STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 00 CRS 2603-04
WILLIE WORLEY
Attorney General Roy Cooper, by Assistant Attorney General
June S. Ferrell, for the State.
Margaret Creasy Ciardella for defendant-appellant.
WYNN, Judge.
On 7 February 2000, the Mecklenburg County Grand Jury indicted
defendant on three counts of robbery with a dangerous weapon, and
it subsequently charged him with having attained the status of an
habitual felon.
At trial, the State introduced evidence tending to show the
following: At 10:30 a.m. on 14 January 2000, Christopher Ogikee
went to a motel and picked up defendant in his cab. While Ogikee
was driving defendant to his destination, defendant stuck a shotgun
in his ribs and demanded Ogikee's money. Defendant removed about
twenty dollars from Ogikee's shirt pocket and told him to pull into
a parking lot. He told Ogikee that he was going to search the caband would shoot Ogikee if he found any money.
Okigee managed to wrest the shotgun away from defendant as
defendant was attempting to get into the front seat of the cab.
Defendant ran into some bushes as Okigee drove away. Okigee then
informed his dispatcher that he had been robbed. The police
obtained a description from Okigee, and they stopped defendant
several blocks from the parking lot. After Okigee positively
identified defendant as the man who had robbed him, the police
arrested defendant. Defendant made no reference to officers of
having been coerced by Okigee to commit any robbery.
Upon hearing a description of the shotgun used by defendant,
other officers noted similarities to a robbery which had occurred
on the previous evening at a Texaco service station located less
than a mile from the Okigee robbery. When the arresting officer
viewed a security video tape from the Texaco, he determined that
defendant was the perpetrator of the Texaco robbery. Isaac
Johnson, a Texaco employee, picked defendant's picture out of a
photographic lineup and later identified him in open court as the
man who entered the Texaco on 13 January 2000 with a shotgun and
demanded money. Defendant took about $200.00 from the cash
register, demanded keys to a car, then drove away in Johnson's car.
Johnson testified that defendant made no comments or funny looks
and did not pass a note during the robbery.
Maurina Lowery, another Texaco employee, also identified
defendant's picture in the photographic lineup as being the man who
robbed the Texaco. Lowery gave police the video tape from theTexaco's security cameras. An officer prepared four photographs
from the security tape which showed the perpetrator in the Texaco
and walking toward a car afterwards. He testified the perpetrator
appeared to be the defendant. Defendant made a motion to dismiss
the charges at the close of the State's evidence, which the trial
court denied.
Defendant testified that Ogikee was a drug dealer to whom he
owed money for crack cocaine. He said two men with guns forced him
into the back of Ogikee's cab on 13 January 2000. Ogikee told
defendant he would die if he did not have Ogikee's money. After
learning defendant did not have the money, Okigee told defendant he
had to rob the Texaco in order to repay him. Defendant said he
carried out the robbery because he feared for his life and for the
lives of the Texaco employees. Because he thought a man sitting
outside the Texaco was going to call the police, defendant took
Johnson's car.
After counting the money from the Texaco robbery at the motel,
Okigee informed defendant that he still owed money to him. Okigee
left defendant at the motel overnight with the two men, then picked
defendant up in his cab the next morning. Okigee subsequently
parked the cab, and he and defendant argued. After Okigee tried to
hit defendant with the shotgun, defendant first attempted to grab
the gun and then ran away on foot. Defendant admitted he did not
try to explain the situation when police stopped him. He stated he
believed the police would think he was lying due to his criminal
record. Approximately three months after his arrest, defendant wrote
a letter to the district attorney in which he explained how he had
been held hostage, forced to rob the Texaco, and then escaped from
Okigee. Defendant admitted he had not related his account of his
actions to police prior to that time. Defendant renewed his motion
to dismiss at the close of all the evidence, and the trial court
again denied the motion and submitted the charges to the jury.
On 9 May 2001, the jury found defendant guilty of two counts
of robbery with a dangerous weapon and not guilty of one count of
robbery with a dangerous weapon. Defendant then admitted his
status as an habitual felon. The trial court imposed two
consecutive sentences having a combined minimum term of 240 months
and a combined maximum term of 306 months imprisonment. From the
trial court's judgments, defendant appeals.
Defendant contends the trial court erred by denying his motion
to dismiss the charges because the evidence was insufficient to
convict him. He argues he “presented virtually uncontradicted
testimony that he robbed the Texaco store and stole a car belonging
to one of that store's clerks out of fear for his life and out of
fear for the lives of the clerks in the store.” He asserts the
State's evidence merely raised a suspicion that he was not acting
under coercion when he robbed the Texaco and stole the car. We
disagree.
When ruling on a defendant's motion to dismiss, the trial
court must consider the evidence in the light most favorable to the
State; the State is entitled to every reasonable inference whichcan be drawn from the evidence presented, and all contradictions
and discrepancies are resolved in the State's favor. State v.
Davis, 325 N.C. 693, 696-97, 386 S.E.2d 187, 189 (1989); State v.
Abernathy, 295 N.C. 147, 165, 244 S.E.2d 373, 384-85 (1978). “If
there is substantial evidence - whether direct, circumstantial, or
both - to support a finding that the offense charged has been
committed and that defendant committed it, a case for the jury is
made and nonsuit should be denied.” State v. McKinney, 288 N.C.
113, 117, 215 S.E.2d 578, 582 (1975).
In this case, the State presented testimony by both Texaco
employees that defendant entered the business with a shotgun and
demanded money. After taking the money, the employees testified
defendant demanded car keys and fled the scene in the car of one of
the employees. The State also introduced pictures of an individual
identified as defendant robbing the Texaco which were taken from a
security video tape. Defendant himself admitted in open court that
he took the money from the Texaco and the car.
As for defendant's contention that he was acting under
coercion at the time of the offenses, “the general rule [is] that
in order to constitute a defense to a criminal charge . . . the
coercion or duress must be present, imminent or impending, and of
such a nature as to induce a well-grounded apprehension of death or
serious bodily harm if the act is not done.” State v. Henderson,
64 N.C. App. 536, 540, 307 S.E.2d 846, 849 (1983) . The trial court
here did instruct the jury as requested by defendant on the
affirmative defense of coercion or duress. Coercion or duress isan affirmative defense, and “[t]he burden of proving an affirmative
defense to the satisfaction of the jury is upon the defendant in a
criminal trial.” State v. Strickland, 307 N.C. 274, 297, 298
S.E.2d 645, 660 (1983); State v. Johnson, 317 N.C. 193, 344 S.E.2d
775 (1986).
The State's burden of proof remained that of establishing the
elements of the offenses charged; it did not have to rebut
defendant's affirmative defense of coercion or duress. Id.; see
also State v. Kearns, 27 N.C. App. 354, 357, 219 S.E.2d 228, 230-31
(1975), review denied, 289 N.C. 300, 222 S.E.2d 700 (1976).
Defendant failed to prove his affirmative defense of coercion or
duress to the satisfaction of the jury, for it found him to be
guilty of both offenses at the Texaco service station. When viewed
in the light most favorable to the State, there was substantial
evidence to support a finding that the two offenses were committed
and that defendant committed them. Therefore the trial court did
not err by denying defendant's motion to dismiss.
No error.
Judges McGEE and CAMPBELL concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***