, the mailbox had clearly been damaged. Once again Brown proceeded to wait for Hogan.

¶ 9 When he didn't arrive, she texted asking him where he was and she received a message stating, "they won't let me go unless I give them more money." Brown waited a few more minutes and "observed a tall, black male with dreads run around behind the fence and then go around behind the building[.]" Brown continued to receive threatening messages. At one point, she received a message that stated, "[i]f I don't pay these monies, these people, they're [going to] kill me."

¶ 10 After the third request for additional money, Brown contacted the Greensboro Police Department. She explained to an officer what happened and how she believed her friend Hogan was in danger. She was told that Hogan had been home since the night before but had contacted them about a robbery. With the help of Brown, Greensboro police coordinated a third money drop, this time with the intention of apprehending the suspect once he grabbed the money from the mailbox.

¶ 11 After Brown placed the "money" on the mailbox, the surveillance team watched defendant retrieve the package. As officers approached, Officer Patrena Caviness identified herself and was tackled to the ground as defendant attempted to flee. Defendant was subsequently apprehended.

¶ 12 Officers then obtained a search warrant for defendant's apartment. Inside defendant's apartment, officers discovered IDs belonging to both Bruner and Hogan, money, Hogan's phone, and a black handgun belonging to defendant's cousin under the bed. Officers also obtained a search warrant for the contents of defendant's cellphone and found "several messages ... from a [Craigslist] account [to] ... Hogan." Officers also found a "Text Now application[,]" on defendant's device, which allowed him to generate a different cellphone number. Defendant used this different number to text Brown.

¶ 13 At trial, multiple officers testified to their investigative tactics and the evidence discovered. Specifically, officers discovered: the Craigslist account used to contact the victims was connected to defendant's school email account, the cellphone number used to message Hall belonged to defendant, a picture of Aaleyiah Bess ("Bess"), defendant's girlfriend, was the photo used on the Craigslist account, and officers obtained the financial records illustrating that the bank account Hall deposited $400.00 into belonged to defendant.

¶ 14 Defendant, in his defense, testified that he was not involved in any of the robberies, did not setup the Craigslist account, and was only in possession of the stolen items because they were "brought [to him]" by someone named "Boss" and his partner "Dollars."

¶ 15 Defendant was found guilty of two counts of obtaining property by false pretenses, two counts of robbery with a dangerous weapon, one count of attempt to obtain property by false pretenses, one count of assault on a government official or employee, and one count of extortion. Defendant timely appealed.

II. Discussion

A. Standard of Review

¶ 16 Defendant failed to object to the introduction of his interrogation video and the remarks of testifying witnesses he deemed prejudicial. Nor did defendant request a jury instruction on common law robbery. Therefore, he did not preserve any such error, and this Court's review is limited to whether the trial court committed plain error. State v. Canady , 271 N.C. App. 766, 767, ...