STATE OF NORTH CAROLINA
v.
MARKIE DEVON JONES
Attorney General Roy Cooper, by Assistant Attorney General
Grady L. Balentine, Jr., for the State.
John T. Hall for defendant appellant.
TIMMONS-GOODSON, Judge.
Markie Devon Jones (“defendant”) appeals from his conviction
entered upon a jury verdict finding him guilty of robbery with a
dangerous weapon. For the reasons stated herein, we find no error
by the trial court.
The State presented evidence at trial tending to show the
following: On 16 May 2000, Jeremy Bowser (“Bowser”) was working at
a convenience store located in Raleigh, North Carolina. At
approximately 2:30 a.m., defendant entered the store and asked
Bowser the location of the bathroom. After using the bathroom,
defendant left the store. A few minutes later, two African-
American men wearing masks entered the store and approached Bowser.
One of the men held a gun, while the second intruder accompanied
Bowser behind the store counter and ordered him to empty the cashregister.
After Bowser emptied the cash register, the robbers moved
Bowser to the back of the store and inquired about the store's
surveillance videotapes. Bowser explained that he had no access to
the surveillance videotapes because they were locked in a box and
he did not have the key. While they were in the back of the store,
the front door alert sounded, indicating that someone had entered
the store. One of the men put the gun to Bowser's head and ordered
him to lie down on the floor. While Bowser lay on the floor, his
cellular telephone rang. The men then took Bowser's telephone,
surveyed the store to ensure that no one was watching them, and
exited the store. Bowser immediately summoned law enforcement
officers to the scene.
Officer V.C. Sjostedt of the Raleigh Police Department
testified that he responded to an alert about the convenience store
robbery, which included a brief description of the suspects as
being two black males. As he drove toward the store, Officer
Sjostedt observed an approaching vehicle driving in excess of the
speed limit. Officer Sjostedt followed the vehicle, and it slowed
down considerably. Following the vehicle, Officer Sjostedt
observed two individuals in the front seat and one in the rear
seat. One of the occupants of the vehicle looked back several
times, and another occupant held something over his head. Officer
Sjostedt believed the occupants to be three African-American males.
Officer Sjostedt signaled the vehicle to stop by activating
his emergency equipment. Once the vehicle pulled over, OfficerSjostedt requested additional law enforcement assistance when the
passenger in the rear seat began making movements Officer Sjostedt
considered to be suspicious. Utilizing the public address system
on his patrol car, Officer Sjostedt ordered the occupants of the
vehicle to step out of the car and place their hands above their
heads. Officer Sjostedt observed the rear seat occupant “doing
something under the seat and behind the right front passenger
seat,” and he repeated the command. Defendant, the driver of the
vehicle, was the first person to step out of the car.
Upon searching the vehicle, law enforcement officers recovered
an automatic pistol, as well as a carton of cigarettes bearing the
specific markings of the convenience store that had been robbed.
When officers brought Bowser to the scene of the traffic stop, he
identified defendant as the man who entered the store just prior to
the robbery, and the other two passengers, Gary Whitley and
Theodore Stroud, as the two men who carried out the robbery. After
Bowser identified the three men, one of the arresting officers
dialed Bowser's cellular telephone number, and the telephone rang
from inside defendant's vehicle.
At the close of the evidence, the jury found defendant guilty
of robbery with a dangerous weapon, and the trial court sentenced
him to a minimum term of eighty-four months' imprisonment and a
maximum term of 110 months. Defendant appeals.
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Defendant presents two assignments of error on appeal, arguing
that the trial court erred by (1) allowing the State to introduceevidence gathered pursuant to the traffic stop, and (2) denying
defendant's motion to dismiss. We find no error by the trial
court.
Defendant first argues that the trial court erred by
overruling his objection to the admission of evidence gathered at
the traffic stop. Defendant contends that the police lacked a
reasonable and articulable suspicion to justify stopping the
vehicle, and that the evidence was thus unlawfully seized. Section
15A-974 of the North Carolina General Statutes provides for the
suppression of evidence if the exclusion of the evidence “is
required by the Constitution of the United States or the
Constitution of the State of North Carolina.” N.C. Gen. Stat. §
15A-974 (2001). “The exclusive method of challenging the
admissibility of evidence upon the grounds specified in G.S.
15A-974 is a motion to suppress evidence which complies with the
procedural requirements of G.S. § 15A-971 et seq.” State v.
Conard, 54 N.C. App. 243, 244, 282 S.E.2d 501, 503 (1981); see also
N.C. Gen. Stat. § 15A-979(d) (2001) (stating that “[a] motion to
suppress evidence made pursuant to this Article is the exclusive
method of challenging the admissibility of evidence upon the
grounds specified in G.S. 15A-974”); State v. Joyner, 54 N.C. App.
129, 132, 282 S.E.2d 520, 522 (1981), disc. review denied, 304 N.C.
730, 287 S.E.2d 903 (1982); State v. Drakeford, 37 N.C. App. 340,
345, 246 S.E.2d 55, 59 (1978) (same). “The burden is on the
defendant to demonstrate that he has made his motion to suppress in
compliance with the procedural requirements of G.S. § 15A-971 etseq.; failure to carry that burden waives the right to challenge
evidence on constitutional grounds.” Conard, 54 N.C. App. at 245,
282 S.E.2d at 503.
In the instant case, defendant objected at trial to the
admission of the evidence, citing lack of reasonable suspicion.
“As a general rule, motions to suppress must be made before trial.”
State v. Satterfield, 300 N.C. 621, 625, 268 S.E.2d 510, 514
(1980); see also N.C. Gen. Stat. § 15A-975(a) (2001) (providing
that a defendant may move to suppress evidence “only prior to trial
unless the defendant did not have reasonable opportunity to make
the motion before trial or unless a motion to suppress is allowed
during trial under subsection (b) or (c)”).
A defendant may move to suppress evidence at
trial only if he demonstrates that he did not
have a reasonable opportunity to make the
motion before trial; or that the State did not
give him sufficient advance notice (twenty
working days) of its intention to use certain
types of evidence; or that additional facts
have been discovered after a pretrial
determination and denial of the motion which
could not have been discovered with reasonable
diligence before determination of the motion.
Satterfield, 300 N.C. at 625, 268 S.E.2d at 514 (emphasis added).
Defendant failed to bring himself within any of the exceptions to
the general rule. Defendant's stated reason for bringing the
motion at trial, rather than prior to trial, was that he “figured
that the evidence that the State had would be thicker than it was.”
Only when defendant discovered the alleged weakness of the State's
case did he object to admission of the evidence. A miscalculation
of the strength of the State's case is not a sufficient excuse forfailure to make a motion to suppress prior to trial. Thus,
defendant's objection at trial to the admissibility of the evidence
is without merit because the objection, treated as a motion to
suppress, was not timely made. See id. We therefore overrule this
assignment of error.
We next consider whether there was sufficient evidence to
support the charge of robbery with a dangerous weapon. Defendant
argues that the evidence was insufficient because it was
contradictory and inherently incredible. Defendant notes the
testimony of one of the co-defendants, Whitley, who initially told
police that defendant had not participated in the robbery. An
additional witness, Latoya Bethea, testified that Whitley told her
that the defendant was not involved in the robbery. Defendant also
introduced the testimony of Thomas Stroud, Sr., father of co-
defendant Thomas Stroud, Jr., who testified that his son told him
that defendant was not involved in the robbery. Defendant further
argues that, even under a theory of acting in concert, the evidence
does not support an inference that he had an intent to commit armed
robbery. Specifically, defendant contends there was insufficient
evidence that he knew Whitley had a firearm, and that he had the
intent to commit armed, rather than common law robbery. We are not
persuaded.
To survive a motion to dismiss, the State must present
substantial evidence of each essential element of the charged
offense. See State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432,
434 (1997). “'Substantial evidence is relevant evidence that areasonable mind might accept as adequate to support a conclusion.'”
Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C.
557, 564, 411 S.E.2d 592, 595 (1992)).
In considering a motion to dismiss, the trial
court must analyze the evidence in the light
most favorable to the State and give the State
the benefit of every reasonable inference from
the evidence. The trial court must also
resolve any contradictions in the evidence in
the State's favor. The trial court does not
weigh the evidence, consider evidence
unfavorable to the State, or determine any
witness' credibility.
State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001)
(citations omitted), cert. denied, _ U.S. _, 153 L. Ed. 2d 162
(2002).
In the case sub judice, defendant was convicted under the
theory that he acted in concert to commit the armed robbery. This
Court has stated that
[a] defendant may be convicted for a crime
committed by another if the State proves the
defendant acted “in concert” with the other to
commit the crime. . . . In addition to the
proof requirements associated with acting in
concert, if the crime is a specific intent
crime, such as robbery with a dangerous
weapon, the defendant, like the actual
perpetrator, must be shown to have the
requisite specific intent. “The specific
intent may be proved by evidence tending to
show that the specific intent crime was a part
of the common plan.”
State v. Robinson, 136 N.C. App. 520, 523, 524 S.E.2d 805, 807
(2000) (quoting State v. Blankenship, 337 N.C. 543, 558, 447 S.E.2d
727, 736, (1994), overruled on other grounds, State v. Barnes, 345
N.C. 184, 481 S.E.2d 44 (1997), cert. denied, 523 U.S. 1024, 140 L.
Ed. 2d 473 (1998)). Here, Whitley testified that he, defendant andStroud all participated in the planning and execution of the
robbery. Specifically, Whitley testified that he told defendant
and Stroud that he had a gun before the robbery. Whitley stated
that, when they arrived at the store, defendant entered first in
order to assess conditions within the store. Upon his return,
defendant informed Whitley and Stroud that Bowser was the only
person present in the store. Whitley and Stroud then placed
bandanas over their faces and went inside, while defendant waited
in the vehicle as the designated “getaway driver.” After Whitley
and Stroud left the store, defendant drove them away in his
vehicle. Although defendant's evidence tended to contradict
Whitley's testimony, contradictions and discrepancies must be
resolved by the jury and do not warrant dismissal. See State v.
Bumgarner, 147 N.C. App. 409, 412, 556 S.E.2d 324, 327-28 (2001).
In the light most favorable to the State, the evidence permits an
inference that defendant acted in concert to commit armed robbery.
Accordingly, we hold that the trial court did not err in denying
defendant's motion to dismiss, and we overrule this assignment of
error.
No error.
Judges TYSON and BRYANT concur.
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