STATE OF NORTH CAROLINA
v. Wake County
No. 98CRS64472, 99CRS13
CHARLES DAVID BECTON, 99CRS1280, 63109-10
Defendant
Attorney General Roy Cooper, by Assistant Attorney General
Kathleen U. Baldwin, for the State.
John T. Hall for defendant-appellant.
EAGLES, Chief Judge.
Defendant was charged with felony possession of a stolen motor
vehicle and four counts of robbery with a dangerous weapon. The
State's evidence tends to show that on the afternoon of 24 November
1998 an unidentified male, wearing a blue and white plaid flannel
shirt and white t-shirt underneath, an allergy mask over his face
and a blue ball cap on his head, and carrying a small green canvas
bag, entered the Branch Banking and Trust Company (BB&T) on
Creedmoor Road in Raleigh, North Carolina. Upon entering the bank,
the man approached Terry Frye, a bank customer service
representative who was working as a teller on that day, while
extracting a silver handgun from the green bag that he wascarrying. The gunman demanded money. Frye believed the gun to be
real, and therefore, gave the robber approximately $3,000.00. The
gunman then moved to the next teller, Amy Preddy, and again
demanded and was given money. The masked man then exited the
bank. The bank's security camera recorded the entire robbery.
Frye and Preddy observed the robber drive away in what looked like
a silver Nissan. Frye was unable to obtain the license plate
number from the vehicle. At trial, Frye and Preddy identified
defendant as the person who robbed the Creedmoor Road BB&T on 24
November 1998.
On the afternoon of 21 December 1998, Mark Williams observed
an unattended, but idling champagne-colored, metallic Nissan Maxima
in the Summit Credit Union parking lot in Raleigh, North Carolina.
As Williams entered a nearby elevator, he noticed a man, reading a
newspaper standing on the walkway near the credit union's entrance.
Williams described the man as approximately 6 feet in height,
stocky build, and clean shaven. The man was wearing hospital scrub
type pants, light tan Timberland boots and a jacket, with a canvas
bag on the floor next to his feet. Williams became suspicious of
the man when he returned to the parking lot and the man was still
there. Williams left and used his cellular telephone to call back
to the Summit Credit Union and tell bank officials about the
suspicious man. Later that same afternoon, Williams was called by
Raleigh police officers. The officers wished to speak with
Williams about the suspicious man he had seen earlier, since the
credit union had been robbed. Williams subsequently identifieddefendant as the suspicious man who had earlier been standing
outside of the credit union and credit union employees identified
defendant as the person who robbed the credit union.
Trooper J.K. Holland of the North Carolina Highway Patrol
located the gold Nissan Maxima utilized by defendant to flee the
scene of the Summit Credit Union robbery in the Rex Hospital
parking lot. Agent Brian Robert Hotchkiss of the City-County
Bureau of Investigation collected five fingerprints from the
vehicle. These fingerprints were subsequently determined to match
those of defendant. Police officers later determined that the
vehicle found in the hospital parking lot had been stolen from its
owner Sean Kohler on 3 November 1998 from the Books-A-Million
parking lot in Raleigh.
On 21 January 1999, defendant robbed the Carolina Telco
Federal Credit Union located at 2509 Creedmoor Road in Raleigh.
Linda Bennett, the credit union manager, and Fran Donovant were
operating the front counter when defendant entered with a coarse
piece of fabric over his head, carrying a small silver gun and
demanded money. Defendant also wanted to know the location of the
safe. When Bennett and Donovant turned to go toward the safe,
defendant shot Donovant and fled the scene. Later, on the same
day, Bennett positively identified defendant as being the man who
robbed the credit union. Bennett also identified defendant as the
robber at trial.
After fleeing the scene of the Carolina Telco robbery in a
white Chevy Blazer, defendant led Raleigh police officers on a highspeed chase. Defendant lost control of the vehicle he was driving.
When the vehicle came to a halt, defendant jumped out of the
vehicle while clutching a black bag to his chest and ran up a hill.
However, after running up the hill and discovering that there was
nowhere to run, defendant gave up. He dropped the black bag that
he was carrying, and was then handcuffed and placed under arrest.
While Officer William Potter of the Raleigh Police Department was
handcuffing defendant, defendant inquired if the lady was okay and
stated that he did not mean to shoot the lady. Police found a gun
lying in the grass where defendant originally jumped out of the
vehicle and discovered that the black bag that defendant had been
clutching contained a large amount of United States currency. In
processing the vehicle, police officers also found a green backpack
and black leather portfolio. Additionally, a blue baseball cap
with white lettering reading CT was found on the floorboard behind
the driver's seat and a black nylon stocking cap was located in the
front passenger's seat.
Defendant testified at trial, denying his participation in any
of the robberies. He testified that he was visiting his father in
Orlando, Florida at the time of the BB&T robbery on 24 November
1998, but could not provide the specific dates of travel or any
receipts for his bus tickets. Defendant stated that he earned an
adequate income from selling items on eBay, an Internet auction
site. Defendant maintained that he purchased the white Blazer in
which he was apprehended at the same time that the 21 December 1998
Summit robbery occurred, but admitted that his notarized signatureon the vehicle's bill of sale was dated 22 December 1998. He
denied ever driving the Nissan Maxima involved in the BB&T and
Summit robberies. In fact, defendant stated that he found the
black bag full of money at a computer school building in which he
had been. The black stocking cap found in the Blazer was stated by
defendant to be a “wave cap,” used to produce hair waves. He
admitted that the baseball cap found in the Blazer at the time of
his arrest belonged to him, but denied that the gun found at the
scene was his. Additionally, while defendant initially denied
having asked police officers about the condition of the woman who
had been shot during the 21 January 1999 Summit robbery, he later
admitted to asking about her “out of sheer concern” because
officers told him someone had been shot in an armed robbery.
Defendant explained that he ran from police because he was on
probation.
Defendant's wife testified and corroborated defendant's
testimony that he was in Orlando, Florida on 24 November 1998. She
also indicated that the Blazer was bought on 21 December 1998.
Defendant's wife, however, admitted that she had no knowledge of
defendant doing any work on the computer.
A jury found defendant guilty as charged and the trial court
sentenced him to a total of four consecutive terms of 96-125 months
imprisonment. Defendant appeals.
On appeal, defendant first argues that the trial court erred
in allowing the State to admit, over his objection, evidence of the
robbery of the Carolina Telco Credit Union on 21 January 1999. Defendant contends that the evidence was inadmissible under N.C.R.
Evid. 404(b) and 403. We disagree.
Rule 404(b) provides that while relevant evidence of other
crimes, wrongs or acts may not be admissible as character evidence
to prove that the defendant acted in conformity with those other
events, such evidence “may . . . be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake, entrapment or
accident.” N.C.R. Evid. 404(b). Rule 404(b) has been noted to be
a rule of inclusion, and not exclusion. State v. Coffey, 326 N.C.
268, 278-79, 389 S.E.2d 48, 54 (1990). Rule 404(b) evidence is
“subject to the weighing of probative value versus unfair prejudice
mandated by Rule 403.” State v. Agee, 326 N.C. 542, 549, 391
S.E.2d 171, 175 (1990). To that end, our Supreme Court noted in
State v. Coffey, that evidence which is probative of the State's
case is necessarily prejudicial to the defendant; “the question is
one of degree.” 326 N.C. 268, 281, 389 S.E.2d 48, 56 (1990).
“Whether to exclude evidence under Rule 403 is a matter left to the
sound discretion of the trial court.” Id.
In the instant case, prior to jury selection the trial court
heard evidence relating to defendant's arrest, which included
evidence regarding the 21 January 1999 robbery of the Carolina
Telco Credit Union. The State presented a summary of the evidence
which tended to show that defendant was alleged to have committed
a series of three bank robberies -- the 24 November 1998 robbery of
the BB&T on Creedmoor Road, the 21 December 1998 robbery of theSummit Credit Union, and the 21 January 1999 robbery of the
Carolina Telco Credit Union. During the first robbery, defendant
wore a blue baseball cap and carried a green backpack similar to
the ones found in defendant's vehicle after the 21 January 1999
Carolina Telco Credit Union robbery, police chase and resulting
arrest. During the second robbery, defendant wore a black nylon
stocking similar to that found in the vehicle after the 21 January
1999 bank robbery and police chase, which resulted in his arrest.
Finally, the black bag that defendant clutched after the 21 January
1999 police chase was similar to the bag described by Mark Williams
and the bank tellers from Summit Credit Union. Notably, all three
of the robberies involved banking institutions, situated within a
few miles of each other. In each robbery, the assailant wore a cap
or some other head cover, used some implement to cover a portion of
his face, brandished a small silver gun while demanding money and
carried similar bags to collect the stolen money. Finally, in all
of the robberies, there were only two tellers on duty at the time
of the robbery's commission.
We conclude that evidence of the 21 January 1999 robbery of
Carolina Telco Credit Union, the subsequent police chase and
capture of defendant, and the search incident to his lawful arrest
was admissible to show defendant's identity, common plan, scheme or
modus operandi under Rule 404(b). Further, the evidence regarding
the 21 January 1999 robbery of Carolina Telco also tends to
“complete the story,” so as to qualify under the pre-Rules of
Evidence chain of circumstances exception. See State v. White, 349N.C. 535, 552, 508 S.E.2d 253, 264 (1998) (citing Agee, 326 N.C. at
548, 391 S.E.2d at 174-75).
Defendant next argues that the trial court improperly admitted
the evidence in violation of N.C.R. Evid. 403. After hearing the
State's proffer and arguments from counsel, the trial court allowed
the State's motion in limine. In doing so the court stated:
So Mr. DA, your motion is allowed as to that
proffered evidence for the limited purposes
under 404B . . . . In regards to Rule 403, .
. . the Court is going to find that the
probative value on behalf of the State is
substantially outweighed by any danger or
unfair prejudice to the Defendant, and will
allow it in review in Rule 403 also.
Defendant contends the trial court's statement that “the probative
value on behalf of the State is substantially outweighed by any
danger of unfair prejudice,” supports his argument that the trial
court erred in admitting the evidence. We disagree.
A closer review of the record reveals that this statement was
mere lapsus linguae. Immediately after the misstatement, the trial
court stated that the evidence of the 21 January 1999 robbery of
Carolina Telco Credit Union and the circumstances relating to
defendant's capture would also be admitted under Rule 403.
Therefore, when read in context, it is clear the language to which
defendant points was nothing more than a slip of the tongue on the
part of the trial court. Although the evidence was necessarily
prejudicial, we conclude that the trial court correctly concluded
that the probative value of the evidence was not substantially
outweighed by its risk of unfair prejudice. Therefore, the trial
court did not abuse its discretion in admitting the evidence. Defendant next argues that the trial court erred in denying
his motion to dismiss the charge of robbery with a dangerous weapon
in 99CRS63110, the 21 December 1998 armed robbery of Bonnie Driver
at the Summit Credit Union. Again, we disagree.
“In reviewing the denial of a defendant's motion to dismiss,
this Court determines only whether the evidence adduced at trial,
when taken in the light most favorable to the State, was sufficient
to allow a rational juror to find defendant guilty beyond a
reasonable doubt on each essential element of the crime charged.”
State v. Cooper, 138 N.C. App. 495, 497, 530 S.E.2d 73, 75, aff'd
per curiam, 353 N.C. 260, 538 S.E.2d 912 (2000). The State must be
given the benefit of every favorable inference to be drawn from the
evidence. Id. Contradictions and discrepancies must be resolved
in favor of the State. State v. Lucas, 353 N.C. 568, 581, 548
S.E.2d 712, 721 (2001).
To obtain a conviction of robbery with a dangerous weapon, the
State must show that defendant (1) unlawfully took or attempted 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. Hartman, 344 N.C. 445, 473, 476 S.E.2d 328,
344 (1996), cert. denied, 520 U.S. 1201, 137 L. Ed. 2d 708 (1997).
The gravamen of the offense is force or intimidation along with the
use or threatened use of a firearm. Hartman, 344 N.C. at 473, 476
S.E.2d at 344. “'When a person commits a robbery by the use or
threatened use of an implement which appears to be a firearm orother dangerous weapon, the law presumes, in the absence of any
evidence to the contrary, that the instrument is what his conduct
represents it to be -- an implement endangering or threatening the
life of the person being robbed.'” State v. Duncan, 136 N.C. App.
515, 519, 524 S.E.2d 808, 811 (2000)(quoting State v. Joyner, 312
N.C. 779, 782, 324 S.E.2d 841, 844 (1985)).
The evidence in the light most favorable to the State tends to
show that defendant took a certain sum of money from Bonnie Driver
on 21 December 1998 and that he brandished an instrument that
appeared to be a gun. Therefore, defendant's conduct during the
December 1998 robbery supports the legal presumption that the
instrument he used was indeed a firearm. Driver's testimony that
she was unsure of whether or not the gun was real and that she was
more shocked than frightened during the robbery does not negate the
presumption that Driver's life was indeed endangered or threatened;
especially in light of the testimony regarding defendant's use of
a gun during the other robberies and the recovery of a firearm
fitting Driver's description upon defendant's arrest. We conclude
that because there existed sufficient evidence from which a
rational fact-finder could determine that defendant committed the
offense charged, the trial court properly denied defendant's motion
to dismiss.
Defendant's final argument on appeal is that the trial court
erred in denying his motion to dismiss the charge of felonious
possession of a stolen motor vehicle in 99CRS13. Defendant
contends, and the State concedes, that there was not sufficientevidence presented to prove the value of the vehicle was more than
$1,000, so as to support the conviction. As a consequence,
defendant's conviction of felonious possession of stolen goods in
99CRS13 must be vacated. Further, this matter must be remanded to
the superior court for entry of a judgment of guilty of misdemeanor
possession of stolen property and re-sentencing, accordingly. As
to the remaining convictions, we hold that defendant received a
fair trial, free from prejudicial error.
Vacated and remanded in part; no error in part.
Judges McCULLOUGH and HUDSON concur.
Report per Rule 30(e).
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