An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1266


Filed: 20 July 2004


         v.                        Wake County
                                No. 01 CRS 100830-38
                                    01 CRS 111431

    Appeal by defendant from judgments entered 8 November 2002 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 5 July 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Tina A. Krasner, for the State.

    Glover & Petersen, P.A., by Ann B. Petersen for defendant- appellant.

    STEELMAN, Judge.

    Defendant was convicted of three counts of robbery with a dangerous weapon, four counts of second degree kidnapping, and one count of first degree sexual offense. He was sentenced to prison terms of a minimum of 288 months and a maximum of 355 months for first degree sexual offense, a minimum of 77 months and a maximum of 102 months for each count of robbery with a dangerous weapon, and a minimum of 29 months and a maximum of 44 months for each count of second degree kidnapping, all sentences to run consecutively.
    The State presented evidence tending to show that on 15 October 2001, three men entered the Pizza Hut restaurant located at4450 Creedmoor Road in Raleigh. Paris Nicole Washington, who was working as the shift leader, testified that one of the men, whom she identified as defendant, pointed a silver gun to her face and asked where the money was kept. Washington pointed to the cash register and safe and threw the register keys to him. Defendant took Washington to the back of the restaurant, threw her on the floor, and bound her with duct tape. Two other employees and two customers were also threatened, assaulted and restrained with duct tape. From the back room Washington heard the voice of her brother.
    Washington initially lied to the police about knowing the identities of the perpetrators, some of whom had been her houseguests from Philadelphia since Sunday morning, 14 October 2001. She eventually identified them as the defendant, her brother Eric Wright, Darrell Smith (known to Washington as “Dees”), and Sterling Jones. After the incident the perpetrators returned to her apartment and stayed until Wednesday morning, October 17, when they departed for Philadelphia because defendant's father had died. Defendant wore a football jersey the entire time he stayed at her apartment. Washington could not remember the number on the jersey.
    Ginger Smith Wendt testified that on the evening of 15 October 2001 she accompanied Paul Pagano to the Pizza Hut to pick up a pizza. As she waited outside in the car, Pagano came running out of the restaurant followed by a man holding a gun. The gunman, whom she identified as defendant, pulled her out of the car and forced her and Pagano to go into the restaurant. Defendant removedher jewelry and proceeded to assault her by placing his hand into her pants and penetrating her private parts. Defendant bound her with duct tape and placed her in a room with Washington.
    Pagano testified that he drove to the Pizza Hut with Wendt to pick up a pizza he had ordered. As he stood at the counter he noticed a female employee laying on the floor and a man binding her. He realized a crime was in progress and he attempted to flee. He ran out the door, followed by a man holding a gun. Both Pagano and Wendt were then forced to go back into the restaurant. The man struck him with the gun and forced him to the back of the restaurant, where he saw an employee bound with duct tape. The man knocked him to the floor, kicked him, and bound him with duct tape. A few minutes later he was ordered to spread his legs. Pagano complied and one of the men kicked him in the groin. Pagano identified the man who had the gun as defendant. The men took his wallet.
    Greg Tobierre, an employee of Pizza Hut, testified that he was vacuuming the floor when a man pointing a gun approached him and pulled him to the back of the restaurant. The man hit him and knocked him to the floor. Another man held him down and beat him. The men took his ring and the tip money he had earned that night, about $12.00. They bound his hands, feet and face with duct tape and threw him in the freezer.
    Sterling Jones was called as a witness for the State and testified that he was involved in a romantic relationship with Washington in early October 2001. He went to Washington'sapartment and met her brother, who was visiting from Philadelphia, together with three other men, including defendant. As he socialized with Washington's visitors on 15 October 2001, the men talked about robbing the Pizza Hut restaurant where Washington worked in order to obtain money to finance their trip back to Philadelphia. Jones drove defendant and two other men, including Washington's brother, to the Pizza Hut. Jones waited in the car while the other three men entered the restaurant. About five minutes after the men entered the restaurant, a couple arrived in a car and entered the restaurant. Shortly thereafter the couple exited the restaurant followed by defendant, who had a gun in his hand and forced them back into the restaurant. About fifteen minutes later, his passengers returned to the vehicle. As they rode back to Washington's apartment defendant made a statement indicating he had digitally penetrated one of the female victims.
    Jones also testified that on Wednesday, 17 October 2001, he accompanied defendant, Eric Wright, and “Dees” to The Finish Line store located in Tower Shopping Center in Raleigh for the purpose of robbing the store. The men tried on clothes and shoes until Eric Wright gave the signal to begin the robbery. Defendant and Jones followed a store employee into a back room. Defendant ordered the employee to get on the floor. Jones bound the employee with duct tape. Either defendant or “Dees” brought the other store employee to the back and Jones also bound him with duct tape. As they exited the store, Jones took a coat and boots. Jones entered the car with the rest of the men and rode with themto Philadelphia. Jones subsequently viewed a videotape recorded by a surveillance camera of a neighboring store around noon on 17 October 2001. He identified four men leaving The Finish Line store and walking to a car as defendant, Eric Wright, “Dees”, and himself. He specifically identified defendant as the person depicted in the videotape wearing a football jersey bearing the number “27.”
    Dustin Anderson, general manager of The Finish Line store in Tower Shopping Center in Raleigh, testified that about noon on 17 October 2001, a group of four men came into the store asking to try on shoes and clothing. The other employee working in the store went to the back room to get shoes for one of the men. The men brought clothing to the register. As Anderson rang up the sale, he felt a gun against the side of his head. After forcing Anderson to open the cash register and to give them his wallet and checkbook, the men took him into the back room, where he saw the other employee was being bound with duct tape. The men bound Anderson with duct tape and then left the store. The business card of a parole officer in Philadelphia was found on the floor. It was later determined that this was the card of “Dees'” probation officer. Defendant was subsequently arrested in Philadelphia.
    Defendant presented evidence of an alibi that he was in Philadelphia from 11 October 2001 through 19 October 2001 grieving over the death of his father, who passed away on 11 October 2001. Defendant's aunt and grandmother testified that they saw defendantin Philadelphia on the date of the robbery of the Pizza Hut in Raleigh.
    Defendant first contends that the court erred by admitting evidence of the robbery of The Finish Line store. He argues evidence of this robbery was not relevant to any issue in the robbery of the Pizza Hut. We disagree.
    Evidence is relevant if it has a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. N.C. Gen. Stat. § 8C-1, Rule 401 (2003). Evidence of other crimes, wrongs or acts is relevant and admissible under N.C. Gen. Stat. § 8C-1, Rule 404(b)(2003) if it is offered to show intent, preparation, plan, scheme or identity. For evidence of other crimes to be admissible for these purposes 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 as to 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). The decision whether or not to admit the evidence is within the discretion of the trial judge, whose decision will not be disturbed unless it is manifestly unsupported by reason. State v. Syriani, 333 N.C. 350, 379, 428 S.E.2d 118, 133, cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341 (1993).
    In admitting the evidence, the trial judge found that the two incidents were temporally proximate and sufficiently similar such that its probative value outweighed its prejudicial effect. Theincidents occurred within two days of each other and involved the same four perpetrators. In each incident, the robbers forced the victims into a back room and bound them with duct tape. One man, holding a gun, robbed a person at the cash register in each incident. Since defendant contended at trial that he was in Philadelphia at the time of the robbery in question, evidence suggesting he was present at a similar robbery in North Carolina two days later is evidence that supports the State's identification of defendant as a perpetrator in the instant case. We find no abuse of discretion.
    In his second assignment of error, defendant contends that the court erred by instructing the jury that it could consider evidence of flight as an admission or consciousness of guilt on the part of the defendant. We disagree.
    Defendant has not shown us where he objected to the instruction at trial and the record in this case is devoid of such an objection. Moreover, defendant has not alleged in this assignment of error that the court committed plain error. Appellate review of this issue is therefore unavailable to defendant. State v. Truesdale, 340 N.C. 229, 232-33, 456 S.E.2d 299, 301 (1995). This assignment of error is without merit.
    Defendant fails to argue his remaining assignments of error in his brief, and they are thus deemed abandoned. N.C.R. App. P. 28 (2003).
    Judges HUDSON and THORNBURG concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***