State v. Grady

852 S.E.2d 631

STATE of North Carolina

v.Adell GRADY

No. COA19-1025

Court of Appeals of North Carolina.

Filed: December 1, 2020

Attorney General Joshua H. Stein, by Special Deputy Attorney General Colleen M. Crowley, for the State.

Dunn, Pittman, Skinner & Cushman, PLLC, by Rudolph A. Ashton, III, New Bern, for defendant.

DIETZ, Judge.

Defendant Adell Grady appeals his convictions for felony breaking and entering, felony larceny, and possession of a firearm by a felon. He argues that the trial court erred by admitting the State's evidence that he committed another similar breaking and entering. Grady also argues that an officer's testimony about that other break-in involved inadmissible hearsay. Finally, Grady argues that there was insufficient evidence that he stole any guns during the break-in and thus the charge of possession of a firearm by a felon should have been dismissed.

We reject these arguments. The evidence of the other break-in, which took place on a neighboring street, at around the same time, on the same day, by someone with the same general features and dressed in the same clothes as the perpetrator of the charged offenses, was properly admitted under Rule 404(b) for various reasons other than solely to show Grady's propensity to commit those offenses.

Likewise, the officer's description of what the victim of that other break-in told him, just minutes after that break-in occurred, was admissible as a present sense impression. Finally, the State's evidence was sufficient to overcome a motion to dismiss the charge of possession of a firearm by a felon, even without any direct evidence that Grady stole the guns, based on the evidence that those guns were present in a locked house before the break-in, that they were missing afterward, and that Grady was the perpetrator of the break-in. We therefore find no error in the trial court's judgments.

Facts and Procedural History

In 2018, Officer Jesse Moore with the Wilmington Police Department responded to a report of a breaking and entering at a home on Fowler Street. When Moore arrived, he observed that the front door was kicked in. The resident of the home, Jason Gray, was not there.

Gray's next-door neighbors, the Overbys, had called 911. They were waiting outside for police to arrive. Ms. Overby reported that her husband had been across the street feeding a neighbor's dog that morning when she heard a loud noise, looked outside, and saw a man walk across the corner of their driveway from the direction of Gray's house, and then walk east on Fowler Street toward a nearby apartment complex. Ms. Overby described the man as African-American, wearing a red and black hoodie, and carrying a Game Stop bag. Shortly after, Ms. Overby saw a gold car drive by several times making a loud noise.

As Mr. Overby was walking back from the neighbor's house, the gold car, a Dodge Neon, stopped in front of the Overbys’ house. The driver asked Mr. Overby for directions. Mr. Overby described the driver as a black man with grayish hair and beard, probably in his 40s or 50s, and wearing a red and black hoodie. After the man drove off, Mr. Overby went to check on Gray's house, saw that the front door was kicked open, and told Ms. Overby to call the police.

Ms. Overby later checked their security system video footage, where she again saw the man with the red and black hoodie. The video captured the man walking next door toward Gray's home with nothing in his hands and then coming out across the front of the Overbys’ house with a Game Stop bag in his hands. The Overbys testified that they couldn't see what was in the bag, but "you could tell by looking at it, it was kind of – stuck out on different sides or whatever and you could tell there was weight in the bag." The Overbys provided their surveillance footage to Officer Moore. Ms. Overby also viewed footage showing the man walking to the gold car parked at the nearby apartment complex, getting in the car, and driving towards the Overbys’ home. The Overbys were unable to provide that portion of the footage to police due to a system malfunction.

After Officer Moore notified Jason Gray, the home's resident, of the break-in, Gray returned home to find that his front door was broken open, the house had been ransacked, and many of his belongings were missing. The missing items included multiple electronic devices, video games and gaming consoles, and three firearms (two handguns and a shotgun). Gray testified that he had Game Stop bags in his residence at the time of the break-in.

On the same morning as the Fowler Street break-in, Officer William Rose investigated a breaking and entering at a house on Dexter Street, one street over from Fowler Street. Officer Rose arrived shortly before 10:20 a.m. As Officer Rose was approaching the Dexter Street house, the home's resident, James Smith, arrived and ran towards the backyard. Officer Rose followed him. Smith identified himself as the resident of the home and as "the person who had called 911 because of the house being broken into." Smith was "agitated," "excited," and "angry" and told Officer Rose that his house had just been broken into.

Smith showed Officer Rose a portion of a video that was automatically sent to his cell phone from his home's security camera, showing that there was someone inside the residence. The time stamp on the video was 10:17 a.m. After waiting for other officers to arrive, Officer Rose entered the residence. There was property damage to the rear door frame of the residence where the surveillance video showed the suspect had entered. Officer Rose then asked Smith if anything was missing from the residence, and Smith told the officer that a television was missing.

Sergeant Brian Needham later reviewed security video footage from both Fowler Street and Dexter Street. Both videos showed a black man wearing a red and black hooded sweatshirt. The man could be seen entering the home on Dexter Street and carrying away a television. Upon comparing the videos, Sergeant Needham concluded that the same individual committed both the Dexter Street and Fowler Street break-ins. After locating the gold Dodge Neon from the Fowler Street surveillance footage and identifying its owner, Needham went on Facebook where he found a photo of the car's owner with a man who closely resembled the description given by the Overbys and the man in the security videos. Needham identified the man as Defendant Adell Grady and found a Facebook photo from the previous month showing Grady wearing a red and black hooded sweatshirt that was the same style of sweatshirt worn by the suspect in the surveillance videos.

Police then located Grady and arrested him. At the time of his arrest, Grady was wearing what officers believed to be the same red and black Nike hooded sweatshirt shown in the surveillance videos. Grady was charged with breaking and entering, larceny, and possession of a firearm by a felon in connection with the Fowler Street break-in.

Corporal Carlos Lamberty and Detective Robert Ferencak interviewed Grady after his arrest and showed him still shots from the surveillance videos of the break-ins. Grady then admitted to his direct involvement in the Dexter Street break-in and admitted to his presence on Fowler Street around the time of that break-in. He implicated a man named Cedric Age as the perpetrator of the break-ins. Grady admitted to driving the gold Dodge Neon in the Fowler Street video and to being in the house on Dexter Street. He also admitted to knowing about the television taken from the Dexter Street house, which he believed was later sold for drugs. But Grady denied breaking into the Fowler Street house and said he had nothing to do with the missing guns.

On 11 June 2018, Grady was indicted for felony breaking and entering, felony larceny, injury to real property, possession of a firearm by a felon, and attaining habitual felon status, all in connection with the Fowler Street break-in. The State did not move forward with any charges related to the Dexter Street break-in because James Smith, the home's resident, later refused to cooperate with the prosecution.

On 4 March 2019, the case went to trial. Following a voir dire with the law enforcement officers involved, the trial court admitted the State's evidence regarding the uncharged Dexter Street break-in under Rule 404(b) over Grady's repeated objections. Officers Rose, Needham, Lamberty, and Ferencak testified to the details of their investigation as described above. The trial court admitted Officer Rose's testimony about Smith's statements to him at the scene of the Dexter Street break-in, overruling Grady's hearsay objection. At the close of evidence, Grady moved to dismiss the charges and the trial court denied the motion.

On 7 March 2019, the jury convicted Grady of felony breaking and entering, felony larceny, and possession of a firearm by a felon. Grady then admitted his status as a habitual felon and also pleaded guilty to unrelated breaking and entering and larceny charges. The trial court sentenced Grady as a habitual felon to 111 to 146 months in prison plus restitution of $4,854.96 for breaking and entering, and concurrent sentences of 111 to 146 months for larceny and 120 to 156 months for possession of firearm by a felon. Grady also received a concurrent sentence of 12 to 24 months on the charges to which he pleaded guilty. Grady appealed.

Analysis

I. Admission of Rule 404(b) evidence of Dexter Street break-in

Grady first argues that the trial court erred by admitting the State's Rule 404(b) evidence of the uncharged breaking and entering and larceny that occurred on Dexter Street on the same morning as the Fowler Street break-in at issue in this case. Grady contends that the evidence was inadmissible under Rule 404(b) because it merely "showed a propensity for him to commit the crime" and, even if it was admissible under Rule 404(b), it should have been excluded under Rule 403 because its probative value was outweighed by...