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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. KEITH LAMAR BELLAMY and LEON McCOY
Filed: 16 August 2005
1. Robbery--dangerous weapon_taking property of individual and employer_one
The trial court erred by failing to dismiss one of the charges of robbery with a dangerous
weapon against each defendant and the cases are remanded for resentencing, because the robbery
of an individual of her own property and the property of her employer, occurring at the same
time, constitutes only one offense of robbery with a dangerous weapon.
2. Sexual Offenses--first-degree_-motion to dismiss--sufficiency of evidence--
The trial court did not err by denying defendant's motion to dismiss the charge of first-
degree sexual offense even though defendant contends there was insufficient evidence of
penetration, because: (1) N.C.G.S. § 14-27.1(4) provides that a sexual act can be defined as
penetration, however slight, by any object into the genital or anal opening of another person's
body; (2) in the context of rape, our Supreme Court has held that evidence that defendant entered
the labia is sufficient to prove the element of penetration, and the Court of Appeals finds no
reason to establish a different standard for sexual offense; and (3) the evidence in the instant case
shows that defendant used the barrel of his gun to spread the labia of the victim.
3. Evidence--surveillance video_-probative value--authentication_-relevancy
The trial court did not err in a robbery with a dangerous weapon and first-degree sexual
offense case by admitting into evidence a surveillance video from another store that faced in the
direction of the pertinent store, because: (1) any argument that the video should have been
excluded under N.C.G.S. § 8C-1, Rule 403 is not properly before the Court of Appeals when
defendants did not object to the admission of the video at trial on the ground that its probative
value was outweighed by its prejudicial effect and defendants did not argue on appeal that the
prejudicial effect of the video amounted to plain error; (2) the State presented proper
authentication under N.C.G.S. § 8C-1, Rule 901(a) including testimony establishing that the video
recorder was in working order, that it was recording the night in question, that it was viewed the
following day, that it had not been altered prior to trial, and that the chain of custody had not been
broken; and (3) the video was relevant evidence potentially corroborating a witness's testimony
and it was the province of the jury to determine what weight, if any, to give to the evidence.
4. Evidence--narrative of video shot--opinion testimony
The trial court did not err or commit plain error in a robbery with a dangerous weapon
and first-degree sexual offense case by allowing a detective to narrate the video shot inside the
store at the time of the crime and by allowing him to express his opinion regarding the significance
of the events depicted, because: (1) assuming arguendo that it was error to allow the detective to
narrate the video footage and that each instance of testimony defendants complain of constitutes
improper opinion testimony, there was no prejudicial error in light of the substantial evidence of
guilt; (2) nothing in the record indicates the Court of Appeals was required to consider the
contested evidence cumulatively; (3) the Court of Appeals declined to treat defendants' sparse
and sometimes unrelated objections in the instant case as a continuing objection to all the
contested evidence; and (4) even assuming arguendo that each piece of testimony individually was
improper, defendants have failed to show it was plain error.
5. Witnesses_vouching for credibility--plain error analysis
The trial court did not commit plain error in a robbery with a dangerous weapon and first-
degree sexual offense case by allowing a detective to vouch for a witness's credibility in his
testimony, because: (1) assuming arguendo that the detective's testimony (that the video
corroborated the witness's statements concerning his actions as he reentered the restaurant and
that he believed the witness had been truthful in that particular testimony) was improper, it did not
rise to the level of plain error when the detective explicitly testified that he had doubts about the
witness and that he still considered the witness a suspect; and (2) assuming arguendo that the
detective's three other contested statements were improperly admitted, they also did not rise to
the level of plain error.
6. Evidence--cash--ski masks
The trial court did not commit plain error in a robbery with a dangerous weapon and first-
degree sexual offense case by admitting over objection certain physical evidence at trial including
$1,000 in cash found at one defendant's residence and two green ski masks found in such
defendant's car, because assuming arguendo that the items were improperly admitted, defendants
make no argument on appeal as to how the admission of these items of evidence has prejudiced
them in any way.
7. Appeal and Error--preservation of issues--limiting instruction
Although defendant contends the trial court erred in a robbery with a dangerous weapon
and first-degree sexual offense case by denying defendant's request that an instruction be given
limiting the jury's consideration of evidence to the codefendant including $1,000 in cash found at
the codefendant's residence and two green ski masks found in the codefendant's car, this issue has
not been properly preserved because: (1) although defendant requested a limiting instruction with
regard to the photograph of the two masks, he did not request such an instruction for the
admission of the actual masks or the $1,000; and (2) defendant does not argue on appeal that the
trial court committed plain error by failing to give a limiting instruction ex mero motu.
8. Sexual Offenses--first-degree--failure to instruct on lesser-included offenses
The trial court did not commit plain error by failing to instruct the jury on any lesser-
included offenses of first-degree sexual offense including assault on a female and attempted first-
degree sexual offense, because: (1) assault on a female is not a lesser-included offense of first-
degree sexual offense; and (2) where there is no evidence that the sexual offense was not
accomplished, the court has no duty to instruct on an attempted sexual offense.
9. Evidence--alleged false testimony--observations of videotape
The trial court did not err in a robbery with a dangerous weapon and first-degree sexual
offense case by failing to overturn defendant's convictions based on the State allegedly allowing a
detective to give testimony involving his observations of the videotape evidence that it knew to be
false without correcting the testimony, because: (1) where the judge, jury, and defendants all had
the opportunity to view the video themselves, the possibility of misleading the jury is slight; (2) it
is exceedingly unlikely that the State would intentionally proffer false evidence in a situation
where the falsity of the evidence could be easily discovered; and (3) even assuming arguendo the
testimony was false, defendant failed to show the evidence was material and knowingly and
intentionally used by the State to obtain his conviction.
10. Evidence--prior crimes or bad acts_preparation of photographic lineup
The trial court did not err by permitting a detective to testify concerning the method he
used to put together a photographic line-up containing a photograph of defendant even it this
testimony may have allowed the jury to infer that defendant had a prior arrest.
11. Sexual Offenses--first-degree_codefendant's act during robbery_acting in concert--
sufficiency of evidence
The trial court erred by denying defendant's motion to dismiss the charge of first-degree
sexual offense committed during the course of a robbery of a fast food restaurant under the theory
of acting in concert, because: (1) based on the facts of this case, a sex offense committed in the
course of a robbery of a public business by a codefendant was not a natural or probable
consequence of the robbery; and (2) a reasonable person in defendant's position would not have
foreseen that the codefendant would take the time to deviate from the planned robbery to commit
this type of bizarre sexual assault on the victim.
12. Criminal Law-_joinder of cases--motion to sever
The trial court did not abuse its discretion in a robbery with a dangerous weapon and first-
degree sexual offense case by joining defendant's cases for trial with those of a codefendant and
by denying defendant's motion to sever, because: (1) the conflict in defendants' respective
positions at trial, to the extent there was any, was minimal; (2) defendants were not each claiming
the other was the guilty party; and (3) this defendant failed to show that he was deprived of a fair
13. Appeal and Error--preservation of issues--failure to argue
Assignments of error that defendants have not argued in their briefs are deemed
abandoned under N.C. R. App. P. Rule 28(b)(6).
Appeal by defendants from judgment entered 15 August 2003 by
Judge Jay D. Hockenbury in New Hanover County Superior Court.
Heard in the Court of Appeals 1 February 2005.
Attorney General Roy Cooper, by Assistant Attorneys General
William B. Crumpler and Christopher W. Brooks, for the State.
Brian Michael Aus, for defendant-appellant Bellamy.
Daniel Shatz, for defendant-appellant McCoy.
The robbery of an individual of her own property and the
property of her employer, occurring at the same time, constitutes
only one offense of robbery with a dangerous weapon. A sex offensecommitted in the course of a robbery of a public business by a
robber was not a natural or probable consequence of the robbery.
The conviction of the co-defendant on the theory of acting in
concert must be reversed.
On 23 September 2002, C.B. was working the evening shift as
the assistant manager of a McDonald's at Long Leaf Mall in
Wilmington. On her crew during the shift were defendant Leon McCoy
(McCoy) and Andre Randall (Randall), who frequently worked together
on the same shift. C.B. closed the lobby and locked the doors at
10:00 that night, though the drive-thru window remained open until
11:00. Ordinarily McCoy took out the trash, however on that night
Randall took it out, and, contrary to policy, failed to notify C.B.
that he was doing so. The manager should have opened and shut the
locked door for Randall, however Randall simply turned the deadbolt
in a way that kept the door ajar. It was through this open door
that an armed assailant entered at around 11:30, as McCoy was
mopping the hallway and C.B. was preparing the night deposit. The
assailant went into the office and put a gun to the side of C.B.'s
head. He wore a green ski mask, but she could tell it was a black
male who was about her height. He demanded the deposit money, and
also took C.B.'s personal cash. He demanded a bag for the cash.
McCoy, who was lying on the floor outside the office, went to the
front near the service counter and got a bag. Though there were
several silent alarms in this area, McCoy did not activate any of
Once he bagged the money, the robber told C.B. to undress. As
she was unbuttoning her shirt, he said it was taking too long andhe told her to just drop her pants and underwear. He then demanded
that she spread her labia apart. He stooped down to inspect her
genitals, and used the barrel of his gun to pull her labia further
apart. He noticed that she had a tampon inserted, and told her
that she was lucky. The assailant then departed with the money.
After the assailant left, McCoy went to the front of the store and
hit a silent alarm.
McCoy and Randall often rode to work together. At trial,
Randall testified that: He saw no one outside as he took out the
trash that night, but he did see a white Mitsubishi Galant in the
parking lot. Defendant Keith Lamar Bellamy (Bellamy) owned a
burgundy Honda automobile, but at the time of the robbery he was
driving his cousin's 1995 white Mitsubishi Galant. Bellamy and
McCoy knew each other and were friends. Randall knew Bellamy from
seeing him around the neighborhood and from playing basketball with
him. McCoy was having financial problems before the robbery.
McCoy lived in a boarding house and at times would be late with his
rent and get locked out of his room. McCoy was upset about his
work hours being cut because he was not going to have enough money
to pay his rent. A few weeks before the robbery, Randall learned
that McCoy was contemplating robbing the McDonald's. A couple of
days before the robbery, having been locked out of his room for
non-payment, McCoy spoke more specifically about robbing the
McDonald's to get money to pay his rent. McCoy was looking for
Bellamy to help him commit the robbery. He told Randall not to
interfere with the robbery. A couple of days or so before the
robbery, McCoy left work early. Around 11:30 p.m. that night,Randall saw McCoy and Bellamy in the parking lot in the burgundy
Honda. Randall believed the robbery was supposed to have taken
place that night, but was called off because of police presence in
the area. When Randall took the trash out on the night of the
robbery and saw the white Galant in the parking lot, he knew it was
Bellamy. Upon reentering the restaurant, Randall encountered a
person wearing a green mask. The person pointed a gun at Randall's
head and told him to get down on the floor. Randall recognized the
robber's voice as Bellamy's.
Detective Overman of the Wilmington Police Department arrived
at McDonald's about 12:20 a.m. McCoy told him that he could not
identify the perpetrator's voice. He said the robber pointed the
gun directly at him and ordered him to lie down immediately when
the robber entered the restaurant. The assertion that McCoy was
immediately ordered to the floor was contradicted by videotapes,
which showed the office, hall, and kitchen area of the McDonald's
during the robbery.
Randall and McCoy left McDonald's together, before 1:58 a.m.
According to Randall, McCoy asked Randall to take him to where
Bellamy lived, and used Randall's cell phone to call Bellamy's
residence but no one answered. Phone records showed a call from
Randall's phone to that residence at 1:58 a.m. McCoy said he
needed to find Bellamy, and directed Randall to drop him off at a
location where he thought Bellamy might be located. Randall
testified that within a few days of the robbery, McCoy offered him
$400 not to say anything to the police about the robbery and hisrole in it. He attempted to hand the money to Randall, but Randall
A store near the McDonald's, Pets Plus, had a surveillance
system with a camera that faced in the direction of McDonald's.
The videotape shows a light colored car leaving the area around the
time the assailant left the McDonald's. The assailant had a
handgun that appeared to be a .45 caliber automatic. During a
search of Bellamy's residence in Wilmington on 14 November 2002,
six .45 caliber bullets were found in his jacket. Police also
found a lockbox containing fifty twenty dollar bills. On 31
October 2002 in Wilmington, Bellamy fled from the police in his
burgundy Honda and subsequently escaped on foot. The police found
a green ski mask in the far right side of the trunk of the Honda.
Another green ski mask was found in the trunk under a computer
Sgt. Dean Daniels of the New Hanover County Sheriff's
Department had known Bellamy since 1992. He was familiar with
Bellamy's walk, dress and mannerisms. He reviewed the McDonald's
videotapes and observed that the perpetrator walked and dressed in
a manner similar to Bellamy, and also used his hands similarly to
Bellamy when talking.
Defendants were tried before a jury in New Hanover County
Superior Court, and were found guilty of all charges on 15 August
2003. Bellamy was convicted of two counts of robbery with a
dangerous weapon, which were consolidated for judgment, and first-
degree sexual offense. The two sentences were ordered to run
consecutively, and resulted in a total active prison sentence of439 months to 546 months. McCoy was convicted of two counts of
robbery with a dangerous weapon and one count of first-degree
sexual offense, which were consolidated for judgment, resulting in
an active prison term of 307 months to 378 months. From these
judgments each defendant appeals.
Defendants' Joint Arguments on Appeal
In Bellamy's fifth argument, and McCoy's first argument, they
contend that the trial court erred in denying their motions to
dismiss. We agree in part.
Both defendants argue that the State failed to establish by
sufficient evidence that there were two distinct robberies
supporting two robbery convictions for each defendant, and that the
State failed to present sufficient evidence to support the element
of penetration needed to prove first-degree sexual offense.
When a defendant moves for dismissal, the trial court is to
determine whether there is substantial evidence (a) of each
essential element of the offense charged, or of a lesser offense
included therein, and (b) of defendant's being the perpetrator of
the offense. If so, the motion to dismiss is properly denied.
State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-52
. Substantial evidence is 'such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.'
Id. at 66, 296 S.E.2d at 652
 The defendants argue that the trial court erred in failing
to dismiss one of the charges of robbery with a dangerous weapon
against each of them. The defendants were both charged with two
counts of robbery with a dangerous weapon, one count for robbingC.B. personally, and one count for robbing McDonald's. The State
concedes, and we agree, that one of the judgments for robbery with
a dangerous weapon against each defendant should have been arrested
by the trial court because there was only one robbery with a
dangerous weapon. This Court, commenting on State v. Beaty, 306
N.C. 491, 293 S.E.2d 760 (1982) (citation omitted), overruled on
different grounds, State v. White, 322 N.C. 506, 369 S.E.2d 813
In Beaty, there were two indictments for armed
robbery arising out of the assault of a single
employee, during which assault property was
taken from both the employee and the business.
The Beaty Court stated that, [t]he
controlling factor in this situation is the
existence of a single assault, not the two
sources (the store and the employee) from
which the money was taken. The fact there
were two indictments was deemed irrelevant.
The Court therefore concluded only one armed
robbery had occurred.
State v. Suggs, 86 N.C. App. 588, 596, 359 S.E.2d 24, 29 (1987).
We therefore arrest judgment on 02 CRS 23396, one count of robbery
with a dangerous weapon against Bellamy, and we arrest judgment on
02 CRS 23435, one count of robbery with a dangerous weapon against
McCoy, and remand the cases of each defendant for resentencing.
 As to the convictions for first-degree sexual offense, we
find that there was sufficient evidence of penetration for that
charge to be submitted to the jury. N.C. Gen. Stat. §
14-27.4(a)(2)a. provides: A person is guilty of a sexual offense
in the first-degree if the person engages in a sexual act: With
another person by force and against the will of the other person,
and: Employs or displays a dangerous or deadly weapon . . . .
Sexual act [can be defined as] the penetration, however slight, byany object into the genital or anal opening of another person's
body . . . . N.C. Gen. Stat. § 14-27.1(4). N.C.G.S. § 14-27.1(4)
requires only slight penetration of the genital opening. State v.
Watkins, 318 N.C. 498, 502, 349 S.E.2d 564, 566 (1986).
Defendants argue that the evidence at trial was insufficient
on the element of penetration to allow this charge to be submitted
to the jury. We disagree.
C.B. testified at trial that the assailant ordered her to drop
her pants and underwear at gunpoint and asked her to spread open
her labia so he could inspect her vagina. The assailant then used
the barrel of his gun to separate her labia. C.B. further
testified that she felt the gun up against my private area right
where the tampon would be entered. She clarified this statement
by adding: He didn't shove the ... barrel of the gun directly into
me. However, I did feel the barrel of the gun, the force of it in
the vicinity of the area where you would put the tampon in. She
further clarified that she felt the barrel of the gun on the inside
of her labia.
Our Supreme Court has held that in the context of rape,
evidence that the defendant entered the labia is sufficient to
prove the element of penetration. State v. Johnson, 317 N.C. 417,
434, 347 S.E.2d 7, 17 (1986), superseded by statute as stated in,
State v. Moore, 335 N.C. 567, 440 S.E.2d 797 (1994). We find no
reason to establish a different standard for sexual offense. We
hold that all of the evidence in the instant case shows that
Bellamy used the barrel of his gun to spread the labia of C.B.
This evidence supported the element of penetration for the first-degree sexual offense. The trial court properly denied the motions
of the defendants to dismiss this charge, on this basis.
 In Bellamy's first argument, and McCoy's fifth argument,
they contend that the trial court erred in admitting into evidence
a video from Pets Plus because the State was unable to authenticate
it as accurately depicting anything which was relevant to any
issue in the case. We disagree.
McCoy adopts the argument of Bellamy on this issue.
Defendants argue that the video was improperly admitted on three
grounds: 1) the video was not properly authenticated, 2) the video
did not accurately portray the events of that evening, and 3) the
video was unduly prejudicial. We first note that neither defendant
objected at trial to the admission of the Pets Plus video on the
grounds that it was unduly prejudicial. The defendants did not
object to the admission of the video for illustrative purposes.
They did object to the admission of the video into evidence for
substantive purposes based on a lack of proper authentication,
arguing it did not accurately portray the events of that night, and
that it was irrelevant to the case. The trial court overruled
Because the defendants did not object to the admission of the
video at trial on the grounds that its probative value was
outweighed by its prejudicial effect (North Carolina Rules of
Evidence Rule 403), and because they do not argue on appeal that
the prejudicial effect of the video was such as to amount to plain
error, any argument that the video should have been excluded underRule 403 is not properly before us.
State v. Flippen, 349 N.C. 264,
274-75, 506 S.E.2d 702, 709 (1998).
Defendants argue that the trial court violated North Carolina
Rules of Evidence Rule 901(a) by admitting the video tape in
question. Rule 901(a) states: The requirement of authentication
or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims. This Court has
established a four-pronged test addressing the admissibility of a
The prerequisite that the offeror lay a proper
foundation for the videotape can be met by:
(1) testimony that the motion picture or video
tape [sic] fairly and accurately illustrates
the events filmed (illustrative purposes); (2)
proper testimony concerning the checking and
operation of the video camera and the chain of
evidence concerning the videotape . . .; (3)
testimony that the photographs introduced at
trial were the same as those [the witness] had
inspected immediately after processing,
(substantive purposes); or (4) testimony that
the videotape had not been edited, and that
the picture fairly and accurately recorded the
actual appearance of the area 'photographed.'
State v. Mewborn, 131 N.C. App. 495, 498, 507 S.E.2d 906, 909
(1998) (quoting State v. Cannon, 92 N.C. App. 246, 254, 374 S.E.2d
604, 608 (1988), rev'd on other grounds, 326 N.C. 37, 387 S.E.2d
450 (1990)). In Mewborn
The state offered testimony from Tonya Jenkins
and Sergeant Harrell of the Kinston Police
Department that the camera, VCR, and monitor
in the Mallard Food Store were operating
properly on the day of the robbery. Sergeant
Harrell testified that he watched the tape
shortly after his arrival at the crime scene.
Realizing that it depicted the robbery,
Harrell showed the tape to Lieutenant Boyd of
the Kinston Police Department when she arrivedat the store. Lieutenant Boyd then followed
standard procedures to safeguard the tape as
evidence. At trial, during voir dire outside
the jury's presence, Lieutenant Boyd stated
that the images on the tape had not been
altered and were in the same condition as when
she had first viewed them on the day of the
robbery. Because Lieutenant Boyd viewed the
tape on both the day of the robbery and at
trial and testified that it was in the same
condition and had not been edited, there is
little or no doubt as to the videotape's
authenticity. When taken as a whole, the
testimony of Boyd, Harrell, and Jenkins
satisfy the test enunciated in Cannon.
Mewborn, 131 N.C. App. at 498-99, 507 S.E.2d at 909. In the
instant case the State presented testimony establishing that the
video recorder was in working order; that it was recording the
night in question; that it was viewed the following day; that it
had not been altered prior to trial; and that the chain of custody
had not been broken. The video tape was properly authenticated,
and accurately portrayed the events within its field of view on the
night in question.
Though defendants argued at trial that the video should have
been excluded for lack of relevance, they do not specifically
address that argument in their briefs. We note, however, that the
video shows a light colored vehicle passing in front of the Pets
Plus store on the night in question, around the time that the
perpetrator of the robbery would have been fleeing the scene. The
vehicle bore a resemblance to the vehicle which Bellamy drove away
from the scene of the robbery. This video was relevant evidence
potentially corroborating Randall's testimony. It was the province
of the jury to determine what weight, if any, to give to that
evidence. The trial court properly admitted the video ascorroborative and substantive evidence. These arguments are
 In Bellamy's second argument, and McCoy's fourth argument,
they contend that the trial court committed error or plain error in
allowing Detective Overman to narrate the videos shot inside the
McDonald's at the time of the crime, and in allowing him to express
his opinion regarding the significance of the events depicted. We
We first note that though defendants contend testimony by
Sergeant Dean Daniels of the New Hanover County Sheriff's
Department that he believed the masked man in the video was Bellamy
constituted error, neither defendant has assigned Sergeant Daniels'
testimony as error in the record as required by Rule 10(a) of the
North Carolina Rules of Appellate Procedure, and thus they have not
preserved this argument for appellate review.
State v. White, 82
N.C. App. 358, 360, 346 S.E.2d 243, 245 (1986).
Defendants list thirty-nine specific instances where they
contend Detective Overman's testimony constituted plain error.
Assuming arguendo that it was error to allow Detective Overman to
narrate the video footage, and that each instance of testimony
defendants complain of constitutes improper opinion testimony, we
find no prejudicial error. State v. McElroy, 326 N.C. 752, 756, 392
S.E.2d 67, 69 (1990).
Of the thirty-nine separate instances of testimony complained
of, defendants only objected to three, and one of these objections
was sustained. Of the remaining two, Bellamy objected once, and
McCoy objected once. Upon objection, [a] defendant is prejudiced by errors relating
to rights arising other than under the
Constitution of the United States when there
is a reasonable possibility that, had the
error in question not been committed, a
different result would have been reached at
the trial out of which the appeal arises. The
burden of showing such prejudice under this
subsection is upon the defendant.
N.C. Gen. Stat. § 15A-1443(a) (2003); McElroy, 326 N.C. at 756, 392
S.E.2d at 69. Bellamy objected to the following question and
answer concerning a chair that the gunman positioned in a way that
obstructed his exit:
Q. Why is the position of this chair
significant in this particular investigation
A. You would think that the suspect would
want a clear line _ [of flight.]
MR. DAVIS: Objection to what 'you would
think', your honor.
In light of the substantial evidence presented at trial indicating
Bellamy's guilt, much of which we have related above, we hold there
is no reasonable possibility that the jury would have reached a
different verdict had this evidence been excluded.
McCoy objected to the following testimony by Detective
At the beginning of this cement median there
started a trail of money, one-dollar bills.
And they extended from right before the
median, through the median, headed in a
southerly direction. $40, I believe, is what
was recovered. It indicated to me that the
suspect [Bellamy] took his time getting every
cent from the interior of the office. He
appeared, you know, concerned about getting
every cent. I couldn't understand why he left
$40 lying on the ground out here unless he was
hearing some type of alarm go off and he was
concerned about the police being in route.
This testimony concerns Bellamy, and could only prejudice McCoy if
there is a reasonable possibility that it caused the jury to reach
a different verdict for Bellamy, thus supporting McCoy's conviction
based on acting in concert. We hold that McCoy fails to meet his
burden concerning this testimony, which merely states Detective
Overman's opinion that the suspect wanted to get every cent and
must have been aware that the police were en route.
The remaining thirty-six instances complained of by defendants
were not objected to and are thus subject to plain error analysis.
Where, as here, defendant contests separate admissions of evidence
under the plain error rule, each admission will be analyzed
separately for plain error, not cumulatively.
State v. Riley, 159
N.C. App. 546, 550-551, 583 S.E.2d 379, 383 (2003);
Holbrook, 137 N.C. App. 766, 768-69, 529 S.E.2d 510, 511-12 (2000).
Defendants argue that because the trial court repeatedly
overruled their objections, further objection was futile and this
Court should evaluate all of the contested to testimony under
Gen. Stat. § 15A-1443(a) analysis pursuant to State v. Mills, 83
N.C. App. 606, 612, 351 S.E.2d 130, 134 (1986). In Mills, this
Court determined that a pattern of objections related to prior bad
act evidence constituted a continuing objection, and decided in its
discretion to consider evidence admitted without objection. There
is nothing in Mills indicating that the Court was required to
consider this evidence cumulatively. We decline to treat
defendants' sparse and sometimes unrelated objections in the
instant case as a continuing objection to all the contested
evidence, and thus apply plain error analysis.
The plain error rule applies only in truly exceptional
cases. State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986).
[T]he term 'plain error' does not simply mean obvious or apparent
error . . . . State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375,
378 (1983). [T]o reach the level of 'plain error' contemplated in
Odom, the error . . . must be 'so fundamental as to amount to a
miscarriage of justice or which probably resulted in the jury
reaching a different verdict than it otherwise would have
reached.' State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193
(1993) (citations omitted).
In other words, the appellate court must
determine that the error in question tilted
the scales and caused the jury to reach its
verdict convicting the defendant. Therefore,
the test for plain error places a much
heavier burden upon the defendant than that
imposed by N.C.G.S. § 15A-1443 upon defendants
who have preserved their rights by timely
objection. This is so in part at least
because the defendant could have prevented any
error by making a timely objection.
Walker, 316 N.C. at 39, 340 S.E.2d at 83. We have considered each
piece of testimony individually, as we are required to do, and hold
even assuming arguendo that all were improper, defendants have
failed in their burden of showing any of them rise to the level of
plain error. These arguments are without merit.
 In Bellamy's eighth argument, and McCoy's third argument,
they contend that the trial court committed plain error by allowing
Detective Overman to vouch for Randall's credibility in his
testimony. We disagree.
It is improper for one witness to vouch for the veracity of
another. State v. Robinson, 355 N.C. 320, 334-35, 561 S.E.2d 245,255 (2002). In the instant case, defendants argue that the trial
court committed plain error by allowing Detective Overman to make
four statements of his opinion regarding the credibility of
Randall. Randall had testified earlier at trial that he had
removed a key from a keypad next to the door when he returned from
taking the trash out. The security video shows Randall doing
something near the door after he re-entered the McDonald's.
Detective Overman testified that this footage was significant
because it corroborates what he has to say. It shows me that he's
telling the truth.
Assuming arguendo that this testimony was improper, we hold
that it does not rise to the level of plain error. It is clear
from the transcript that Detective Overman was simply stating that
the video corroborated Randall's statements concerning his actions
as he re-entered the restaurant; that he believed Randall had been
truthful in that particular testimony. Detective Overman's
statements do not suggest that he was of the opinion that Randall
had been truthful in all of his testimony; specifically in his
statements directly implicating the defendants in the crimes.
In fact, Detective Overman explicitly testified that he had
doubts about Randall: that he felt Randall was holding something
back, and that he still considered Randall a suspect. In light of
this testimony questioning Randall's truthfulness, we hold that
when considering all the evidence, any error in the admission of
the complained of testimony does not rise to the level of plain
error. Defendants further argue plain error in Detective Overman's
testimony that 1) cell phone records corroborated Randall'sstatements that McCoy used his cell phone after the robbery to call
Bellamy; 2) the video from Pets Plus corroborated Randall's
statements concerning a white Mitsubishi Gallant he claimed to have
seen in the parking lot just before the robbery, and 3) the
statement that without Randall and the information he was giving
me, this investigation never would have been solved. Assuming
arguendo these statements were improperly admitted, we hold that
they do not rise to the level of plain error. This argument is
 In Bellamy's seventh argument, and McCoy's sixth argument,
they contend that the trial court erred or committed plain error in
admitting over objection certain physical evidence at trial. We
Defendants argue that the trial court erred in admitting
$1000.00 in cash found in Bellamy's residence, and two green ski
masks found in Bellamy's car. Defendants admit that they did not
object at trial to the admission of the $1000.00, but contend that
they did object to the admission of the ski masks. Our review of
the record indicates that defendants objected initially to the
admission of a photograph of the two masks. The trial court
allowed the witness (C.B.) to look at the photo and testify whether
the masks were similar to the one worn by the gunman during the
robbery, but the State was not allowed to admit the photo as
evidence at that time. Defendants did not object to the later
introduction of the photograph for illustrative purposes, nor did
they object to the admission of the actual ski masks. Therefore,
defendants have not preserved this issue for normal appellatereview, and we are limited to plain error analysis for the
admission of both the $1000.00 and the masks.
State v. Parker, 350
N.C. 411, 427, 516 S.E.2d 106, 118 (1999).
Assuming arguendo that the items were improperly admitted,
defendants make no argument on appeal as to how the admission of
these items of evidence has prejudiced them in any way. It is the
defendants' burden in plain error analysis to prove
that the jury
probably would have reached a different verdict
absent the error.
State v. Riley, 159 N.C. App. 546, 551, 583 S.E.2d 379, 383
Defendants fail to carry this burden.
 McCoy also argues that the trial court erred in denying
his request that an instruction be given limiting the jury's
consideration of this evidence to Bellamy, since the evidence was
recovered from Bellamy. Though McCoy requested a limiting
instruction with regard to the photograph of the two masks, he did
not request such an instruction for the admission of the actual
masks or the $1000.00. McCoy does not argue on appeal that the
trial court committed plain error by failing to give a limiting
instruction ex mero motu, thus this issue has not been properly
preserved on appeal.
State v. Cummings, 352 N.C. 600, 636, 536
S.E.2d 36, 61 (2000), cert. denied, Cummings v. North Carolina, 532
U.S. 997, 149 L. Ed. 2d 641 (2001).
This argument is without
Defendant Bellamy's Appeal
 In Bellamy's sixth argument he contends that the trial
court committed plain error in failing to instruct the jury on anylesser included offenses to first-degree sexual offense. We
Because Bellamy did not request an instruction on any lesser
included offense, our review of this issue is limited to plain
error. State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193
(1993). Our Supreme Court has stated that to reach the level of
'plain error' . . . the error in the trial court's jury
instructions must be 'so fundamental as to amount to a miscarriage
of justice or which probably resulted in the jury reaching a
different verdict than it otherwise would have reached.' Id. at
62, 431 S.E.2d at 193.
Bellamy argues that the trial court should have instructed the
jury on the lesser included offenses of assault on a female and
attempted first-degree sexual offense. We first note that assault
on a female is not a lesser included offense of first-degree sexual
offense. State v. Bagley, 321 N.C. 201, 210, 362 S.E.2d 244, 249
(1987). Therefore, our analysis is limited to attempted first-
degree sexual offense. Bellamy presented no evidence at trial.
Generally, when there is no evidence that the sexual offense was
not accomplished, the court has no duty to instruct on an attempted
sexual offense. State v. Hensley, 91 N.C. App. 282, 284, 371 S.E.2d
498, 499 (1988).
Bellamy argues that C.B.'s testimony was equivocal, and that
the State's evidence could allow a jury to find that there was no
penetration, and that he was guilty of the lesser offense of
attempted first-degree sexual offense. As we discussed above, all
of the evidence showed that Bellamy used the barrel of his gun tospread the labia of C.B. This constituted the penetration of
C.B.'s vagina, and thus the sexual offense was completed. The
trial court was not required to submit attempted first-degree
sexual offense to the jury as a lesser offense, and thus committed
no error and no plain error. This assignment of error is without
 In Bellamy's third argument he contends that his
conviction should be overturned because the State allowed Detective
Overman to give testimony it knew to be false and did not correct
it. We disagree.
When a defendant shows that 'testimony was in fact false,
material, and knowingly and intentionally used by the State to
obtain his conviction,' he is entitled to a new trial. State v.
Sanders, 327 N.C. 319, 336, 395 S.E.2d 412, 423 (1990) (citations
omitted). Testimony is material in this context if there is any
reasonable likelihood that the false testimony could have affected
the judgment of the jury. Id., 395 S.E.2d at 424, quoting United
States v. Augurs, 427 U.S. 97, 103, 49 L. Ed. 2d 342, 349-50
In Bellamy's assignments of error, he argues that Detective
Overman submitted false testimony on three separate occasions, each
involving his observations of the videotape evidence. We first
note that the danger from which this rule seeks to protect
defendants is the intentional misleading of the jury through the
introduction of false evidence. Where, as here, judge, jury, and
defendants (including their counsel) all had the opportunity to
view the video themselves, the possibility of misleading the jury,(and thus affecting the outcome of the trial) must necessarily be
slight. Further, it is exceedingly unlikely that the State would
intentionally proffer false evidence in a situation where the
falsity of the evidence could be easily discovered.
First, Bellamy challenges testimony that a white Mitsubishi
Gallant was recorded on videotape passing in front of the Pets Plus
store at around the time the masked gunman was fleeing the
McDonald's. Detective Overman admitted at trial that he could not
be certain the car was a white Gallant. Therefore, even if the car
was not a white Gallant, Detective Overman's testimony when read in
full was not false. Second, Bellamy challenges testimony that the
masked gunman had his finger off the trigger when he was aiming the
gun at McCoy and ordering him to the ground, and that the masked
gunman in the video had distinctive fingernails similar to those of
Bellamy. Bellamy argues that the video was not of sufficient
quality for Detective Overman to make these observations. We hold
that, even assuming arguendo the testimony was false, Bellamy fails
in his burden of proving the evidence was material and knowingly
and intentionally used by the State to obtain his conviction.
Bellamy's only remaining argument in this regard is that it
should have been obvious to the State that the above testimony by
Detective Overman was false because it reviewed the video, and the
video is of insufficient quality to make such a determination. If
the video is of insufficient quality, then it would have also been
obvious to the jury that Detective Overman was over-reaching in his
testimony, and thus there is no reasonable likelihood that the
false testimony could have affected their decision. Further, we donot find this evidence sufficient to prove that the State knowingly
and intentionally allowed this testimony to go uncorrected in order
to obtain a conviction. This argument is without merit.
 In Bellamy's fourth argument he contends that the trial
court committed plain error by permitting Detective Overman to
testify regarding Bellamy's prior arrests.
At trial Detective Overman testified that in response to
statements from Randall that he believed the voice of the masked
gunman belonged to a man he knew as Keith, Detective Overman
conducted a search of the police database, and turned up a photo of
Bellamy. Detective Overman testified to the method he used to put
together a photographic line-up, and further testified that he
showed the line-up to Randall, and that Randall identified the
photo of Bellamy as the man he believed robbed the McDonald's.
Bellamy argues that this testimony was improper and requires
a reversal of his conviction because it allowed the jury to infer
that he had prior arrests. Our appellate courts have held on
similar facts that when evidence is admitted for a proper purpose,
the fact that the evidence may have allowed the jury to infer that
the defendant had a prior arrest does not require a new trial. See
State v. Jackson, 284 N.C. 321, 331-35, 200 S.E.2d 626, 633-35
(1973). We hold that this testimony was not improper. Further,
assuming arguendo that it was improper, we hold that the admission
of this testimony does not rise to the level of plain error.
Defendant McCoy's Appeal
 In McCoy's first argument, he contends that the trial
court erred in denying his motion to dismiss the charge of first-degree sexual offense. At trial, the State proceeded against McCoy
on this charge under a theory of acting in concert. The State's
theory at trial was that Bellamy was the masked gunman who actually
robbed the McDonald's, and who perpetrated the sexual assault on
C.B., but that McCoy was his inside help, and that they planned the
robbery together. As a party to the robbery, the State contends
that McCoy is liable as a principal under the theory of acting in
concert for Bellamy's sexual assault on C.B.. The law of acting in
concert in North Carolina is as follows:
If two persons join in a purpose to commit a
crime, each of them, if actually or
constructively present, is not only guilty as
a principal if the other commits that
particular crime, but he is also guilty of any
other crime committed by the other in
pursuance of the common purpose . . . or as a
natural or probable consequence thereof.
State v. Barnes
, 345 N.C. 184, 233, 481 S.E.2d 44, 71 (1997)
quoting State v. Erlewine
, 328 N.C. 626, 637, 403 S.E.2d 280, 286
(1991) (quoting State v. Westbrook
, 279 N.C. 18, 41-42, 181 S.E.2d
572, 586 (1971), death sentence vacated
, 408 U.S. 939, 33 L. Ed. 2d
In the instant case, the State did not argue at
trial, and does not argue on appeal, that the sexual assault was
done in pursuance of the common purpose of the robbery with a
dangerous weapon. The record is completely devoid of evidence that
the defendants discussed any potential sexual assault prior to the
robbery. The State argues that the sexual assault was a natural
or probable consequence thereof. Whether a sexual assault is a
natural or probable consequence of a robbery with a dangerous
weapon of a fast food restaurant is a question of first impression
in North Carolina. The State asserts that any sexual assault perpetrated in the
course of any robbery with a dangerous weapon is a natural or
probable consequence thereof. Clearly, a murder committed during
the course of a robbery with a dangerous weapon is normally a
natural or probable consequence of that robbery with a dangerous
weapon. See State v. Dudley
, 151 N.C. App. 711, 714, 566 S.E.2d
843, 846 (2002). Conversely, a murder to conceal a previous arson
might not be such a consequence. See
Everritt v. State
, 588 S.E.2d
691, 693 (Ga. 2003)
. The question is one of foreseeability: if one
takes the property of another at the point of a loaded gun, the
violent use of that gun is a foreseeable consequence. See
States v. Johnson
, 730 F.2d 683, 690 (11th Cir. 1984);
588 S.E.2d 691
; People v. Hickles
, 56 Cal. App. 4th 1183, 1193-94
(Cal. Ct. App., 1997);
State v. Linscott
, 520 A.2d 1067, 1069-70
Some jurisdictions have determined that whether a
consequence of a robbery with a dangerous weapon was natural or
probable is judged by an objective standard. See
People v. Nguyen
21 Cal. App. 4th 518, 531, 26 Cal. Rptr. 2d 323, 331 (1993)
issue does not turn on the defendant's subjective state of mind,
but depends upon whether, under all of the circumstances presented,
a reasonable person in the defendant's position would have or
should have known that the charged offense was a reasonably
foreseeable consequence of the
Our Supreme Court has expressly rejected the concept that for
a defendant to be convicted of a crime under an acting in concert
theory, he must possess the mens rea
to commit that particular
, 345 N.C. 184, 481 S.E.2d 44 (overruling State v.Blankenship
, 337 N.C. 543, 447 S.E.2d 727 (1994) and
, 342 N.C. 623, 466 S.E.2d 278 (1996)). Based upon the
holding in Barnes
, it would not be appropriate to adopt a standard
based upon the defendant's subjective state of mind or intent.
Rather, the appropriate standard for evaluating whether a crime was
a reasonable or probable consequence of a defendant's joint purpose
should be an objective one.
We decline to adopt a per se
rule that any sexual assault
committed during the course of a robbery is a natural or probable
consequence of a planned crime. Rather, this determination must be
made on a case by case basis, upon the specific facts and
circumstances presented. See
State v. Trackwell
, 458 N.W.2d 181,
183-84 (Neb. 1990).
The issue in the instant case is whether the
sex offense Bellamy committed was a natural or probable consequence
of the robbery with a dangerous weapon of the McDonald's.
Natural has many meanings, but the most
apposite dictionary definition is in
accordance with or determined by nature. A
natural consequence is thus one which is
within the normal range of outcomes that may
be expected to occur if nothing unusual has
intervened. We need not define probable,
except to note that, even standing alone, this
adjective sets a significantly more exacting
standard than the word possible.
Accordingly, if we accord to the words of our
cases their ordinary everyday meaning, it is
not enough for the prosecution to show that
the accomplice knew or should have known that
the principal might conceivably commit the
offense which the accomplice is charged . . .
Roy v. United States
, 652 A.2d 1098, 1105 (D.C. 1995); see also
Howell v. State
, 339 So. 2d 138, 140 (Ala. Crim. App. 1976)
. Concerning the foreseeability of robbery turning into a sexual
offense, the California Court of Appeals has stated:
Robbery is a crime that can be committed in
widely varying circumstances. It can be
committed in a public place, such as on a
street or in a market, or it can be committed
in a place of isolation, such as in the
victim's home. It can be committed in an
instant, such as in a forcible purse
snatching, or it can be committed over a
prolonged period of time in which the victim
is held hostage. During hostage-type robberies
in isolated locations, sexual abuse of victims
is all too common. . . . When robbers enter
the home, the scene is all too often set for
other and more dreadful crimes such as that
committed on [the victim] in this case. In the
home, the victims are particularly weak and
vulnerable and the robber is correspondingly
secure. The result is all too often the
infliction of other crimes on the helpless
victim. Rapes consummated during the robbery
of a bank or supermarket appear to be a
rarity, but rapes in the course of a
residential robbery occur with depressing
, 21 Cal. App. 4th at 532-33 (internal citation omitted).
case, the California Court of Appeals held that though
in general a sexual assault in the course of an robbery of a
business would not be foreseeable, on particular facts it could be.
Specifically, they held that a sexual assault was a natural or
probable consequence of a robbery where:
The defendants and their cohorts chose to
commit robberies in businesses with a sexual
aura, both from the types of services they
held themselves out as providing and from the
strong suspicion, repeatedly expressed by the
participants at the trial, that they were
actually engaged in prostitution. The
businesses were arranged much like a
residence, with separate rooms furnished as
bedrooms might be. The businesses operated
behind locked doors, which both added to their
sexual aura and gave the robbers security
against intrusion or discovery by outsiders. The robbers went to the businesses in
sufficient numbers to easily overcome any
potential resistance and to maintain control
over the victims for as long as they desired.
. at 533.
We agree that in certain factual circumstances a
sexual assault in the course of a robbery of a business may be a
natural or probable circumstance, but that it is less likely to be
so than in the context of a robbery taking place in a home.
In the instant case, Bellamy entered McDonald's at around
11:30 at night. Though that particular McDonald's was closed (the
interior closed at 10:00 p.m. and the drive-thru closed at 11:00
p.m.), in light of the fact that many McDonald's stay open later
than 11:30 p.m., it would not be unusual for prospective customers
to arrive at or after 11:30. The very public nature of a fast food
restaurant creates a significant risk that the masked gunman or the
employees lying on the floor inside might be noticed by someone
outside. This is a fact of which McCoy, as an employee, would have
been well aware. McCoy was also aware that there were security
cameras in the store recording events during the robbery, and that
there were silent alarms which other employees might have activated
before Bellamy obtained control of the employees. In light of
these facts, a reasonable person in McCoy's position would expect
Bellamy to get in and out of the restaurant as quickly as possible
to avoid capture or recognition. On these facts, and in this kind
of a public business, we cannot find that a reasonable person in
McCoy's position would have foreseen that Bellamy would take the
time to deviate from the planned robbery to commit this type of
bizarre sexual assault on C.B. It was the State's burden to prove
beyond a reasonable doubt that this sexual assault was a naturaland probable result of the robbery with a dangerous weapon, and it
has failed to meet this burden. The trial court erred in failing
to dismiss the first-degree sexual offense charge against McCoy.
We reverse judgment on the conviction under 02 CRS 23434 and remand
McCoy's case to the trial court for resentencing on a single count
of robbery with a dangerous weapon.
 In McCoy's seventh argument he contends that the trial
court erred in joining Bellamy's and McCoy's cases for trial, and
in denying McCoy's motions to sever. We disagree.
N.C.G.S. § 15A-926(b)(2)(a) provides for
joinder of defendants where, as here, the
State seeks to hold each defendant accountable
for the same offenses. The propriety of
joinder depends upon the circumstances of each
case and is within the sound discretion of the
trial judge. Absent a showing that a
defendant has been deprived of a fair trial by
joinder, the trial judge's discretionary
ruling on the question will not be disturbed.
State v. Nelson
, 298 N.C. 573, 586, 260 S.E.2d
629, 640 (1979), cert. denied sub nom. Jolly
v. North Carolina
, 446 U.S. 929, 64 L. Ed. 2d
282, 100 S. Ct. 1867 (1980).
State v. Pickens
, 335 N.C. 717, 724, 440 S.E.2d 552, 556 (1994).
The test is whether the conflict in defendants' respective
positions at trial is of such a nature that, considering all of the
other evidence in the case, defendants were denied a fair trial.
G.S. 15A-927(c)(2). State v. Nelson
, 298 N.C. 573, 587, 260 S.E.2d
629, 640 (1979).
In the instant case,
the events from which all defendants were
charged clearly were part of the same
transaction and were so closely connected that
it would be difficult to separate proof of one
charge from proof of the others. We perceive
no unfairness in the conduct of defendant's
with his co-defendants. Thus, there isno error in the joinder for trial of all
State v. Melvin
, 57 N.C. App. 503, 505, 291 S.E.2d 885, 887 (1982)
The conflict in defendants' respective positions
at trial, to the extent there was any, was minimal. Defendants
were not each claiming the other was the guilty party as may often
occur when two defendants are tried for the same crimes. In this
case both defendants claimed that they were innocent individually,
and neither accused the other of a crime. Though McCoy argues in
his brief that certain evidence prejudicial to him was admitted at
trial that would not have been admitted had the trials been
severed, we have either determined that the contested evidence did
not prejudice McCoy, or that McCoy has failed to properly preserve
objection to the evidence and it is therefore not before us for
consideration. We hold that defendant has failed to show that he
was deprived of a fair trial by joinder, therefore, the trial
judge's discretionary ruling on the question will not be disturbed.
This argument is without merit.
 Because defendants have not argued their other
assignments of error in their briefs, these assignments of error
are deemed abandoned. N.C. R. App. P. Rule 28(b)(6) (2003).
NO ERROR IN PART, REVERSED AND REMANDED IN PART.
AS TO DEFENDANT BELLAMY, JUDGMENT ARRESTED ON ONE COUNT OF
ROBBERY WITH A DANGEROUS WEAPON (02 CRS 23396), REMANDED FOR
AS TO DEFENDANT McCOY, JUDGMENT ARRESTED ON ONE COUNT OF
ROBBERY WITH A DANGEROUS WEAPON (02 CRS 23435), CONVICTION FOR
FIRST-DEGREE SEXUAL OFFENSE REVERSED, REMANDED FOR
Judges WYNN and HUDSON concur.
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