                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                No. COA17-714

                              Filed: 7 August 2018

Hertford County, Nos. 16CRS000278-80, 16CRS050275, 16CRS050284-87

STATE OF NORTH CAROLINA

               v.

SHENONDOAH PERRY and EARL LAMONT POWELL, Defendants.


      Appeal by Defendants from judgments entered 15 September 2016 by Judge

Cy A. Grant in Hertford County Superior Court. Heard in the Court of Appeals 8

February 2018.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Daniel
      Snipes Johnson and Assistant Attorney General Jeremy D. Lindsley, for the
      State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Emily H.
      Davis, for Defendant Shenondoah Perry.

      Glover & Peterson, P.A., by James R. Glover, for Defendant Earl Lamont
      Powell.


      DILLON, Judge.


      Defendants Shenondoah Perry and Earl Lamont Powell appeal from

judgments entered upon jury verdicts finding them guilty of numerous offenses in

connection with a shooting. For the reasons stated below, we vacate Defendant

Perry’s conviction for assault on a child and otherwise leave the judgments

undisturbed.
                              STATE V. PERRY AND POWELL

                                    Opinion of the Court



                                     I. Background

         The evidence at trial tended to show that one night in March 2016, Defendants

and two other men opened fire at a car occupied by three individuals. Two of the

individuals in the car were struck with bullets and were severely injured. The third

individual, a child in the back seat, was not struck by a bullet but was injured by

broken glass caused by the gunfire.

         Defendants were arrested and tried together. Both were convicted by a jury of

multiple charges. Both gave timely notice of appeal.

                                       II. Analysis

         On appeal, the parties make various arguments, which we address in turn

below.

                                 A. Miranda Argument

         Defendants’ first argument pertains to Defendant Perry’s in-court testimony

regarding his alibi to support his testimony that he was not present during the

shooting. Specifically, Defendants contend that the trial court committed reversible

error by permitting the prosecutor to question Defendant Perry on cross-examination

regarding his silence to the police after his arrest regarding this alibi. N.C. Const.

art. I, § 23 (“In all criminal prosecutions, every person charged with a crime has the

right to . . . not be compelled to give self-incriminating evidence[.]”).




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                           STATE V. PERRY AND POWELL

                                 Opinion of the Court



      Here, the prosecutor questioned Defendant Perry during cross-examination

regarding both his (1) post-arrest, pre-Miranda silence, and (2) post-arrest, post-

Miranda silence.

      The following exchange occurred during the State’s cross-examination

regarding Defendant Perry’s silence after his arrest but before he had been informed

of his Miranda rights:

            [PROSECUTOR]: Now, When you were being processed at
            the jail, [the officer] was still with you along with some
            other officers; is that correct?

            [DEFENDANT PERRY]: Yes.

            [PROSECUTOR]: When did you tell them that you were
            with Francesca Cooper on the night that you were charged?

            [DEFENSE COUNSEL LEWIS]: Objection.

            [THE COURT]: Overruled. Go ahead.

             ...

            [PROSECUTOR]: When did you tell [the officer] that you
            didn’t do [participate in the shooting] because you were
            with your baby’s mama on the night it happened?

            [DEFENDANT PERRY]: I don’t recall that.

            [PROSECUTOR]: So you didn’t tell him?

            [DEFENDANT PERRY]: I don’t recall that.

            [PROSECUTOR]: Okay, so you didn’t tell him that is my
            question.



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                             STATE V. PERRY AND POWELL

                                   Opinion of the Court



             [DEFENDANT PERRY]: No.

And the following exchange occurred during cross-examination regarding Defendant

Perry’s post-arrest, post-Miranda silence:

             [PROSECUTOR]: What if anything did you tell the
             deputies after you were advised of your rights? And it says
             having these rights in mind, do you wish to answer any
             questions without hav[ing] a lawyer present and you said
             yes. What did you tell these officers?

             [DEFENDANT PERRY]: I didn’t tell them [any]thing.

             [PROSECUTOR]: Okay. You never told them a thing?

             [DEFENDANT PERRY]: No.

                          1. Post-arrest, Pre-Miranda Silence

      Although a defendant’s post-arrest, post-Miranda warning silence may not be

used by the State for any purpose, State v. Mendoza, 206 N.C. App. 391, 395, 698

S.E.2d 170, 174 (2010), a defendant’s post-arrest, pre-Miranda silence “may be used

by the State to impeach a defendant by suggesting that the defendant’s prior silence

is inconsistent with his present statements at trial.” Id. Our Supreme Court has

instructed that a defendant’s silence about an alibi at the time of arrest can constitute

an inconsistent statement, and that this silence can be used to impeach a defendant’s

alibi offered at trial if it would have been natural for a defendant to mention the alibi

at the time of his encounter with the police. State v. Lane, 301 N.C. 382, 386, 271

S.E.2d 273, 276 (1980).



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                             STATE V. PERRY AND POWELL

                                  Opinion of the Court



      In the present case, there was evidence which showed as follows: The offenses

were perpetrated no more than 72 hours before Defendant Perry was arrested and

informed of the charges against him. Defendant Perry knew the victims named in

the warrant: he knew one of the victims because she was his ex-girlfriend, and he

knew the other victim from hanging out in the same neighborhood.              Despite

Defendant Perry’s familiarity with these two victims and the location where the

shooting occurred, he made no statements that he had an alibi to account for his

whereabouts during the commission of the crime.           When the officer charged

Defendant Perry with three counts of attempted murder and three counts of injury to

real or personal property, Defendant Perry failed to mention his alibi when it would

have been natural to deny that he would not have attempted to kill his ex-girlfriend,

her current partner, and his ex-girlfriend’s son.

      Based on this evidence, we conclude that Defendant Perry’s silence is

inconsistent with his later alibi testimony presented for the first time during trial.

Therefore, the trial court did not err when it allowed the State to impeach Defendant

Perry on cross-examination about his failure to say anything about his alibi when the

warrants were read to him and before he had received Miranda warnings.

                         2. Post-arrest, Post-Miranda silence

      We note that while Defendant Perry’s counsel objected to the first set of

questions regarding Defendant Perry’s post-arrest, pre-Miranda silence, counsel did



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                              STATE V. PERRY AND POWELL

                                    Opinion of the Court



not object to the second set of questions regarding Defendant’s post-arrest, post-

Miranda silence. To preserve a question for appellate review, a party must make a

timely objection, stating the specific grounds for the ruling sought if the specific

grounds are not apparent. State v. Eason, 328 N.C. 409,420, 402 S.E.2d.E2d 809, 814

(1991).

       In State v. Moore, our Supreme Court held that “[i]n criminal cases, an issue

that was not preserved by objection . . . may be made the basis of an issue presented

on appeal when the judicial action questioned is specifically and distinctly contended

to amount to plain error.” State v. Moore, 366 N.C. 100, 105-06, 726 S.E.2d 168, 173

(2012). When a defendant fails to object to the admission of testimony at trial, we

review only for plain error. N.C. R. App. P. 10(a)(4). Accordingly, we must review

any error using the plain error standard of review.

       “For unpreserved evidentiary error to be plain error, the defendant has the

burden to show that after examination of the entire record, the error 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 (internal marks omitted). The inquiry is whether the

defendants have shown on appeal that “the error has resulted in a miscarriage of

justice or in the denial to appellant of a fair trial . . . [,]” Moore, 366 N.C. at 106, 726

S.E.2d at 173, and “absent the error, the jury probably would have returned a

different verdict.” State v. Lawrence, 365 N.C. 506, 519, 723 S.E.2d 326, 335 (2012).



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                                  STATE V. PERRY AND POWELL

                                         Opinion of the Court



       In the present case, the admission of Defendant Perry’s silence about an alibi

post-Miranda warning, although improper, does not amount to plain error for either

Defendant. Assuming that the admission of this evidence was error, we cannot say

that it is reasonably probable that there would have been a different outcome had

evidence of Defendant Perry’s silence not been admitted. “[G]iven the brief, passing

nature of the evidence in the context of the entire trial, the evidence is not likely to

have ‘tilted the scales’ in the jury's determination of [Defendants’] guilt or innocence.”

Moore, 366 N.C. at 107, 726 S.E.2d at 174.

       Indeed, there was ample evidence establishing Defendants’ guilt. For example,

one of the victims testified at trial, identifying both Defendants as the two shooters

with one hundred percent certainty.              Also, this victim testified that he had an

altercation earlier in the day with Defendant Powell where Defendant Powell pointed

a gun at him. This evidence was sufficient to establish Defendants’ guilt such that

the improper admission of Defendant Perry’s post- Miranda silence did not prejudice

him in a way that resulted in an unfair trial. Accordingly, Defendants’ argument is

overruled.1



       1  We note Defendant Powell’s argument that he was prejudiced by the admission of his co-
defendant’s post-arrest silence. Specifically, Defendant Powell put on evidence at trial that he, too,
was somewhere else during the shooting. Defendant Powell contends that the evidence of Defendant
Perry’s silence not only tended to rebut Defendant Perry’s alibi evidence but also his own alibi
evidence. We are not persuaded that Defendant Powell suffered prejudice which would warrant a new
trial. Indeed, there is no factual link between Defendant Powell’s alibi evidence and Defendant Perry’s
alibi evidence. That is, any destruction of Defendant Perry’s alibi evidence by Defendant Perry’s
silence did not bear on the factual circumstances of Defendant Powell’s alibi evidence.

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                            STATE V. PERRY AND POWELL

                                  Opinion of the Court



                                 B. Sentencing Error

      Defendant Perry was convicted of and sentenced for multiple charges. Two of

these convictions were for assault with a deadly weapon under N.C. Gen. Stat. § 14-

32 and assault on a child under N.C. Gen. Stat. § 14-33, both for the firing of the gun

towards the minor in the back seat of the car.

      Defendant Perry argues that his conviction and sentence for the assault on the

child must be vacated. The State, however, argues that only the sentence should be

vacated, while the conviction should be allowed to stand.

      We agree with Defendant Perry. Specifically, Section 14-33 states that a

defendant shall be “guilty of” assault on a child “unless” another statute provides

harsher punishment for the same conduct. N.C. Gen. Stat. § 14-33 (2015). Here,

since Defendant Perry was convicted and sentenced for assault with a deadly weapon

under Section 14-32 for his assault on the minor in the back seat and since this

conviction carries a harsher punishment than that provided under Section 14-33,

Defendant Perry cannot be said to be “guilty of” violating Section 14-33. See, e.g.,

State v. Davis, 364 N.C. 297, 306, 698 S.E.2d 65, 70 (2010) (ordering the “judgments”

for the lesser offenses be “vacated”).     We, therefore, vacate, Defendant Perry’s

conviction and sentence for assault on a child, but leave the other convictions and

sentences undisturbed.

      NO ERROR IN PART, VACATED AND REMANDED IN PART.



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                 STATE V. PERRY AND POWELL

                      Opinion of the Court



Judges STROUD and INMAN concur.




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