STATE OF NORTH CAROLINA
v. Guilford County
Nos. 02 CRS 102742, 102747
NICHOLAS TYRONE COLEMAN
Attorney General Roy Cooper, by Assistant Attorney General
Sarah Y. Meacham, for the State.
Marilyn G. Ozer for defendant-appellant.
STEELMAN, Judge.
Defendant, Nicholas Tyrone Coleman, appeals his convictions
for attempted robbery with a dangerous weapon and conspiracy to
commit robbery with a firearm. For the reasons discussed herein we
find no error and affirm the judgments of the trial court.
The evidence at trial tended to show that defendant, Sammy Lee
Mebane, Jr., Kenyatta Daye, and Leanne Cervantez attempted to
commit two armed robberies while driving around Guilford County and
Alamance County, North Carolina on the morning of 29 September
2002. They first attempted to rob the Tru Buy Exxon store at the
intersection of Burlington Road and Rock Creek Dairy Road in
Guilford County. Two hours later, they in fact robbed aconvenience store in Alamance County.
Cheryl Rogers, a cashier at the Tru Buy Exxon, testified that
two men entered the store between 7:30 a.m. and 8:00 a.m. After one
of the men used the restroom, they approached the front counter.
Rogers described her ensuing exchange with the men as follows:
[T]he one, he looked at me and he said what
would you say if I told you to give me all
your money. And I told him no. So, then he
said, well, give me all your money and I told
him no. Well, he turned around and he opened
his jacket up. . . . And he had a sawed-off
[shotgun] stuck inside of his jacket. He said
with this, he said, give me all your money.
And I told him no.
Believing that Roger's manager had taken the money to the back of
the store, the men told Rogers “to call her out here.” As Rogers
yelled for her manager, they exited the store. The gunman's
associate, clad in a black hooded sweatshirt, “stuck his head back
in the door” and told Rogers that they were “just joking.” Rogers
called the police. A videotape of the incident was recorded by the
store's surveillance camera and shown to the jury. Although Rogers
was unable to identify the would-be robbers, she described the
gunman's jacket as tan or white with a “big flag on the back.” Her
manager, Rebecca Vance, also testified about the incident but was
unable to identify the assailants.
Mebane testified that he, defendant, and, Cervantez met at
Daye's residence in Graham, North Carolina at approximately 11:00
p.m. Because defendant had no money, they decided to go out
“looking for somebody to rob.” Mebane drove the group in his car
with Cervantez setting next to him, and defendant and Daye sittingin the back seat. After riding around Burlington, they proceeded
to Greensboro. They drove “[a]bout all night” without seeing
anyone to rob, before coming to an Exxon store. Defendant and Daye
went into the store, and Mebane stayed in the car as the driver.
Defendant was armed with a twelve-gauge pump shotgun and was
wearing Mebane's Averex jacket to conceal the gun. Daye was
wearing Cervantez's “hoodie[.]” When defendant and Daye were
unable to get any money from the cashier, the group decided “to try
again.” They proceeded to Burlington, “looking for a store where
it wasn't too crowded.” Approximately two hours after leaving the
Exxon, they found a suitable target. Defendant, Daye, and Mebane
went into the store. Defendant “pointed the gun at the man and
told him to give us all the money.” They grabbed the cash
register, left the store, and returned to Daye's residence to
divide the money.
Cervantez offered an account of events largely consistent with
Mebane's testimony. She claimed the group went out in Mebane's car
intending “to hit a lick” or “scor[e] some money.” Before arriving
at the first store, they decided that she would remain in the car
with Mebane while defendant and Daye went inside. They arrived at
the store at “about seven something in the morning[,]” and
discussed “[w]ho was going to go in, who was going to carry the
gun. You know, how it was going to go down.” Cervantez described
Mebane's Averex jacket, which defendant wore to conceal the gun, as
“a little tan” and bearing an eagle or “[s]ome type of symbol on
the back of it.” Soon after Daye and defendant left the car, Dayereturned and said that defendant had “asked the cashier politely to
give him the money or something.” As defendant ran to the car,
Daye went “back to the store and tells the lady he's just playing.”
After they drove away, Daye made fun of defendant for being so
polite to the cashier. The group then proceeded to Alamance
County, where defendant, Daye and Mebane “actually did rob a
store.” Although Daye was carrying the gun when the two entered
the store, defendant, who returned to the car first, had both the
gun and the money.
Defendant testified he was incarcerated after pleading guilty
to the robbery of the Shack's Mobile convenience store in Alamance
County on 29 September 2002. He participated in the Alamance
County robbery only because Mebane, Daye and Cervantez threatened
to beat or shoot him if he refused. Defendant entered the store
with Mebane and Daye and grabbed the cash register at Mebane's
direction while Mebane held the clerk at gunpoint.
Defendant denied planning to rob the Guilford County Exxon or
participating in the attempted robbery. When Mebane suggested
robbing the Exxon, defendant replied, “[N]o, man.” Mebane and Daye
went into the store without him, with Mebane carrying the shotgun.
As to whether he agreed to commit the robbery, defendant averred,
“I ain't have no agreement with them. I disagreed with the whole
thing. I wasn't on that type of stuff.” While Mebane and Daye
were in the Exxon, defendant argued with Cervantez in the car.
After two or three minutes, Mebane and Daye returned to the car,
and the group drove to Alamance County. After the Alamancerobbery, Mebane drove defendant home.
In defendant's first and only assignment of error he contends
the trial court erred in denying his motion in limine to exclude
evidence of the Alamance County robbery. Pursuant to Rule 404(b)
of the Rules of Evidence, the court found the facts of the
subsequent robbery admissible “to show intent and preparation.” In
addition to challenging the court's ruling under Rule 404(b),
defendant insists the evidence was unfairly prejudicial and thus,
subject to exclusion under Rule 403 of the Rules of Evidence.
Rule 404(b) provides:
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 other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2004). It has long been
established that:
[T]his rule is a clear 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. Washington, 141 N.C. App. 354, 366, 540 S.E.2d 388, 397
(2000) (citing State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d
48, 54 (1990)), disc. review denied, 353 N.C. 396, 547 S.E.2d 427
(2001). Otherwise relevant evidence should not be admitted “if its
probative value is substantially outweighed by the danger of unfairprejudice[.]” N.C. Gen. Stat. § 8C-1, Rule 403. The trial court
enjoys broad discretion to admit or exclude evidence under Rule
403, and will be reversed “only upon a showing that its ruling was
manifestly unsupported by reason and could not have been the result
of a reasoned decision.” State v. Anderson, 350 N.C. 152, 175, 513
S.E.2d 296, 310 (1999) (internal quotation marks and citations
omitted).
Evidence that defendant, Daye, and Mebane committed an armed
robbery of a convenience store in Alamance County just two hours
after defendant and Daye attempted to rob the Guilford County Exxon
was admissible under Rule 404(b) to show defendant's intent to rob
the Exxon, rebutting other evidence that he was “just kidding” when
he displayed the shotgun to Rogers and demanded money. See State
v. Floyd, 148 N.C. App. 290, 293-94, 558 S.E.2d 237, 240 (2002).
Evidence of this second crime further served to establish
defendant's entry into an agreement with Daye, Mebane, and
Cervantez to commit robbery with a firearm, as was required to
support the conspiracy charge. See State v. Love, 131 N.C. App.
350, 356-57, 507 S.E.2d 577, 582 (1998), cert. denied, 528 U.S.
944, 145 L. Ed. 2d 280 (1999). Such evidence which is probative to
the state's case, will necessarily be adverse to a defendant.
Anderson, 350 N.C. at 175, 513 S.E.2d at 310. However, the
probative value of the testimony here, which was necessary to prove
essential elements of the crime charged, outweighs any prejudice.
Moreover, inasmuch as defendant committed the Alamance County
robbery with the same co-conspirators, using the same weapon, andduring the same car trip as his Guilford County offense, we find no
abuse of the trial court's discretion under Rule 403.
Defendant also asserts, without additional argument or
citation to authority, that the admission of this evidence violated
his right to due process under the state and federal constitutions.
Assignments of error for which no reason in support of the argument
is stated or authority cited to, are deemed abandoned. N.C. R.
App. R. 28(b)(6).
The record on appeal contains additional assignments of error
not addressed by defendant in his brief to this Court. These
assignments of error are also deemed abandoned. See id.
NO ERROR.
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).
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