An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1391


Filed: 1 June 2004


     v.                        Pitt County
                            Nos.    02 CRS 5679, 54431

    Appeal by defendant from judgments dated 30 April 2003 by Judge Jerry R. Tillett in Pitt County Superior Court. Heard in the Court of Appeals 12 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Daniel D. Addison, for the State.

    Jarvis John Edgerton, IV, for defendant-appellant.

    BRYANT, Judge.

    Chaumon Marte Webb (defendant) appeals judgments dated 30 April 2003, entered consistent with his conviction of robbery with a dangerous weapon, attempted murder, and possession of a handgun by a convicted felon.
     At trial, the State's evidence tended to show that on the night of 10 March 2002, Michael McCotter used a nine-millimeter handgun to rob James Daniel Manning, the clerk at the SAK's Convenient Mart (SAK's) on State Highway 102 in Ayden, North Carolina. Wearing a ski mask or toboggan, McCotter entered SAK's, held the gun to Manning's head, and demanded money. When Manning ducked behind the counter, McCotter fired a single shot that missedManning's head by inches. McCotter exited SAK's with $959.00 from the cash drawer and a .32-caliber pistol belonging to the store's owner.
    On 12 April 2002, defendant dictated the following statement regarding the SAK's robbery to Major John W. Burrus of the Greene County Sheriff's Department:
        [Defendant] and Michael McCotter went to a store outside of Ayden on a highway going towards Washington. He ([defendant]) dropped off McCotter at a house no one lived in just down from the store, and McCotter went in with a silver 9 MM handgun and ski mask to rob the store. [Defendant] . . . waited at the driveway of the house and McCotter returned running a few minutes later with approximately $350.00. McCotter gave him ([defendant]) $100.00.

Defendant also stated that McCotter “had an old black revolver[,]” which he had given to Calvert Hart. However, McCotter did not tell defendant about the shooting in the store. The statement was signed by defendant, as witnessed by Major Burrus and a deputy sheriff.
    At trial, the State introduced evidence of a similar robbery committed by McCotter at 9:00 p.m. on 13 March 2002 at a Kash & Karry convenience store in Grifton, North Carolina, which is approximately five miles from Ayden. Wearing a ski mask, McCotter brandished a black or dark-colored revolver at the store clerk and demanded “all the money.” When the clerk had difficulty opening the cash register, McCotter fired the gun. McCotter took the money from the register and fled, running outside toward the back of the store. During his escape, McCotter shot out the driver's sidewindow of Pitt County Sheriff's Detective Johnny Craft's vehicle as he was pulling into the store's rear driveway. McCotter shot Detective Craft's vehicle a second time in the rear.
    Detective Craft took a written statement from defendant on 1 April 2002, in which he gave the following account of the Kash & Karry robbery:
        Kash & Karry, I know [McCotter] got out of the vehicle and said he'll be back. True I about knew what he was gonna to do, so I told him, and I quote, I don't know anything if you get caught for something. So when I heard shooting I left because I didn't want anything to do with it. True, I drove, . . . . He kept saying he was seeking or looking for crack and I was like he get the money; however, he did that's his business. He called me later that night and I went and got him. I didn't want to leave anybody out regardless what they did.

Police recovered a .32-caliber bullet from the inside of the Kash & Karry by the coffee machine, and a second .32-caliber bullet from Craft's vehicle. Police later found a box of .32-caliber bullets underneath the bed in defendant's apartment.
    Further, the State introduced evidence of two additional armed robberies of convenience stores which occurred in the area during the same time period. The first robbery took place at 8:45 p.m. on 25 February 2002, at the 264 Country Mart in Walstonburg, North Carolina. The second robbery occurred the following week at approximately 9:00 p.m. at the Creek Side Convenient Mart (Creek Side) in Pitt County. Defendant dictated statements to Major Burrus regarding these two robberies, claiming that on each occasion he drove McCotter to a location near the store and waitedwhile McCotter robbed the store using a black ski mask and a silver nine-millimeter handgun. Defendant further stated that McCotter gave him $150.00 after the 264 Country Mart robbery and $50.00 after the Creek Side robbery.
    In his testimony, defendant denied any involvement in the SAK's robbery and further denied giving statements to police regarding the incident, or the robberies at 264 Convenient Mart or at Creek Side. He, however, acknowledged giving Craft the statement concerning the Kash & Karry robbery. McCotter also testified for the defense, repudiating as untruthful his own statement to police in which he implicated defendant as the driver in the SAK's robbery.
    Defendant was found guilty of robbery with a dangerous weapon, attempted murder, possession of a handgun as a convicted felon, and assault with a deadly weapon. After arresting judgment on the assault with a deadly weapon conviction, the trial court sentenced defendant to three consecutive aggravated prison terms totaling 484 to 600 months. Defendant gave notice of appeal in open court.


The issues on appeal are whether: (I) defendant's convictions for attempted murder and robbery with a dangerous weapon must be vacated; (II) defendant's trial counsel rendered ineffective assistance in failing to make a motion to dismiss; and (III) the trial court erred in allowing into evidence details of another robbery.
    Defendant first claims that his convictions for attempted murder and robbery with a dangerous weapon must be vacated, absent sufficient evidence to show that he aided and abetted or acted in concert with McCotter in the SAK's robbery. Although defendant moved to dismiss the charges at the conclusion of the State's case in chief, however, he failed to renew his motion at the conclusion of all the evidence. Accordingly, defendant has waived appellate review of the sufficiency of the evidence. See State v. Stocks, 319 N.C. 437, 439, 355 S.E.2d 492, 493 (1987); N.C.R. App. P. 10(b)(3).
    Acknowledging that he failed to preserve the issue by renewing his motion to dismiss, defendant also seeks review for plain error pursuant to N.C.R. App. P. 10(c)(4). Plain error, however, may not be invoked to challenge the sufficiency of the evidence where a defendant has not renewed his motion to dismiss at the conclusion of all the evidence as required by N.C. R. App. P. 10(b)(3). See State v. Richardson, 341 N.C. 658, 676-77, 462 S.E.2d 492, 504 (1995).

    Defendant next claims his trial counsel rendered ineffective assistance in failing to make a motion to dismiss. Defendant did not include ineffective assistance of counsel as an assignment of error in the record on appeal. Therefore, this claim is not properly before this Court for review. State v. Lloyd, 89 N.C. App. 630, 638, 366 S.E.2d 912, 917 (1988).
    In the alternative, defendant asks this Court to consider hisineffective assistance of counsel claim as a motion for appropriate relief. A claim brought forward in a motion for appropriate relief will be procedurally barred if “[u]pon a previous appeal the defendant was in a position to adequately raise the ground or issue underlying the present motion but did not do so.” N.C.G.S. § 15A- 1419(a)(3) (2003). Ineffective assistance of counsel claims may be reviewed on direct appeal “when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.” State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001) (citations omitted), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). Inasmuch as defendant challenges only his counsel's failure to make a motion to dismiss at trial, a review of his claim requires no evidence or inquiry beyond the cold record. Accordingly, defendant's failure to assign error on direct appeal to counsel's alleged ineffectiveness bars him from now raising this claim in a motion for appropriate relief pursuant to N.C. Gen. Stat. § 15A- 1419(a)(3). Id. at 167, 557 S.E.2d at 525 (“[T]o avoid procedural default under N.C.G.S. § 15A-1419(a)(3), defendants should necessarily raise those [ineffective assistance of counsel] claims on direct appeal that are apparent from the record.”).
    To the extent defendant asks this Court to review the sufficiency of the evidence “in the interests of justice” pursuant to our authority under N.C.R. App. P. 2, we note that Manning's account of the SAK's robbery and defendant's confession to his roleas McCotter's driver was sufficient to support his convictions. “[O]ne may be convicted of aiding and abetting in the offense of robbery . . . if he provides 'a means by which the actual perpetrator may get away from the scene upon completion of the offense.'” State v. Musselwhite, 36 N.C. App. 430, 436, 245 S.E.2d 171, 175 (1978) (citation omitted). As the driver of the getaway vehicle and recipient of a portion of the robbery's proceeds, defendant was liable both for the armed robbery and the attempted murder committed by McCotter in the course thereof. See State v. Westbrook, 279 N.C. 18, 41-42, 181 S.E.2d 572, 586 (1971), death penalty vacated, 408 U.S. 939, 33 L. Ed. 2d 761 (1972).

    Defendant next argues the trial court erred in conducting a “mini-trial” regarding the Kash & Karry robbery and in allowing into evidence extraneous and prejudicial details of this incident in violation of N.C. Gen. Stat. § 8C-1, Rules 403 and 404(b). He cites as inflammatory and “excessive” certain testimony of Kash & Karry employee Waleid Maseitef, Detective Craft, bystander Jonathan Brooks, and Pitt County Sheriff's Detective Scott Pollard, which he avers was extraneous to any showing of his own knowledge of McCotter's actions or of any common scheme or modus operandi under Rule 404(b). Specifically, defendant points to testimony that McCotter fired shots at Detective Craft's vehicle as he fled the Kash & Karry store. Defendant insists that this evidence improperly inflamed the jury and induced the trial court to aggravate his sentences despite his minor role in the SAK'srobbery.
    Again, defendant did not assign error in the record on appeal to the admission of testimony by Maseitef, Detective Craft, Brooks's, or Detective Pollard. Defendant's assignments of error instead challenge only the admission of out-of-court statements by defendant and McCotter regarding the Kash & Karry robbery, as well as defendant's testimony on cross-examination that he had presented a false driver's license to police following the Kash & Karry robbery, as follows:
        5.     The Trial Court's admission into evidence of two alleged prior statements by defendant Webb; . . . .

        6.     The Trial Court's admission into evidence of two alleged prior statements by co- defendant McCotter; . . . .

        . . . .
        9.     The Trial Court's failure to exclude prior bad act evidence in the form of testimony regarding the fact defendant gave a false name.

Having failed to assign error to the testimony addressed in his appellant's brief, defendant has failed to preserve his argument for appellate review. State v. Hamilton, 351 N.C. 14, 22, 519 S.E.2d 514, 519 (1999) (“Our scope of appellate review is limited to those issues set out in the record on appeal.”).
    To the extent defendant challenges the admissibility of his and McCotter's statements regarding the Kash & Karry robbery under Rule 404(b), we find no merit to his position. Evidence of a similar armed robbery of a convenience store performed in a similar fashion at the same time of night by the same two principals threedays after the SAK's robbery and approximately five miles from the SAK's store was admissible to show defendant's knowledge and intent in dropping McCotter off near SAK's, as well as their plan and modus operandi. See State v. Wilson, 345 N.C. 119, 126-27, 478 S.E.2d 507, 512 (1996); State v. Diehl, 147 N.C. App. 646, 652, 557 S.E.2d 152, 157 (2001), disc. review denied, 356 N.C. 170, 568 S.E.2d 624 (2002). Although defendant makes no argument that his and McCotter's written statements to law enforcement were unfairly prejudicial under Rule 403, we further find no abuse of the trial court's discretion in admitting this evidence. We note the trial court carefully instructed the jury that this evidence could not be considered as evidence of defendant's character or actions in conformity therewith, but only for the limited purpose of showing modus operandi, plan or common scheme, knowledge, opportunity or absence of mistake in the SAK's robbery. Further, the trial court took the additional step of inquiring into the jury's understanding and ability to follow its limiting instruction: The jurors unanimously indicated they could follow the instruction.
    We reject as speculative defendant's suggestion that the trial court aggravated his sentences based upon McCotter's conduct at the Kash & Karry. Both the trial transcript and the court's written findings reflect that it aggravated defendant's sentences because he committed the instant offenses while on pre-trial release for an unrelated offense.
    No error.
    Chief Judge MARTIN and Judge McGEE concur.
    Report per Rule 30(e).

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