State v Noriega, (02-159) 06/03/2003

Appeal by defendant from judgments entered 14 June 2001 by Judge Zoro J. Guice, Jr., in Buncombe County Superior Court. Heard in the Court of Appeals 7 October 2002.

Attorney General Roy Cooper, by Assistant Attorney General Daniel S. Johnson, for the State.

Michael E. Casterline for defendant appellant.

McCULLOUGH, Judge.

    Defendant German Ernesto Noriega was tried before a jury at the 11 June 2001 Session of Buncombe County Superior Court after being indicted on two counts of robbery with a dangerous weapon and one count of conspiracy to commit robbery with a dangerous weapon. The State's evidence showed that on 15 July 1998, Catherine Porter, the Assistant Manager of the Ingles Grocery Store on Leicester Highway in Asheville, North Carolina, drove her vehicle to the First Citizens Bank across the road from that store. As she prepared to exit her vehicle and deposit the store receipts, a maroon vehicle arrived and blocked her car in. A man jumped out of the maroon vehicle, pointed a gun at Ms. Porter, ordered her to get out of her vehicle and said, “Ma'am, give me the money.” As Ms.Porter exited her vehicle, the man pushed past her, seated himself in the driver's seat of the vehicle, and told Ms. Porter to get into the passenger seat. Ms. Porter ran into the bank and told the tellers she had been robbed. By the time the police arrived, defendant had driven away in Ms. Porter's car. Ms. Porter subsequently recovered her automobile, which had been abandoned a short distance away on a service road behind the old Erwin High School.
    Christopher Lawing testified for the State that defendant solicited him to assist in robbing the Ingles store on Leicester Highway. He borrowed his sister's maroon Ford Probe and drove defendant to the bank. Defendant, armed with Lawing's father's Glock nine-millimeter pistol, exited the vehicle and intercepted Catherine Porter, whom Lawing knew from having formerly worked at Ingles, as she prepared to make a deposit. Defendant took Porter's car and abandoned it at the old Erwin High School. Lawing picked defendant up at the school. The two of them split the cash contained in the deposit bag. Lawing burned the receipts and other non-cash items contained in the deposit bag.
    After a voir dire hearing, the trial court allowed evidence of two subsequent robberies committed by defendant to be admitted at trial. The first of these concerned the 15 December 1999 robbery of another Ingles store, located on Haywood Road in Asheville. Defendant's accomplice in that robbery, Antonio Mejias, testified that defendant solicited him to assist with the robbery. The two of them stole a van from the parking lot of Mission Hospital, droveto the Ingles store, and intercepted two store employees as they prepared to make a bank deposit at the bank across the road from the store. Armed with a Glock nine-millimeter pistol and wearing latex gloves and a mask, defendant jumped out of the van and ordered the men to give him the deposit bag. One of the men dropped the bag to the ground. Defendant grabbed the bag and jumped back into the van. After leaving the scene of the robbery, they abandoned the stolen van at the end of a dead-end street.
    Mejias testified he also assisted defendant with a second robbery at Advance Auto Parts Store on 5 February 2000. At defendant's command, Mejias drove defendant to the store. Both men exited the vehicle and entered the store. Mejias put a gun to the store manager's head, and then he and defendant tied the manager up. They took the money from the store, stole the manager's truck, and split the cash. The men abandoned the truck at a hotel. Mejias subsequently buried the non-cash proceeds and other items from the Ingles and Advance Auto Parts robberies at a spot off the Blue Ridge Parkway.
    The State presented a total of nine witnesses, then rested. Defendant moved two exhibits into evidence and published them to the jury, but presented no witnesses for examination. Defendant renewed his prior motion to dismiss one of the two robbery charges against him, but the motion was denied. After deliberating, the jury found defendant guilty of two counts of robbery with a dangerous weapon and one count of conspiracy to commit robbery with a dangerous weapon. The trial court sentenced defendant to consecutive termsof 146-185 months and 58-79 months. Defendant gave notice of appeal in open court immediately after sentencing.
    On appeal, defendant brings forth two assignments of error. Defendant first contends the trial court committed plain error by admitting evidence of the two subsequent robberies against him. He argues the other robberies were too remote in time and not sufficiently similar to have probative value. We do not agree.
    N.C. Gen. Stat. § 8C-1, Rule 404(b) (2001) provides:
    Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.

Rule 404(b) is now generally recognized as a rule of inclusion of relevant evidence of other crimes, wrongs or acts of a defendant, subject to the one exception requiring exclusion of the evidence if its only probative value is to show that the defendant has the propensity to commit a crime of the nature being tried. State v. Coffey, 326 N.C. 268, 278, 389 S.E.2d 48, 54 (1990). For evidence of other crimes to be admissible under Rule 404(b), it is not necessary that the crimes share unique or bizarre similarities; the evidence is admissible if the similarities between the incidents are such that they support a reasonable inference that the same person committed both the earlier and later acts. State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 891 (1991). Remoteness in time between the incidents generally affects the weight to be given the evidence, not its admissibility. Id. at 307, 406 S.E.2d at 893.    Upon review of the evidence, we conclude the robberies share the following common or similar characteristics to permit their admission under Rule 404(b): (1) defendant masterminded all three robberies; (2) defendant coaxed another male person into assisting him with the commission of the three crimes; (3) latex gloves were worn by the perpetrators in all three offenses; (4) defendant wore disguises in all three robberies; (5) the same weapon was used in all three robberies; (6) defendant had conducted surveillance of each robbery target beforehand to learn procedures and patterns; (7) all three robbery sites were in the same vicinity of Asheville; (8) vehicles were stolen and abandoned in each incident; and (9) the non-cash proceeds were disposed of either by burning or by burial. All three offenses occurred within an eighteen-month window of time. Due to the presence of these similarities, we cannot say the trial court erred by admitting the evidence at trial. Accordingly, defendant's first assignment of error is overruled.
    Defendant also contends he was denied effective assistance of counsel because his attorney did not renew his objection to the admission of evidence of other crimes at the time the evidence was received. Again, we disagree. To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) counsel made errors and (2) counsel's errors were so serious as to deprive the defendant of a fair trial, one whose result is reliable. State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985). The defendant is not entitled to relief unless the record shows a reasonable probability exists that a different verdict would have been reached in theabsence of counsel's deficient performance. Id. at 563, 324 S.E.2d at 249. A strong presumption is indulged that counsel's conduct falls within the range of competent assistance. State v. Mason, 337 N.C. 165, 177, 446 S.E.2d 58, 65 (1994).
    Having concluded that the trial court did not err in admitting the evidence, we hold defendant was not denied effective assistance of counsel because of counsel's failure to renew a futile objection. Although counsel did not renew the objection, counsel conscientiously reminded the trial court to give the appropriate limiting instruction when the evidence was admitted. Defendant's final assignment of error is overruled.
    No error.
    Chief Judge EAGLES and Judge HUDSON concur.
    Report per Rule 30(e).

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