STATE OF NORTH CAROLINA
v. Guilford County
Nos. 98 CRS 96818-19;
KELVIN JEVON WORTHEY 96821-26; 99731
Attorney General Roy Cooper, by Assistant Attorney General
Jane Ammons Gilchrist, for the State.
Joseph E. Zeszotarski, Jr. for defendant-appellant.
EAGLES, Chief Judge.
On 4 January 1999, the Guilford County grand jury indicted
defendant on eight counts of robbery with a dangerous weapon and
two counts of attempted robbery with a dangerous weapon. A jury
convicted defendant on 27 May 1999 of six counts of robbery with a
dangerous weapon and three counts of attempted robbery with a
dangerous weapon. The trial court consolidated the convictions
into three judgments and imposed consecutive sentences with a
combined term of 164 to 226 months imprisonment. From the trial
court's judgments, defendant appeals.
At trial, the State introduced evidence tending to show the
following: Dwayne Comer testified that on 28 October 1998,defendant came to his apartment shortly after 8:00 p.m. At that
time, they made a plan to “[g]o out and rob somebody.” Defendant
drove them to a truck stop in Greensboro. Defendant and Comer each
had a gun. Both men got out at the truck stop, and Comer pointed
a gun at a person leaving the store. When the person ran back into
the store, defendant and Comer left in defendant's car. Before it
was offered, defendant objected to Comer's testimony as to the
preceding offense. The trial court overruled the objection after
a bench conference. Upon returning to Comer's apartment, they
ordered some food to be delivered to the hotel located behind
Comer's apartment building. They walked through a wooded area to
the hotel and Comer pointed a gun at the delivery man and demanded
the food and the money. Defendant pointed a gun at the man and
told Comer to shoot him when the man hesitated in handing over the
food and money. Comer and defendant then ran back to Comer's
apartment and ate the food.
Comer next testified that defendant drove with him until they
spotted someone to rob on Fairfax Street. After defendant parked
around the corner, Comer jumped out of the car and approached the
man. Comer took the man's wallet and money at gunpoint, then ran
back to defendant's car and divided the money with defendant.
Defendant next drove to Spring Garden Street, where he and Comer
spotted two more victims. Defendant parked on a corner and Comer
approached the two men and robbed them at gunpoint. Comer returned
to the car and split the money with defendant. Defendant and Comer then rode around the block to an apartment
complex. Comer got out of defendant's car and approached a man
sitting in a car. He robbed the man at gunpoint and ran back to
defendant's car. Defendant next parked around the corner from a
van parked at a bar near Spring Garden Street. Comer again got out
of the car, approached a man in the van and robbed him at gunpoint.
Defendant and Comer then followed a pizza delivery man to a hotel.
After defendant parked behind the hotel, Comer accosted the pizza
delivery man at gunpoint and robbed him. Comer then returned to
defendant's car and divided the money with defendant. At trial,
defendant requested a bench conference before Comer testified as to
the robbery of the pizza delivery man. The record does not show
whether defendant objected to the testimony, and if so, what the
trial court's ruling was on the objection.
Defendant next parked near an apartment complex on Spring
Garden Street. Comer got out of the car and robbed a man. He then
unsuccessfully attempted to rob two women. Comer returned to the
car and decided to go home. As defendant drove away, a police
officer began following the car. Defendant pulled into a gas
station at 11:55 p.m. and Comer ran from the car. The police
officer took defendant into custody. Another officer pursued and
arrested Comer at approximately midnight. Officers recovered
$227.12 and two guns from Comer. Comer pled guilty pursuant to a
plea arrangement, agreed to testify against defendant, and received
a sentence of 153 to 213 months imprisonment. Defendant made a motion to dismiss the charges at the close of
the State's evidence due to insufficiency of the evidence. The
trial court dismissed one charge and denied the remainder of the
motion. Defendant then presented evidence which tended to
contradict Comer's testimony that he and defendant had been in a
billiard hall earlier on the date in question. He also presented
evidence that his car differed from a victim's description of the
car involved in the robberies. Defendant renewed his motion to
dismiss at the close of all the evidence and the trial court again
denied the motion.
During the charge conference, the trial court granted defense
counsel's request that a limiting instruction on the Rule 404(b)
evidence be given. The trial court reconsidered and reversed its
ruling on the 404(b) instruction after a recess. Defense counsel
did not object to the decision either then or after the trial court
had completed its instructions to the jury. After the jury
returned its verdicts, the trial court sentenced defendant.
Defendant first contends the trial court erred by admitting
evidence of uncharged robberies under N.C.R. Evid. 404(b) without
providing appropriate limiting instructions. He argues evidence of
the uncharged robberies was inadmissible because those offenses
lacked sufficient similarities and temporal proximity to the
charged offenses. Defendant's argument is not persuasive.
“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 otherpurposes, such as proof of . . . intent, preparation, [or] plan
. . . .” G.S. § 8C-1, Rule 404(b)(2001). Rule 404(b) is a
general rule of inclusion of relevant evidence
of other crimes, wrongs or acts by a
defendant, subject to but one exception
requiring its exclusion if its only probative
value is to show that the defendant has the
propensity or disposition to commit an offense
of the nature of the crime charged.
State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990),
cert. denied, 421 S.E.2d 360 (1992)(emphasis in original). Two
additional constraints upon the admissibility of such evidence
under Rule 404(b) are the similarity and temporal proximity of the
offenses. State v. Lynch, 334 N.C. 402, 412, 432 S.E.2d 349, 354
(1993).
All of the charged and uncharged offenses occurred in
Greensboro within a four-hour time period. Only defendant and
Comer were involved in the commission of the offenses and at least
one firearm was involved in each offense. Defendant transported
Comer by automobile to all of his victims except for one and Comer
accosted each of the victims at gunpoint. Given the similarity of
the two uncharged offenses and the short time frame in which all of
the offenses occurred, the trial court properly concluded that Rule
404(b) did not preclude admission of this evidence for the purpose
of showing the “intent, preparation, [or] plan” of the two men to
rob individuals at gunpoint on the evening of 28 October 1998.
This assignment of error is overruled.
In his second argument, defendant contends the trial court
erred by refusing to give a limiting instruction to the jury on theRule 404(b) evidence. He argues the omission requires a new trial.
Defendant's argument is not persuasive.
As an initial matter, defendant did not request a limiting
instruction when the 404(b) evidence was presented during trial.
State v. Stager, 329 N.C. 278, 310, 406 S.E.2d 876, 894 (1991).
Additionally, we note that the trial court initially agreed to give
the limiting instruction. However, when court reconvened after the
lunch recess, the court informed the parties that the instruction
would not be given. Defendant did not object either when the trial
court reversed its initial ruling on the requested jury instruction
or when the trial court gave counsel the opportunity to do so after
the jury instruction was given. He has therefore failed to
preserve this assignment of error. See N.C.R. App. P. 10(b)(2).
Nor has defendant “specifically and distinctly contended” that the
trial court's action amounted to plain error. See N.C.R. App.
10(c)(4). This assignment of error is therefore overruled.
Defendant next contends the trial court erred by denying his
motions to dismiss the charges for insufficiency of the evidence
which he made at the close of the State's evidence and at the close
of all the evidence. He argues that the testimony of Comer, his
wife and a witness to one of the robberies was not credible.
Defendant's argument is not persuasive.
By introducing evidence after the State rested its case and
the trial court had denied his motion to dismiss, defendant's
“motion for dismissal . . . made at the close of State's evidence
is waived. Such a waiver precludes the defendant from urging thedenial of such motion as a ground for appeal.” N.C.R. App. P.
10(b)(3). In addressing defendant's motion to dismiss made at the
close of all the evidence, the trial court was to consider the
evidence in the light most favorable to the State. State v. Davis,
325 N.C. 693, 696, 386 S.E.2d 187, 189 (1989). “The State is
entitled to every reasonable inference which can be drawn from the
evidence presented,” and all contradictions and discrepancies are
resolved in the State's favor. Id. “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).
The essential elements of robbery with a dangerous weapon
under G.S. § 14-87 (2001) are: “(1) the unlawful taking or
attempted taking of personal property from another, (2) the
possession, use or threatened use of firearms or other dangerous
weapon, implement or means, and (3) danger or threat to the life of
the victim.” State v. Giles, 83 N.C. App. 487, 490, 350 S.E.2d
868, 870 (1986), disc. rev. denied, 319 N.C. 460, 356 S.E.2d 8
(1987). In addition,
[o]ne who procures or commands another to
commit a felony, accompanies the actual
perpetrator to the vicinity of the offense
and, with the knowledge of the actual
perpetrator, remains in that vicinity for the
purpose of aiding and abetting in the offense
and sufficiently close to the scene of the
offense to render aid in its commission, if
needed, or to provide a means by which the
actual perpetrator may get away from the sceneupon the completion of the offense, is a
principal in the second degree and equally
liable with the actual perpetrator.
State v. Price, 280 N.C. 154, 158, 184 S.E.2d 866, 869
(1971)(citing State v. Bell, 270 N.C. 25, 153 S.E.2d 741 (1967)).
When viewed in the light most favorable to the State, the
State presented sufficient evidence to support a jury finding that
defendant was driving the car at the time the robberies were
committed, that he was acting in harmony with Comer pursuant to a
common plan or purpose to rob the various individuals at gunpoint,
and that he accompanied Comer to the vicinity of the offenses and
provided a means by which Comer could escape upon the completion of
the offenses. Accordingly, the trial court did not err by denying
defendant's motion to dismiss the charges and by submitting the
charges to the jury.
Defendant failed to set out his remaining assignment of error
in his brief. Because he has neither cited any authority nor
stated any reason or argument in support of that assignment of
error, it is deemed abandoned. N.C.R. App. P. 28(b)(5).
No error.
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).
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