{ "id": 9080945, "name": "STATE OF NORTH CAROLINA v. TOMMY LEE EUBANKS", "name_abbreviation": "State v. Eubanks", "decision_date": "2002-07-16", "docket_number": "No. COA01-1031", "first_page": "499", "last_page": "506", "citations": [ { "type": "official", "cite": "151 N.C. App. 499" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "540 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2000, "pin_cites": [ { "page": "382" }, { "page": "382" }, { "page": "382" }, { "page": "383" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 679", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12133610 ], "year": 2000, "pin_cites": [ { "page": "689" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0679-01" ] }, { "cite": "284 S.E.2d 312", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "318" } ], "opinion_index": 0 }, { "cite": "304 N.C. 511", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569335 ], "year": 1981, "pin_cites": [ { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0511-01" ] }, { "cite": "343 S.E.2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "845" } ], "opinion_index": 0 }, { "cite": "316 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694299 ], "year": 1986, "pin_cites": [ { "page": "692" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0666-01" ] }, { "cite": "446 S.E.2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "356-57" } ], "opinion_index": 0 }, { "cite": "337 N.C. 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549942 ], "year": 1994, "pin_cites": [ { "page": "377-78" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0371-01" ] }, { "cite": "467 S.E.2d 395", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "397-98" } ], "opinion_index": 0 }, { "cite": "342 N.C. 875", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795920 ], "year": 1996, "pin_cites": [ { "page": "878-79" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0875-01" ] }, { "cite": "450 S.E.2d 562", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "568" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 141", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524600 ], "year": 1994, "pin_cites": [ { "page": "152" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0141-01" ] }, { "cite": "552 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "625-26", "parenthetical": "citations omitted" }, { "page": "626" } ], "opinion_index": 0 }, { "cite": "354 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138508 ], "year": 2001, "pin_cites": [ { "page": "119", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0076-01" ] }, { "cite": "548 S.E.2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "831" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 134", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11436116 ], "year": 2001, "pin_cites": [ { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0134-01" ] } ], "analysis": { "cardinality": 723, "char_count": 15738, "ocr_confidence": 0.717, "pagerank": { "raw": 7.971921456061723e-07, "percentile": 0.9733671731440713 }, "sha256": "a7cba8ed261f8f6b3ef4c8092a8b2657296e91b07eb5d8962720abe11ab548c1", "simhash": "1:c73e70a2da0491fe", "word_count": 2541 }, "last_updated": "2023-07-14T16:47:19.620477+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and THOMAS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TOMMY LEE EUBANKS" ], "opinions": [ { "text": "HUNTER, Judge.\nTommy Lee Eubanks (\u201cdefendant\u201d) appeals the trial court\u2019s judgment sentencing him to a prison term of 240 to 297 months for second degree murder. We find no prejudicial error.\nThe evidence at trial tended to establish the following facts. The victim, Jimmy Quick, had been friends with defendant, despite the fact that Quick had stolen items from defendant on multiple occasions, and despite the fact that defendant had, as a result, previously taken out criminal charges against Quick and had threatened to kill Quick. On 22 January 2000, Quick was present at defendant\u2019s home, along with defendant (who was sick and in bed that day), Candy Sharpe, Wanda Smith, Donald Dawkins, and defendant\u2019s ex-wife, Betty Eubanks. The individuals were all friends and some had been smoking crack cocaine and consuming alcohol. At some point during the evening, while defendant was asleep, Sharpe, Eubanks, Smith and Quick took defendant\u2019s van. Due to heavy snow, they were unable to return defendant\u2019s van to defendant\u2019s home that evening. Sharpe called defendant, and defendant became angry and threatened to kill Quick because Quick had stolen defendant\u2019s vehicle on a prior occasion. Due to the weather, Smith and Quick spent the night at Sharpe\u2019s home.\nThe following day, after Smith called defendant, defendant and Dawkins (who had spent the night at defendant\u2019s home) arrived at Sharpe\u2019s home in a truck at approximately 12:45 p.m. Defendant was angry, but appeared to calm down once Smith showed defendant where the van was parked. Shortly thereafter, after returning to the kitchen of Sharpe\u2019s home, Smith heard defendant, Quick, and Dawkins talking outside. She then heard Quick scream, \u201c \u2018No, Tommy Lee; no, Tommy Lee,\u2019 \u201d and saw him run by the window. Smith heard a single gunshot, opened the door, and saw Quick laying on the ground and defendant standing nearby holding a shotgun and aiming it at Quick. Defendant said, \u201c \u2018You\u2019d better call some son of a bitch to come after this motherf \u2014 er,\u2019 \u201d and then he and Dawkins left. Quick subsequently died as a result of the gunshot wound. At some point immediately following the shooting, defendant took the gun and hid it in his sister\u2019s house.\nRichmond County Chief Deputy Sheriff Phil Sweatt arrived at the scene of the shooting and subsequently called defendant\u2019s home and left a message for him. Defendant returned Deputy Sweatt\u2019s call within minutes and asked about the severity of Quick\u2019s injuries and whether defendant had killed Quick. Defendant indicated that he was at the house of Linda Jacobs, and he agreed to meet with Deputy Sweatt and to help the police locate the gun. Deputy Sweatt and other deputies then went to Jacobs\u2019 home. Deputy Robert Lee Taylor took defendant to locate the gun, and defendant admitted that he had left the gun at his sister\u2019s house. During the ride to defendant\u2019s sister\u2019s house, defendant said to Deputy Taylor, \u201c T tried to shoot him in the ass, but I missed.\u2019 \u201d Deputy Taylor located the gun in a closet at defendant\u2019s sister\u2019s house.\nDefendant was charged and tried for the offense of first degree murder. The jury found defendant guilty of second degree murder, and the trial court entered judgment and sentenced defendant to a prison term of 240 to 297 months. On appeal, defendant has entered twenty-five assignments of error. Defendant has incorporated five of these into the four arguments in his appellate brief; defendant\u2019s remaining assignments of error are deemed abandoned. See N.C.R. App. P. 28(b)(6). Defendant\u2019s four arguments are: (1) the trial court erred in admitting certain testimony by Sharpe and Smith; (2) the trial court erred by instructing the jury on \u201cflight\u201d; (3) the trial court erred by refusing to submit the charge of involuntary manslaughter to the jury; and (4) the trial court erred in determining defendant\u2019s prior record level.\nI.\nBy two assignments of error, defendant argues that the trial court erred in admitting testimony by Sharpe and Smith tending to show that defendant orchestrated a scheme whereby Quick, Sharpe, Smith, and others routinely stole clothing and then obtained refunds by returning the stolen clothing, and that, in exchange for their participation in the scheme, defendant provided them with drugs, and also that defendant himself used drugs. Defendant argues that this evidence should have been excluded pursuant to Rule 404(b) of the North Carolina Rules of Evidence (\u201cRule 404(b)\u201d) because its only purpose was to demonstrate defendant\u2019s character. However, a review of the transcript reveals that defendant elicited substantively similar testimony during cross-examination of Smith. Thus, even assuming arguendo that the admission of the testimony in question during the direct examinations of Sharpe and Smith constituted error, we hold that any such error was not prejudicial. See, e.g., State v. Featherson, 145 N.C. App. 134, 138, 548 S.E.2d 828, 831 (2001). These assignments of error are overruled.\nII.\nDefendant next argues that the trial court erred by instructing the jury on \u201cflight\u201d (pursuant'to N.C.P.I., Crim. 104.36) over defendant\u2019s objection. It is well established that\n\u201c[e]vidence of a defendant\u2019s flight following the commission of a crime may properly be considered by a jury as evidence of guilt or consciousness of guilt.\u201d A trial court may properly instruct on flight where there is \u201c \u2018some evidence in the record reasonably supporting the theory that the defendant fled after the commission of the crime charged.\u2019 \u201d However, \u201c[m]ere evidence that defendant left the scene of the crime is not enough to support an instruction on flight. There must also be some evidence that defendant took steps to avoid apprehension.\u201d\nState v. Lloyd, 354 N.C. 76, 119, 552 S.E.2d 596, 625-26 (2001) (citations omitted). Defendant argues that the instruction on flight was not supported by the record because, although it was undisputed that defendant drove away from Sharpe\u2019s home shortly after the shooting, there was no additional evidence that defendant \u201ctook steps to avoid apprehension.\u201d Id. Furthermore, defendant argues, the prejudice resulting from the improper instruction is demonstrated by the fact that the prosecutor for the State specifically argued to the jury during his closing argument that the jury could infer defendant\u2019s intent to kill Quick from the fact that he fled the scene and hid his gun.\nWe disagree with defendant that the instruction was improper. The undisputed evidence established the following factors which, taken together, support an instruction on flight: (1) defendant provided no assistance to Quick after shooting him, see id. at 119, 552 S.E.2d at 626; (2) defendant fled the scene of the shooting and disposed of his gun, see State v. Nixon, 117 N.C. App. 141, 152, 450 S.E.2d 562, 568 (1994); and (3) defendant did not voluntarily contact the police or turn himself into the police but, rather, merely cooperated with their investigation once he was contacted by the police, see State v. Brewton, 342 N.C. 875, 878-79, 467 S.E.2d 395, 397-98 (1996). This assignment of error is overruled.\nIII.\nDefendant next argues that the trial court erred by denying his request to submit the verdict of involuntary manslaughter to the jury. A defendant is entitled to have a verdict of a lesser included offense submitted to the jury if it is supported by the evidence, and in determining whether a lesser included offense is supported by the evidence, the evidence must be viewed in the light most favorable to the defendant. See State v. Barlowe, 337 N.C. 371, 377-78, 446 S.E.2d 352, 356-57 (1994). Involuntary manslaughter, which is a lesser included offense of murder, \u201cis the unlawful and unintentional killing of another without malice which proximately results from an unlawful act not amounting to a felony nor naturally dangerous to human life, or by an act or omission constituting culpable negligence.\u201d State v. Barts, 316 N.C. 666, 692, 343 S.E.2d 828, 845 (1986). Defendant argues that a verdict of involuntary manslaughter should have been submitted to the jury because there was evidence tending to show that \u201cthe shooting occurred through the mishandling of an extremely old, indeed, antique and battered, firearm which [defendant] was negligently waving around.\u201d However, although there was evidence that the shotgun was old and, therefore, might generally have been prone to being discharged by accident, there was no evidence tending to show that this particular firing of the gun by defendant resulting in Quick\u2019s death was unintentional. In fact, there was evidence tending to show that defendant fired the gun intentionally, including evidence that defendant told Deputy Taylor that he had intended to shoot Quick in the rear end and had missed. \u201c[W]hen all the evidence tends to show that defendant committed the crime charged and did not commit a lesser included offense, the court is correct in refusing to charge on the lesser included offense.\u201d State v. Gerald, 304 N.C. 511, 520, 284 S.E.2d 312, 318 (1981). We hold that the trial court did not err in refusing to submit the verdict of involuntary manslaughter to the jury. This assignment of error is overruled.\nIV.\nFinally, defendant argues that the trial court erred in determining that defendant had twelve prior record points and a prior record level of four. The record indicates that the only evidence presented by the State was a prior record level worksheet purporting to list five prior convictions between 1958 and 1990. The following colloquy transpired immediately prior to the State\u2019s submission of this document:\nThe Court: Evidence for the State?\n[The Prosecutor]: If Your Honor please, under the Structured Sentencing Act of North Carolina, the defendant has a prior record level of four in this case, Your Honor.\nThe Court: Do you have a prior record level worksheet?\n[The Prosecutor]: Yes, sir, I do.\nThe Court: All right. Have you seen that, Mr. Prelipp [attorney for defendant]?\nMr. Prelipp: I have, sir.\nThe Court: Any objections to that?\nMr. Prelipp: No, sir.\nDefendant contends that the State failed to satisfy the requirements set forth in Section 15A-1340.14(f) of our General Statutes, which provides, in pertinent part:\n(f) Proof of Prior Convictions. \u2014 A prior conviction shall be proved by any of the following methods:\n(1) Stipulation of the parties.\n(2) An original or copy of the court record of the prior conviction.\n(3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts.\n(4) Any other method found by the court to be reliable.\nThe State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the court is the same person as the offender named in the prior conviction.\nN.C. Gen. Stat. \u00a7 15A-1340.14(f) (2001). There is no question that a worksheet, prepared and submitted by the State, purporting to list a defendant\u2019s prior convictions is, without more, insufficient to satisfy the State\u2019s burden in establishing proof of prior convictions. See State v. Hanton, 140 N.C. App. 679, 689, 540 S.E.2d 376, 382 (2000). Thus, the question here is whether the comments by defendant\u2019s attorney constitute a \u201cstipulation\u201d to the prior convictions listed on the worksheet submitted by the State.\nIn Hanton, the defendant on appeal challenged the trial court\u2019s calculation of his prior record level. Id. at 688-89, 540 S.E.2d at 382. The State had not presented any evidence as to the defendant\u2019s prior convictions other than a work sheet and a computer printout. Id. at 689, 540 S.E.2d at 382. The Court reviewed the following exchange that occurred between defense counsel, the prosecutor, and the trial court:\n\u201c[The Prosecutor]: [T]he State would like to present a work sheet on Mr. Hanton. If I may approach, Your Honor.\nThe Court: All right.\n[The Prosecutor]: Mr. Hanton, by the State\u2019s reckoning, has 18 prior points, making him a Level 5.\nThe Court: Mr. Farfour, with the exception of the kidnapping charge, is there any disagreement about the other convictions on there?\n[The Defense Attorney]: No, Your Honor.\nThe Court: All right.\n[The Prosecutor]: If I may approach, Your Honor, with that and the computer documentation supporting the charges.\u201d\nId. The Court concluded that this colloquy \u201cmight reasonably be construed as an admission by defendant that he had been convicted of the other charges appearing on the prosecutor\u2019s work sheet.\u201d Id. at 690, 540 S.E.2d at 383.\nLikewise, we hold that the statements made by the attorney representing defendant in the present case may reasonably be construed as a stipulation by defendant that he had been convicted of the charges listed on the worksheet. We also note that defendant has not asserted in his appellate brief that any of the prior convictions listed on the worksheet do not, in fact, exist. This assignment of error is overruled.\nFor the reasons stated herein, we find no prejudicial error in defendant\u2019s trial or sentencing.\nNo error.\nJudges WYNN and THOMAS concur.\n. We note that, although defendant initially assigned error to the trial court\u2019s admission of testimony by Sharpe and Smith tending to show that defendant had threatened to kill Quick on numerous prior occasions, defendant has failed to present this argument in his appellate brief and has, therefore, abandoned this specific argument.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Steven F. Bryant, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defenders Beth S. Posner and Daniel R. Pollitt, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TOMMY LEE EUBANKS\nNo. COA01-1031\n(Filed 16 July 2002)\n1. Evidence\u2014 other offenses \u2014 similar testimony elicited by defendant \u2014 no prejudice\nThere was no prejudicial error in a murder prosecution where the court admitted testimony on direct examination tending to show that defendant had used and supplied drugs and that defendant had orchestrated a scheme to obtain refunds by returning stolen clothing. Defendant elicited similar testimony on cross-examination.\n2. Criminal Law\u2014 instruction on flight \u2014 sufficiency of evidence\nThe trial court did not err in a murder prosecution by instructing the jury on flight where defendant provided no assistance to the victim after shooting him; fled the scene of the shooting and disposed of his gun; and did not voluntarily contact the police or turn himself in, but merely cooperated once he was contacted by the police.\n3. Homicide\u2014 murder \u2014 old firearm \u2014 no evidence of unintentional firing \u2014 no instruction on involuntary manslaughter\nThe trial court did not err in a murder prosecution by not submitting involuntary manslaughter to the jury where defendant contended that the shooting occurred through the mishandling of an old firearm, but there was no evidence tending to show that this particular firing of the gun was unintentional. In fact, there was evidence that defendant fired the gun intentionally.\n4. Sentencing\u2014 determination of prior record level \u2014 State\u2019s worksheet \u2014 construed stipulation by defendant\nThere was no error in a second-degree murder sentencing proceeding where the court determined defendant\u2019s prior record level from a worksheet prepared by the State. Although a worksheet prepared by the State is insufficient to satisfy the State\u2019s burden, statements by defendant\u2019s attorney here may be construed as a stipulation that defendant had been convicted of the charges listed on the worksheet.\nAppeal by defendant from judgment entered 19 October 2000 by Judge James M. Webb in Richmond County Superior Court. Heard in the Court of Appeals 5 June 2002.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Steven F. Bryant, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defenders Beth S. Posner and Daniel R. Pollitt, for defendant-appellant." }, "file_name": "0499-01", "first_page_order": 529, "last_page_order": 536 }