An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-723

NORTH CAROLINA COURT OF APPEALS

Filed: 20 April 2004

STATE OF NORTH CAROLINA

v .                         Johnston County
                            No. 01 CRS 54304
O'KEVIS DEON RUSSELL

    Appeal by defendant from judgments entered 18 January 2002 by Judge Wiley F. Bowen in Superior Court, Johnston County. Heard in the Court of Appeals 16 March 2004.

    Attorney General Roy Cooper, by Assistant Attorney General W. Wallace Finlator, Jr., for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant appellant.

    WYNN, Judge.

    By this appeal, O'Kevis Deon Russell, Defendant, contends the trial court committed prejudicial error during his trial for robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon by (I) denying his motion to sever; (II) allowing introduction of certain evidence; (III) denying his motion to strike testimony; (IV) ordering him to pay $13,761.50 in restitution; and (V) denying his motion to dismiss. For the reasons stated herein, we conclude the trial court erred in ordering Defendant to pay $13,761.50 in restitution where insufficient evidence existed to support the finding. We otherwise find no error by the trial court.
    Following the trial court's denial of Defendant's motion tosever the trial from that of his co-defendant, Kion LeMaitre, the State presented evidence at trial tending to show the following: Ronnie Smith testified that, on the evening of 3 June 2001, he was working at a Piggly Wiggly grocery store in Smithfield, North Carolina. Greg Massengill, the store manager, and Tracy Price, a store cashier, were also present. Shortly before 10:00 p.m., Jeffrey Lackey, with whom Smith was acquainted, entered the store, remained a few minutes and left. Lackey wore a red hat.
    Approximately ten minutes after Lackey departed, Smith heard “a gun pop” and “a voice say 'everybody get down.'” Smith recognized the voice as that of Defendant's. Smith knew Defendant from riding on a school bus with him daily for two years, and from Defendant's weekly visits to the grocery store. Smith was standing behind a shelf located in the front of the store when he heard the gunfire and Defendant's voice coming from the direction of the store's south exit. At that time, Smith also observed “somebody come out in front of the door, go straight ahead. He was wearing a red hat.” From his vantage point behind the shelf, Smith observed Massengill and Price lying on the floor, but could not see Defendant. Smith heard Defendant “ask how many people were in the store” and Massengill answer “three.” Smith then ran to the rear of the store because “it sounded like I knew some of the people. And from what I saw, I knew one of them.” Smith returned to the front of the store after the intruders departed.
    Tracy Price, the store cashier, gave further testimony for the State. Price stated they were preparing to close when “two guyscame in the store, shot up in the loft.” Price described the first intruder as a stocky African-American male wearing dark clothing, a shirt with white numerals, and a stocking over his face. The second intruder, who carried the handgun, was a “kind of slim,” fairly tall, African-American male wearing a red baseball cap and a bandana over the lower part of his face. He “came in the store, asked who was the manager.” After Massengill identified himself as the manager, the second intruder ordered Price to lie on the floor, and Massengill to open the store's safe. The two men removed approximately twelve thousand dollars from the safe and left the store. In court, Price identified Defendant as the second intruder.
    Greg Massengill testified that after the robbers exited the store, he waited five seconds, then “got in [his] vehicle and proceeded to follow the two men around the corner.” Using his cellular telephone, Massengill contacted the Smithfield Police Department and continued to follow the men as he spoke on the telephone. As he rounded the corner, Massengill heard a gunshot. He observed two African-American men wearing dark clothing running across the street into an alley. Massengill circled the block and approached the alley from the opposite end, where he saw two men “coming up through the alley halfway through that block.” Massengill then drove past the alley, through an intersection, made a U-turn, and came back down the street towards the alley. As he did so, he noticed a dark-colored “small SUV type vehicle parked on the opposite side of the street, facing [his] direction, with thelights on as if the engine was still running.” The vehicle was “very similar to a PT Cruiser.” Massengill drove past the alley twice more, each time observing the men walking up the alley. The third time he passed the alley, Massengill did not see anyone in the alley. By that time, police officers had arrived and begun “setting up around the perimeter of the area looking for the two men.” Massengill relayed his information to one of the police officers at the scene and parked his vehicle nearby. As he did so, he noticed an African-American man wearing dark pants and a dark shirt with large white numerals on the back run across a street from the direction of some houses adjoining the alley. Massengill again telephoned the police. The police subsequently took into custody an African-American man wearing dark clothing and a black shirt with the numeral “96” in white on the back. In court, Massengill identified the man taken into custody as Kion LeMaitre, Defendant's co-defendant. Massengill also later identified Lackey as the individual in the store wearing a red hat shortly before the robbers entered. Massengill testified that the total amount of time that elapsed from when he left the store until the police took LeMaitre into custody was approximately four minutes.
    Smithfield Police Officer Richard Bryan Todd testified that as he assisted other law enforcement officers in setting up a perimeter around the alley, a dark-colored Chrysler-brand PT Cruiser model vehicle driven by a young African-American woman “pulled up and stopped beside [him].” Accompanying the woman was Jeffrey Lackey, whom Officer Todd recognized. At some point aftermidnight, Officer Todd stopped a vehicle matching a description given by his radio dispatch. The vehicle was a “greenish blue color Chrysler PT Cruiser” with a Pennsylvania license plate. There were four occupants in the vehicle, including Lackey and the young woman with whom Officer Todd had spoken earlier. Officer Todd also identified Defendant as the driver of the vehicle. Defendant wore a red bandana around his neck, a red baseball cap, and a white T-shirt “with a black fishnet type jersey shirt over it.” Officer Todd testified that the vehicle appeared to be the same one driven by the young woman earlier in the evening.
    Detective-Sergeant Walter A. Martin of the Smithfield Police Department testified when LeMaitre was taken into custody and provided to police officers a New York driver's license, he recognized LeMaitre as the same individual he had observed several days earlier riding as a passenger in a “greenish color PT Cruiser that had either New York or Pennsylvania plates on it.” The driver of the vehicle was Erica Austin. Upon realizing LeMaitre's connection to the PT Cruiser, Detective Martin issued an alert for the vehicle and subsequently identified the vehicle stopped by Officer Todd as the same vehicle he observed Austin and LeMaitre driving several days earlier. Detective Martin identified Lackey, Defendant, and Austin as occupants of the vehicle.
    Detective Martin identified three documents removed from the vehicle. Two of the documents were receipts for handguns bearing the name and identification card number of Kion LeMaitre. The third document was a rental car agreement for the vehicle issued toLeMaitre. Over the objection of defense counsel, Detective Martin also testified that the area around the Piggly Wiggly grocery store where the robbery occurred was “predominantly occupied by white residents.”
    The State presented further testimony by Detective Nathan Reed of the Johnston County Sheriff's Department. Detective Reed testified that, while responding to the call for assistance for the grocery store robbery, he was stopped by the driver of a “dark in color Chrysler PT Cruiser” bearing a Pennsylvania license plate. The young African-American woman driving the vehicle informed Detective Reed that she and her passenger, a young, African- American male, were “not from around here” and requested directions to a local school. Detective Reed identified the young woman as the same woman stopped by Officer Todd later that evening.
    Roxanne Parrish, the registrar at Smithfield-Selma High School, testified that Erica Austin began kindergarten at South Smithfield Primary school and continued to attend public school in Smithfield until eighth grade.
    At the conclusion of the State's evidence, Defendant moved to dismiss the charges against him, which motion the trial court denied. Following an overnight recess, Defendant's co-defendant, Kion LeMaitre, failed to appear in court. Defendant renewed his motion to sever, which the trial court again denied. The trial court instructed the jury that it should not hold LeMaitre's absence against him.
    Defendant presented testimony by his mother, Deborah Russell,who testified that Defendant lived with her, and that he was present at her home at 10:00 p.m. the evening of the robbery. Defendant left Russell's residence at midnight. Russell stated she was acquainted with Erica Austin and Jeffrey Lackey. During cross- examination, Russell verified that Defendant and Lackey were close friends, that Austin's grandmother was her godmother, and that Defendant had “been around” Austin.
    In rebuttal to Defendant's evidence, the State recalled Detective Martin, who testified that he spoke with Russell at the Smithfield Police Department shortly after the robbery. At that time, Russell informed Detective Martin that Defendant was at home with her the evening of the robbery, but that he left shortly after 8:30 p.m. Russell stated that “she had been told by someone that the robbery had actually happened about 8:30.” When Detective Martin informed Russell that the robbery had not occurred until 10:00 p.m., “she apologized [but] said that she still did not believe that her son robbed the place.”
    At the close of the evidence, Defendant renewed his motion to dismiss, which the trial court denied. The jury found Defendant guilty of robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. The trial court sentenced Defendant to a term of 103 months' minimum imprisonment and a maximum term of 133 months' imprisonment for the robbery with a dangerous weapon. Defendant also received a suspended sentence of twenty-seven to forty-two months' imprisonment for the conspiracy charge. Defendant appealed.    ______________________________________________________
    Defendant presents five assignments of error on appeal, arguing the trial court erred by (I) denying his motion to sever; (II) allowing the introduction of gun shop receipts and Austin's school records into evidence; (III) denying his motion to strike testimony concerning the racial demographics of south Smithfield; (IV) ordering him to pay $13,761.50 in restitution; and (V) denying his motion to dismiss. For the reasons stated herein, we conclude the trial court erred in ordering Defendant to pay $13,761.50 in restitution where the State presented insufficient evidence to support the finding. We otherwise uphold the judgments of the trial court.

I.             Motion to Sever
    Defendant first argues the trial court erred in denying his motion to sever his trial from his co-defendant, LeMaitre. Defendant contends that joinder subjected him to prejudicial evidence of LeMaitre's guilt that would have been inadmissible against him in a separate trial. Further, Defendant argues the jury likely considered LeMaitre's failure to appear in court as an indication of Defendant's guilt. We do not agree.
    Whether defendants should be tried jointly or separately is a decision within the sound discretion of the trial court and will not be disturbed on appeal absent a showing that joinder has deprived a defendant of a fair trial. State v. Evans, 346 N.C. 221, 232, 485 S.E.2d 271, 277 (1997), cert. denied, 522 U.S. 1057, 139 L. Ed. 2d 653 (1998). Joinder of defendants is appropriatewhere “each of the defendants is charged with accountability for each offense” or where the several offenses charged were (1) part of a common scheme or plan; (2) part of the same act or transaction; or (3) were so closely connected in time, place, and occasion that it would be difficult to separate proof of one charge from proof of the others. N.C. Gen. Stat. § 15A-926(b) (2003). Where the State seeks to hold two or more defendants accountable for the same crime or crimes, not only is joinder permissible under the statute, but “'public policy strongly compels consolidation as the rule rather than the exception.'” State v. Paige, 316 N.C. 630, 643, 343 S.E.2d 848, 857 (1986) (quoting State v. Nelson, 298 N.C. 573, 586, 260 S.E.2d 629, 639 (1979), cert. denied, 446 U.S. 929, 64 L. Ed. 2d 282 (1980)). Unless joinder of co-defendants results in the admission of evidence harmful to the defendant which would not have been admissible in a severed trial, the defendant is not prejudiced by the joinder. State v. Lowery, 318 N.C. 54, 61, 347 S.E.2d 729, 735 (1986).
    Defendant argues the State introduced evidence at trial that was inadmissible against him. For example, the State introduced into evidence receipts from a gun shop bearing LeMaitre's name and identification number, as well as Austin's school records. Defendant contends the introduction of such evidence irreparably prejudiced him, requiring severance. We disagree.
    Both Defendant and LeMaitre were charged with robbing the Piggly Wiggly grocery store. Because they were charged with committing the same offenses, joinder was appropriate under section15A-926(b). See N.C. Gen. Stat. § 15A-926(b). Defendant and LeMaitre were also charged with conspiring to rob the grocery store, together with Jeffrey Lackey and Erica Austin. At trial, Defendant was positively identified by Smith and Price as one of the robbers. Although the witnesses could not positively identify LeMaitre as the second robber, he was apprehended shortly after the robbery in close proximity to the grocery store, wearing clothing matching Price's description. The State presented substantial evidence of the connection between Defendant, LeMaitre, Austin and Lackey. Lackey was positively identified by Smith, Price and Massengill as the individual who entered the store shortly before the robbery. Several hours after the robbery, Officer Todd apprehended Defendant, Lackey, and Austin driving a PT Cruiser rented to LeMaitre. Austin and Lackey were observed near the Piggly Wiggly grocery store immediately after the robbery driving the same PT Cruiser. When she spoke with Detective Reed that evening, Austin was untruthful about her unfamiliarity with the area. “Evidence which tends to shed light on the events surrounding the commission of a crime is admissible.” State v. Weaver, 123 N.C. App. 276, 290, 473 S.E.2d 362, 370-71 (rejecting the defendant's contention that joinder was improper on the ground that some of the evidence was inadmissible against him), disc. review denied, cert. denied, 344 N.C. 636, 477 S.E.2d 53 (1996). Because the State was attempting to show Defendant conspired with LeMaitre, Austin and Lackey to rob the grocery store, the evidence of the gun shop receipts bearing LeMaitre's name and Austin'sschool records would have been admissible against Defendant at a separate trial, as such evidence tended to show that Defendant conspired with LeMaitre, Austin, and Lackey to rob the grocery store. See State v. Porter, 303 N.C. 680, 688-89, 281 S.E.2d 377, 383 (1980) (holding that joinder of co-defendants was proper where both defendants were charged with accountability for the same armed robbery and the evidence would have been admissible against both defendants at separate trials).
    We further reject Defendant's argument that the trial court should have instructed the jury not to hold LeMaitre's absence at the trial against Defendant, in addition to LeMaitre. Defendant failed to request such an instruction. Further, Defendant's defense was based on his alibi of being elsewhere when the crime was committed. If the jury believed Defendant's alibi, then LeMaitre's guilt or innocence, and his flight, were irrelevant to Defendant's case. Moreover, “[i]t would be unusual for all evidence at a joint trial to be admissible against both defendants, and we often rely on the common sense of the jury, aided by appropriate instructions of the trial judge, not to convict one defendant on the basis of evidence which relates only to the other.” Paige, 316 N.C. at 643, 343 S.E.2d at 857. The trial court here instructed the jury not to hold LeMaitre's absence against him. We must presume the jury followed the trial court's instruction. As noted by our Supreme Court, “[i]f we were convinced that juries were unable to separately evaluate the guilt or innocence of defendants tried jointly because of a tendency todetermine guilt by association at trial, we would never uphold joint trials of criminal defendants.” Lowery, 318 N.C. at 61, 347 S.E.2d at 735. We conclude the trial court did not abuse its discretion in joining Defendant's trial with that of LeMaitre's.
II. Introduction of Receipts and School Records
    By his second assignment of error, Defendant contends the trial court erred by allowing the State to introduce into evidence the receipts from the gun shop bearing LeMaitre's name and the school records of Erica Austin. We have already determined, however, that this evidence was admissible, as it tended to show that Defendant conspired with LeMaitre and Austin to commit the robbery. We therefore hold that this assignment of error is without merit.
III. Evidence of Racial Demographics
    Defendant next argues the trial court erred in overruling his objections to testimony by Detective Martin concerning the racial demographics of south Smithfield. Defendant contends the testimony was irrelevant and was “calculated to incite racial prejudice.” In support of his argument, Defendant cites State v. Diehl, 137 N.C. App. 541, 528 S.E.2d 613 (2000), reversed, 353 N.C. 433, 545 S.E.2d 185 (2001). In Diehl, this Court held the trial court abused its discretion by failing to declare a mistrial after the prosecutor gratuitously injected race into the proceeding during closing argument by referring to the jury as “twelve people good and true, twelve White jurors in Randolph County.” Id. at 545, 528 S.E.2d at 617. Defendant fails to note, however, that this holding wasreversed on appeal. Our Supreme Court, in reviewing the statements by the prosecutor concluded that, “[a]lthough the challenged portion of the prosecutor's closing argument is unsettling when read in vacuo, an examination of the context in which the comment was made reveals that the district attorney was pursuing a legitimate prosecutorial theory.” Diehl, 353 N.C. at 436, 545 S.E.2d at 187.
    Nonetheless, Defendant asserts that the question posed by the State “was a blatant appeal for a race based decision.” We recognize the apparent inference that the prosecutor sought to convey in eliciting testimony that Defendant, Lackey, and Austin, who are African-American, were apprehended in an area “predominantly occupied by white residents.” We, however, need not examine this testimony to determine whether the prosecutor was pursuing a legitimate prosecutorial theory in this case because any error in allowing this testimony was harmless. Indeed, given the strong evidence against Defendant, we conclude there is no reasonable possibility Detective Martin's testimony had any effect on the outcome of the trial. Accordingly, we find no prejudicial error in allowing this testimony.
IV. Restitution
    Defendant contends the trial court erred in ordering him to pay $13,761.50 in restitution in that the State presented insufficient evidence to support such a figure. We agree.
    Section 15A-1340.34 of the General Statutes authorizes the trial court to order restitution for “any injuries or damagesarising directly and proximately out of the offense committed by the defendant.” N.C. Gen. Stat. § 15A-1340.34(c) (2003). The amount of restitution recommended by the trial court, however, must be supported by evidence adduced at trial or at sentencing. State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995); State v. Daye, 78 N.C. App. 753, 756-57, 338 S.E.2d 557, 560, affirmed per curiam, 318 N.C. 502, 349 S.E.2d 576 (1986). “Even though recommendations of restitution are not binding, we see no reason to interpret the statutes of this State to allow judges to make specific recommendations that cannot be supported by the evidence before them.” Daye, 78 N.C. App. at 757, 338 S.E.2d at 560. Thus, “[r]egardless of whether restitution is ordered or recommended by the trial court, the amount must be supported by the evidence.” Id.
    In the case sub judice, the trial court inquired at sentencing whether there was any restitution involved in Defendant's case. The attorney for the State responded, “[t]he exact figure, in cash and checks, it's . . . $13,761.50.” The trial court then ordered Defendant to pay restitution in that amount. The only evidence regarding damages presented at trial, however, was Massengill's testimony that the robbers removed approximately $12,000.00 from the store safe. To the extent the trial court ordered restitution in excess of the amount supported by the evidence, the trial court erred. We therefore reverse that part of the trial court's order requiring Defendant to pay $13,761.50 in restitution and remand for resentencing.
V. Motion to Dismiss
    By his final assignment of error, Defendant argues the trial court erred in denying his motion to dismiss. Defendant contends there is insufficient evidence that he robbed or conspired to rob the Piggly Wiggly grocery store. We disagree.
    In ruling on a motion to dismiss, the trial court must determine whether the State has presented substantial evidence of each element of the offense charged and substantial evidence that the defendant is the perpetrator. State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998). Substantial evidence is “relevant evidence which a reasonable mind could accept as adequate to support a conclusion.” Id. The evidence must be evaluated in the light most favorable to the State, but evidence which raises only a conjecture or suspicion of guilt is insufficient to survive a motion to dismiss. Id.
    “The essential elements of robbery with a dangerous weapon are: (1) an unlawful taking of personal property from the person of another; (2) by use of a dangerous weapon; (3) whereby that person's life is threatened.” State v. Jackson, __ N.C. App. __, 588 S.E.2d 11, 14 (2003). “'A criminal conspiracy is an agreement between two or more persons to do an unlawful act.'” State v. Choppy, 141 N.C. App. 32, 39, 539 S.E.2d 44, 49 (2000) (quoting State v. Massey, 76 N.C. App. 660, 661, 334 S.E.2d 71, 72 (1985)), disc. review denied, 353 N.C. 384, 547 S.E.2d 817 (2001). The State may show conspiracy by circumstantial evidence of either an express agreement or an implied understanding. See id.     In the instant case, the State presented strong evidence from which the jury could find that Defendant robbed and conspired to rob the Piggly Wiggly grocery store. Both Smith and Price identified Defendant as one of the robbers. Defendant was apprehended several hours later in the vicinity of the robbery with Lackey and Austin. Smith, Price and Massengill identified Lackey as the individual who appeared in the store shortly before the robbery wearing a red hat. Defendant wore a red hat when apprehended. Lackey and Austin were observed by several police officers in close proximity to the grocery store immediately after it was robbed. They drove a vehicle belonging to LeMaitre, who was apprehended a few minutes after the robbery wearing clothing matching the description of the second robber given by Price. Receipts for weapons issued to LeMaitre were found in the vehicle. Although Austin attended school for approximately eight years in Smithfield, she told Detective Martin she was “not from around” Smithfield and was unfamiliar with the area. Defendant's alibi witness, Russell, told Detective Martin shortly after the robbery that Defendant was at home with her the evening of the robbery, but that he left shortly after 8:30 p.m. We conclude there was sufficient evidence from which the jury could find Defendant guilty of robbery and conspiracy to commit robbery.
    We conclude the trial court improperly ordered Defendant to pay restitution in excess of the evidence of damages presented at trial. We otherwise find no prejudicial error.
    No prejudicial error in part; reversed and remanded in partfor resentencing.
    Judges HUNTER and TYSON concur.
    Report per Rule 30(e).                 

*** Converted from WordPerfect ***