An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1614


Filed: 21 October 2003


    v.                            Guilford County
                                Nos. 98 CRS 96818-19;
KELVIN JEVON WORTHEY                96821-26; 99731

    Appeal by defendant from judgments entered 27 May 1999 by Judge Mark E. Klass in Guilford County Superior Court. Heard in the Court of Appeals 29 September 2003.

    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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