              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-484

                              Filed: 7 February 2017

Scotland County, No. 14 CRS 050962

STATE OF NORTH CAROLINA

             v.

JAMES MCLEAN


      Appeal by defendant from judgments entered 15 October 2015 by Judge James

M. Webb in Scotland County Superior Court.         Heard in the Court of Appeals

20 October 2016.


      Attorney General Joshua H. Stein, by Assistant Attorney General Kenneth Sack,
      for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Anne M.
      Gomez, for defendant-appellant.


      McCULLOUGH, Judge.


      James McLean (“defendant”) appeals from judgments entered upon his

convictions of assault with a deadly weapon inflicting serious injury, robbery with a

dangerous weapon, and discharging a firearm from within a building with the intent

to incite fear.    On appeal, defendant argues that judgment entered upon his

conviction for discharging a firearm within a building with the intent to incite fear

must be vacated, the trial court erred by denying his motion to dismiss the robbery

with a dangerous weapon charge, the trial court erred by allowing Lieutenant Jason
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Butler to vouch for the credibility of a victim, the trial court erred by allowing

Shaquana McInnis to provide testimony amounting to inadmissible hearsay, and the

trial court erred by assessing a fee against defendant to pay for the State’s expert

witness. For the reasons stated herein, we hold no error in part and vacate in part.

                                  I.     Background

      On 27 October 2014, defendant was indicted for the following: attempted first

degree murder in violation of N.C. Gen. Stat. § 14-17; assault with a deadly weapon

with intent to kill inflicting serious injury in violation of N.C. Gen. Stat. § 14-32(a);

robbery with a dangerous weapon in violation of N.C. Gen. Stat. § 14-87; and,

discharging a firearm within an enclosure to incite fear in violation of N.C. Gen. Stat.

§ 14-34.10.

      Defendant’s trial commenced at the 12 October 2015 criminal session of

Scotland County Superior Court, the Honorable James M. Webb presiding. The

State’s evidence tended to show as follows: On 25 April 2014, approximately nine

people, including the State’s witnesses Rodrigues McRae (“McRae”), Vincent Smith

(“Smith”), John Shaw (“Shaw”), Acey Braddy (“Braddy”), and Shaquana McInnis

(“McInnis”), were playing cards in a cinder-block building behind a residence located

at 508 Morris Street in Laurinburg, North Carolina. Sometime between 3:00 and

4:00 a.m., four individuals, each armed, entered the building. Three of the intruders

had on masks and one was unmasked. The unmasked man said, “Don’t move[]” and



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“Y’all killed my brother. I’m going to terrorize you Laurinburg mother****ers[.]” The

unmasked man then fired two shots. Braddy was shot in his chest and said “Man,

you shot me. You shot me.” McRae and Braddy identified the unmasked shooter who

shot Braddy as defendant.

       Defendant ordered everyone to “get facedown on the ground and take our

clothes off[]” and then said, “Give me all your money.” Braddy testified that the three

masked intruders “just stood like soldiers[]” while defendant “did everything by

hisself [sic].”   McRae testified that “I just took my pants and my wallet and

everything, and my keys and my cell phone, and just gave it all to them.” The

following items were taken from the State’s witnesses: a cell phone and twenty

dollars from Smith; $800.00 from Shaw; a cell phone and money from Braddy; and “a

couple hundred dollars” from McInnis.        The testimony from Smith, Shaw, and

McInnis corroborated Braddy and McRae’s testimony.

       Lieutenant Jason Butler (“Lieutenant Butler”) from the Laurinburg Police

Department testified that in the early morning hours of 26 April 2014, he was

dispatched to Scotland Memorial Hospital in reference to a gunshot wound.

Lieutenant Butler was directed to a trauma room where he interviewed Braddy.

Braddy had suffered a single gunshot wound. Braddy informed Lieutenant Butler

that he was playing cards with several people when four people ran into the room,

three of them wearing masks, and one of them made the statement, “Y’all killed my



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brother. I’m going to terrorize you n****** in Laurinburg.” Braddy stated that the

intruders ordered them “to take their clothes off and lay on the ground, where some

cash and cell phones and things like that were taken from them.” As the intruders

were exiting, Braddy heard a gunshot and felt pain in his back.          Braddy told

Lieutenant Butler that the unmasked person was “the brother of Chris McKoy.”

Lieutenant Butler testified that Braddy “was agitated and seemed to be in some pain.

But he was – to me, he seemed truthful.”

      Officer Merica Zabitosky (“Officer Zabitosky”), who was employed with the City

of Laurinburg, interviewed Braddy later that morning on 26 April 2014. Braddy

identified defendant as the masked shooter, gave a description of defendant’s

appearance, and stated that defendant “[l]ook[ed] just like his brother Chris

McKoy[.]”

      At trial, McInnis testified that after the robbery, she was incarcerated. While

in a holding cell with a few other females, she heard one of the females having a

conversation with a man in a nearby cell. The man wanted to know the identity of

all the females in the cell. McInnis provided her name and the man said through the

cell wall, “You wrote a statement against me[.]” McInnis testified that she recognized

the voice as that of the unmasked shooter from the 26 April 2014 robbery. McInnis

responded that she did not write a statement and the male voice said “that they were

going to put him in a cell with me, and ‘We’ll see what you say then.’ ” McInnis



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testified that she asked the jailer whether “James McLean” was in there and “she did

say he was in there.” McInnis testified that because of this incident, she was scared

to testify.

       On 15 October 2015, a jury found defendant not guilty of attempted first degree

murder. The jury found defendant guilty of assault with a deadly weapon inflicting

serious injury, robbery with a firearm, and discharging a firearm from within a

building with the intent to incite fear.

       Defendant was sentenced as a prior record level IV to 38 to 58 months for his

assault with a deadly weapon inflicting serious injury conviction, 97 to 129 months

for his robbery with a dangerous weapon conviction, and 25 to 39 months for

discharging a firearm from within a building with the intent to incite fear conviction.

       Defendant appeals.

                                   II.     Discussion

       Defendant presents five issues on appeal. We address each in turn.

              A.   Discharging a Firearm Within an Enclosure to Incite Fear

       In his first argument on appeal, defendant contends that the judgment entered

upon his conviction for discharging a firearm within an enclosure to incite fear must

be vacated because the indictment was insufficient to charge defendant with that

crime. The State concedes and we agree.




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      “This Court reviews the sufficiency of an indictment de novo.” State v. Mann,

237 N.C. App. 535, 539, 768 S.E.2d 138, 141 (2014). “[A] valid bill of indictment is

essential to the jurisdiction of the trial court to try an accused for a felony.” State v.

Miranda, 235 N.C. App. 601, 605, 762 S.E.2d 349, 353 (2014) (citation omitted). “An

indictment for a statutory offense is sufficient, as a general rule, when it charges the

offense in the language of the statute.” State v. Penley, 277 N.C. 704, 707, 178 S.E.2d

490, 492 (1971).

      Here, the “discharging a firearm within enclosure to incite fear” indictment

charged that “defendant named above unlawfully, willfully and feloniously did

discharge a handgun, a firearm, into an occupied structure with the intent to incite

fear in others. This act was in violation of North Carolina General Statutes Section

14-34.10.” (emphasis added).

      N.C. Gen. Stat. § 14-34.10, entitled “Discharge firearm within enclosure to

incite fear[,]” provides that “any person who willfully or wantonly discharges or

attempts to discharge a firearm within any occupied building, structure, motor

vehicle, or other conveyance, erection, or enclosure with the intent to incite fear in

another shall be punished as a Class F felon.” N.C. Gen. Stat. § 14-34.10 (2015)

(emphasis added). N.C. Gen. Stat. § 14-34.1, entitled “Discharging certain barreled

weapons or a firearm into occupied property[,]” provides that

             [a]ny person who willfully or wantonly discharges or
             attempts to discharge any firearm or barreled weapon


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             capable of discharging shot, bullets, pellets, or other
             missiles at a muzzle velocity of at least 600 feet per second
             into any building, structure, vehicle, aircraft, watercraft, or
             other conveyance, device, equipment, erection, or enclosure
             while it is occupied is guilty of a Class E felony.

N.C. Gen. Stat. § 14-34.1(a) (2015) (emphasis added).

      The indictment in question attempted to charge defendant of violating N.C.

Gen. Stat. § 14-34.10 but failed to accurately and sufficiently charge that offense.

Instead, the indictment alleged that defendant discharged a firearm “into” an

occupied structure. As such, we hold that the indictment was insufficient to confer

jurisdiction upon the trial court. Defendant’s judgment entered upon his conviction

for discharging a firearm from within a building with the intent to incite fear is

vacated.

                     B.     Robbery with a Dangerous Weapon

      In the second issue on appeal, defendant contends that the trial court erred by

denying his motion to dismiss the robbery with a dangerous weapon charge.

Specifically, defendant argues that there was insufficient evidence that he committed

a taking from Braddy’s person or presence. We disagree.

      Our Court reviews de novo the trial court’s motion to dismiss. State v. Bagley,

183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007). “A trial court should deny a

motion to dismiss if, considering the evidence in the light most favorable to the State

and giving the State the benefit of every reasonable inference, there is substantial



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evidence of each essential element of the offense charged and of the defendant being

the perpetrator of the offense.” State v. Lawson, 194 N.C. App. 267, 278, 669 S.E.2d

768, 775-76 (2008) (internal quotation marks and citation omitted). “Substantial

evidence is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991)

(citation and quotation marks omitted).

                    The elements of robbery with a dangerous weapon
             are: (1) the unlawful taking or an attempt to take personal
             property from the person or in the presence of another (2) by
             use or threatened use of a firearm or other dangerous
             weapon (3) whereby the life of a person is endangered or
             threatened.

State v. Hill, 365 N.C. 273, 275, 715 S.E.2d 841, 843 (2011) (citation and internal

quotation marks omitted) (emphasis added). Our Court has stated that:

             [t]he word “presence” . . . must be interpreted broadly and
             with due consideration to the main element of the crime-
             intimidation or force by the use or threatened use of
             firearms. “Presence” here means a possession or control by
             a person so immediate that force or intimidation is
             essential to the taking of the property.

State v. Cole, 199 N.C. App. 151, 156, 681 S.E.2d 423, 427 (2009) (citation omitted).

      To establish that defendant took personal property from Braddy’s person or

presence, the State presented the following evidence: Four intruders, three masked

and one unmasked, entered a cinderblock building in the early morning hours of

25 April 2014. All four men were armed. McRae and Braddy identified the unmasked



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shooter who shot Braddy as defendant. McRae testified that defendant, as well as

others, were ordering the occupants of the building to “get facedown on the ground

and take our clothes off.” McRae testified that defendant said, “Get butt-a** naked.

Give me all your money.” Braddy testified that “Mr. McLean did everything by hisself

[sic][]” while the other three intruders “just stood like soldiers.” Braddy further

testified that “everybody got robbed. A few people got their clothes took off. He took

cell phones.” In addition, the following exchange occurred:

             [THE STATE:] When you were laying there on the ground,
             was anything taken from you as far as property?

             [BRADDY:] My cell phone.

             [THE STATE:] Anything else?

             [BRADDY:] No. The money had been tooken [sic].

      Viewing the foregoing evidence in the light most favorable to the State, we hold

that there was substantial evidence that defendant took personal property from

Braddy’s person or presence. See State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d

377, 383 (1988) (“If there is substantial evidence — whether direct, circumstantial,

or both — to support a finding that the offense charged has been committed and that

the defendant committed it, the case is for the jury and the motion to dismiss should

be denied.”) (citation omitted). Accordingly, the trial court did not err by denying

defendant’s motion to dismiss the robbery with a dangerous weapon charge.

                    C.    Testimony of Lieutenant Jason Butler


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      In the third issue on appeal, defendant argues that the trial court committed

plain error by allowing Lieutenant Butler to testify that Braddy “seemed truthful”

and that he felt Braddy wanted police to find the perpetrator. Defendant contends

that Lieutenant Butler’s testimony constituted an opinion which tended to vouch for

the credibility of Braddy.

      On 26 April 2014, Lieutenant Butler interviewed Braddy at the hospital.

Defendant challenges the following exchange between the State and Lieutenant

Butler:

             Q.    Okay. Generally, what was Mr. Braddy’s demeanor
             like when he was talking to you?

             A.    He was agitated and seemed to be in some pain. But
             he was - to me, he seemed truthful. I mean, I think he
             wanted - I felt that he wanted me to - or us, the police
             department, to find the people that had injured him.

      We first note that because defendant failed to object to the admission of this

testimony, “the proper standard of review is a plain error analysis[.]” State v. Gary,

348 N.C. 510, 518, 501 S.E.2d 57, 63 (1998).

             [T]he plain error rule . . . is always to be applied cautiously
             and only in the exceptional case where, after reviewing the
             entire record, it can be said the claimed error is a
             “fundamental error, something so basic, so prejudicial, so
             lacking in its elements that justice cannot have been done,”
             or “where [the error] is grave error which amounts to a
             denial of a fundamental right of the accused,” or the error
             has “ ‘resulted in a miscarriage of justice or in the denial to
             appellant of a fair trial’ ” or where the error is such as to


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             “seriously affect the fairness, integrity or public reputation
             of judicial proceedings” or where it can be fairly said “the
             instructional mistake had a probable impact on the jury’s
             finding that the defendant was guilty.”

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation omitted).

      Rule 701 of the North Carolina Rules of Evidence provides that “[i]f the witness

is not testifying as an expert, his testimony in the form of opinions or inferences is

limited to those opinions or inferences which are (a) rationally based on the

perception of the witness and (b) helpful to a clear understanding of his testimony or

the determination of a fact in issue.” N.C. Gen. Stat. § 8C-1, Rule 701 (2015). Our

Courts have held that “when one witness vouch[es] for the veracity of another

witness, such testimony is an opinion which is not helpful to the jury’s determination

of a fact in issue and is therefore excluded by Rule 701.” State v. Global, 186 N.C.

App. 308, 318, 651 S.E.2d 279, 286 (2007) (citation and internal quotation marks

omitted).

      In the present case, Lieutenant Butler testified that Braddy “seemed

truthful[.]” This was an opinion that vouched for the veracity of another witness.

The jury had the opportunity to make an independent determination of Braddy’s

veracity when Braddy testified at trial. Therefore, Lieutenant Butler’s opinion of

Braddy’s veracity was not helpful to the jury and admission of this testimony

amounted to error. However, we conclude that it did not amount to plain error given




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the testimony from four other witnesses, McRae, Smith, Shaw, and McInnis, which

corroborated Braddy’s testimony.

                       D.     Testimony of Shaquana McInnis

      In the fourth issue on appeal, defendant argues that the trial court committed

plain error by allowing Shaquana McInnis to testify that after the 25 April 2014

incident, while she was incarcerated, a jailer told her that defendant was in a jail cell

adjacent to hers. Defendant argues that because the jailer did not testify at trial and

her testimony was offered for the truth of the matter asserted, that defendant was in

the holding cell, McInnis’ testimony amounted to inadmissible hearsay.

      “ ‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” N.C. Gen. Stat. § 8C-1(a), Rule 801 (2015). Generally, hearsay evidence is

inadmissible. State v. Valentine, 357 N.C. 512, 515, 591 S.E.2d 846, 851 (2003).

However, “[o]ut-of-court statements offered for purposes other than to prove the truth

of the matter asserted are not considered hearsay.” State v. Castaneda, 215 N.C. App.

144, 147, 715 S.E.2d 290, 293 (2011) (citation omitted).

      At trial, McInnis testified that she was afraid to give a formal written

statement to police and to testify. She explained that she was afraid to testify because

of an incident that occurred previously. While incarcerated and in a holding cell with

other females, McInnis heard one of the women having a conversation with a man in



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an adjacent cell. The man wanted to know the identity of all the women. McInnis

provided her name and the man said through the cell wall, “You wrote a statement

against me[.]” McInnis testified that she recognized the voice as that of the unmasked

shooter from the 26 April 2014 robbery. McInnis responded by denying that she wrote

a statement and the male voice replied “that they were going to put him in a cell with

me, and ‘We’ll see what you say then.’ ” McInnis could not see into the men’s holding

cell. McInnis then asked a jailer whether “James McLean” was in the adjacent cell

and the jailer confirmed that he was. Defendant did not object to the admission of

the foregoing testimony.

      Upon thorough review, we hold that defendant’s argument has no merit. The

challenged testimony in the case sub judice was not offered to prove the truth of the

matter asserted. Rather, it was offered to explain why McInnis was afraid to testify.

Even assuming arguendo that McInnis’ testimony amounted to inadmissible hearsay,

the admission of this testimony did not amount to plain error in light of the

substantial evidence of defendant’s guilt.

                           E.   Fee for the State’s Witness

      In his last argument on appeal, defendant contends that the trial court erred

by assessing a fee against him to pay for the State’s expert witness, Doctor Scott

Martinelli (“Dr. Martinelli”). We agree.




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      At trial, the State called on Dr. Martinelli, an emergency-room physician who

worked at Scotland Memorial Hospital. Dr. Martinelli was accepted as an expert in

the field of emergency medicine and testified regarding the treatment he

administered to Braddy on 26 April 2014. During sentencing, the trial court ordered

that defendant, as a condition of any early release or post-release supervision, must

reimburse the State $5,075.00 for the services of his court-appointed attorney, $60.00

appointment fee, and $780.00 for the testimony of Dr. Martinelli.

      The trial court also signed a form “CR-231” from the Administrative Office of

the Courts on 15 October 2015. The form was entitled “Order for Expert Witness Fee

in Criminal Cases at the Trial Level” and provided as follows:

             The Court finds that:

             The person named below[, Dr. Martinelli,] was compelled
             to attend court and testify as an expert, or provided
             necessary expert services pursuant to a prior court order,
             and the person named below was duly sworn and gave
             testimony of such nature and character as to qualify as an
             expert witness, or provided services that were necessary
             expenses of prosecution; and

             Therefore, it is ORDERED that the amount listed as Total
             Compensation and Reimbursables To Be Paid be allowed
             this expert, to be paid from Judicial Branch funds by the
             North Carolina Administrative Office of the Courts. It is
             further ORDERED that all reasonable and necessary
             expenses already incurred, in accordance with G.S. 7A-
             343(9f), by the North Carolina Administrative Office of the
             Courts associated with this witness’ appearance to be paid
             from the Judicial Branch funds by the North Carolina
             Administrative Office of the Courts.


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(emphasis added). The total compensation and reimbursables to be paid was listed

as $780.00.

      The order listed several statutes regarding the authority of the trial court to

order compensation for an expert: N.C. Gen. Stat. §§ 7A-300, 7A-314, 7A-343, 7A-

454, and 8C-1, Rule 702.      N.C. Gen. Stat. § 7A-300 lists the various expenses

necessary for the proper functioning of the Judicial Department, including “[f]ees and

travel expenses . . . of witnesses required to be paid by the State[,]” and provides that

the operating expenses of the Judicial Department “shall be paid from State funds,

out of appropriations for this purpose made by the General Assembly, or from funds

provided by local governments pursuant to G.S. 7A-300.1, 153A-212.1, or 160A-

289.1.” N.C. Gen. Stat. § 7A-300(a)(6) (2015). N.C. Gen. Stat. § 7A-314 sets out how

witness fees and compensation are to be determined. N.C. Gen. Stat. § 7A-343 lists

the duties of the Director of the Administrative Officer of the Courts, including

“[p]rescrib[ing] policies and procedures for payment of those experts acting on behalf

of the court or prosecutorial offices, as provided for in G.S. 7A-314(d).” N.C. Gen.

Stat. § 7A-343(9f) (2015). N.C. Gen. Stat. § 7A-454 provides that “[f]ees for the

services of an expert witness . . . for an indigent person and other necessary expenses

of counsel shall be paid by the State in accordance with rules adopted by the Office of

Indigent Defense Services.” N.C. Gen. Stat. § 7A-454 (2015). Lastly, N.C. Gen. Stat.

§ 8C-1, Rule 702 states that “[i]f scientific, technical or other specialized knowledge


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will assist the trier of fact to understand the evidence or to determine a fact in issue,

a witness qualified as an expert by knowledge, skill, experience, training, or

education, may testify thereto in the form of an opinion[.]” N.C. Gen. Stat. § 8C-1,

Rule 702(a) (2015).

      From the record, there does not appear to be any statutory authority for the

trial court to require defendant, as a condition of any early release or post-release

supervision, to pay the expenses of the State’s expert witness, Dr. Martinelli. The

15 October 2015 order of the trial court explicitly states that Dr. Martinelli is “to be

paid from Judicial Branch funds by the North Carolina Administrative Office of the

Courts.” As such, we vacate the trial court’s assessment of an expert witness fee as

a condition of any early release or post-release supervision.

                                   III.   Conclusion

      Defendant’s judgment entered upon his conviction for discharging a firearm

within a building with intent to incite fear is vacated. The trial court did not err by

denying defendant’s motion to dismiss the robbery with a dangerous weapon charge.

The trial court did not commit plain error by allowing Lieutenant Butler to testify

that Braddy “seemed truthful” or by allowing McInnis to testify that a jailer informed

her that defendant was in an adjacent holding cell. We vacate the trial court’s

assessment of an expert witness fee as a condition of any early release or post-release

supervision.



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NO ERROR IN PART; VACATED IN PART.

Judges ELMORE and STROUD concur.




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