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1. Appeal and Error--preservation of issues--grounds for objection--difference between
trial and appeal
Defendant did not preserve for appeal his contention that a detective's opinion amounted to an impermissible opinion about guilt where his objection at trial was based on hearsay.
2. Appeal and Error--preservation of issues--sufficiency of evidence--motion at trial
A defendant must move to dismiss a criminal charge in the trial court to preserve sufficiency of evidence for appellate review; here, defendant's assignment of error alleging plain error in this regard was dismissed.
3. Sentencing--aggravating factor_Blakely error_jury finding required
Defendant was awarded a new sentencing hearing where his sentence was enhanced beyond the presumptive range based upon a factor not submitted to the jury and proven beyond a reasonable doubt.
Roy Cooper, Attorney General, by Sonya M. Calloway, Assistant
Attorney General, for the State.
Staples S. Hughes, Appellate Defender, by Barbara S. Blackman,
Assistant Appellate Defender, for the defendant.
MARTIN, Chief Judge.
Defendant was found guilty by a jury of robbery with a dangerous weapon. The trial court determined that defendant had a Prior Record level II and found as a factor in aggravation of sentencing that defendant joined with more than one other person in committing the offense and was not charged with committing aconspiracy. Defendant was sentenced in the aggravated range to imprisonment for a minimum term of 95 months and a maximum term of 123 months. Defendant appeals.
The evidence before the trial court tended to show that on 23 December 2001, an individual wielding a sawed-off shotgun robbed the Citgo Food Mart in Grimesland, North Carolina. The robber ordered the two employees to open the cash register and then lie on the floor, and he took $1,665 from the register. Two surveillance cameras captured the robbery on tape. The gunman was wearing dark pants and a long black coat, and his face was covered by a t-shirt or towel.
Three similar robberies occurred between December 2001 and March 2002. Police believed the three robberies were committed by the same perpetrator since the robber wore a long black coat and hid his face in at least three of the four robberies. Detective Phillip Moore of the Pitt County Sheriff's Department testified that he arrested Quincy Taft, Reginald Daniels, and defendant for the robbery in question.
Detective Moore testified, based on information provided to him by Daniels, that his investigation revealed defendant to have been the gunman at the December 23rd robbery. Upon defendant's objection based on hearsay, the trial court admitted the testimony for the limited purpose of corroborating the testimony of Daniels, who had not yet testified, and instructed the jury accordingly. Detective Moore also testified that Daniels had not been truthfulwith him about the robbery in question on several occasions and had attempted to minimize his involvement.
Daniels testified at trial that defendant called him and asked him for a ride so he could rob the Citgo store. Daniels picked up defendant and Quincy Taft at defendant's house; defendant was carrying a sawed-off shotgun and was wearing dark clothes. Daniels drove defendant to a place near the store and let him out of the car. Defendant wrapped a t-shirt around his head and ran toward the store; Daniels drove a distance, then turned around and returned to the area and saw defendant running down the road. He picked defendant up and took him back to his house, where the three men counted the money. Defendant gave Daniels about $200.
Defendant denied any participation in the robbery. He testified that on the evening in question he was at his mother's house. He left to go to Western Union at Kroger's grocery store to take out money, but it had already closed. On his way back, he stopped to get gas at the Citgo between 10:20 and 10:30 p.m. He returned home, and Sheretha Jones drove him and Quincy Taft to a cousin's house and then to the airport for an early morning flight to Connecticut. The surveillance tapes confirmed that he was at the Citgo buying gas at 10:15 p.m. Ms. Jones's testimony was similar to defendant's, and defendant's cousin confirmed that defendant stopped by his house a little before 11:00 p.m.
Quincy Taft testified that he went with defendant to the Western Union, to the Citgo for gas, and back to defendant's mother's house. Reginald Daniels came to the house, and Danielsand defendant left. When they returned, Taft saw some money lying on a bed, but he did not know where it came from or how it got there. Taft said he did not ride anywhere with Reginald Daniels that night.
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