A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA02-2


Filed: 3 September 2002


         v.                        Mecklenburg County
                                Nos. 00 CRS 2603-04

    Appeal by defendant from judgments entered 10 May 2001 by Judge James W. Morgan in Superior Court, Mecklenburg County. Heard in the Court of Appeals 26 August 2002.

    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).

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