An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1647


Filed: 15 February 2005


         v.                        Wake County
                                No. 02 CRS 16866-7

    Appeal by defendant from judgment entered 31 January 2003 by Judge A. Leon Stanback in Wake County Superior Court. Heard in the Court of Appeals 25 October 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Sarah Y. Meacham, for the State.

    Joal H. Broun, for defendant-appellant.


    Defendant was convicted of robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. The convictions were consolidated for judgment and defendant was sentenced to an active term of a minimum of 103 months and a maximum of 133 months.
    The State presented evidence tending to show that during the early morning hours of 15 December 2001, Hulan Pickett, manager of a McDonald's Restaurant located on Timber Drive in Garner, closed the restaurant and got into his truck. A man pointed a gun at Pickett and ordered him to return to the restaurant. Inside the restaurant, Pickett opened the restaurant safe and the gunman removed the deposit bag containing approximately $3,000 whileanother man stood at the counter serving as a lookout. After taking the money, the two men fled the restaurant.
    Timothy Collins, Anthony Jones and Toussaint Washington testified that on the evening of 14 December 2001, they visited defendant at his mobile home and discussed robbing the McDonald's Restaurant. They planned for defendant to drive them to the restaurant, for Collins to hold the gun, and for Jones and Washington to be the lookouts. Washington, however, left the mobile home to visit a friend while the remaining three executed the plan. Defendant drove to the restaurant. Collins and Jones got out of the vehicle and defendant parked across the street behind an eighteen-wheel trailer. A man came out of the restaurant and got into a truck. Collins, holding a gun, ordered the man to return to the restaurant. The man gave Collins the money in the safe. Collins and Jones ran and jumped into defendant's waiting vehicle. The three of them returned to defendant's mobile home and divided the money, approximately $3,000, evenly among them. Washington was waiting at defendant's mobile home when they returned.
    Collins, Jones and Washington also testified that on the evening of 9 December 2001, Washington drove Collins, Jones and a fourth person, Eric Dickens, in search of a place to rob. As they passed a Hardee's Restaurant, they saw a single automobile parked in the parking lot. They assumed the vehicle belonged to the manager. When they saw a woman exit the restaurant, Collins and Dickens approached her, pointed a gun at her, and forced her toreturn to the restaurant and open the safe. They took approximately $1,700 from the safe and fled. They rode to defendant's mobile home, where they divided the money between the four of them in defendant's presence.
    Collins and Jones also testified that they subsequently robbed a Pizza Hut restaurant and that Collins also subsequently robbed a Burger King restaurant. Collins also testified that he purchased an automobile with the proceeds of the robberies and that defendant agreed to have the vehicle titled in his name.
    The sole issue on appeal is whether the court committed plain error by allowing Collins, Jones and Washington to testify without objection regarding other robberies which did not involve defendant in their perpetration. To establish plain error in the admission of evidence without objection, the defendant must show that the admission of the evidence had a probable impact upon the jury's finding of guilt or that the error is so fundamental that justice could not have been done. State v. Black, 308 N.C. 736, 741, 303 S.E.2d 804, 807 (1983). Because the evidence in question does not impute defendant in the commission of the other offenses, Rule 404(b) does not apply to exclude it and the evidence is properly admitted if it is otherwise relevant. State v. Holmes, 120 N.C. App. 54, 66, 460 S.E.2d 915, 922 (1995). We conclude that the evidence was properly admitted to show common scheme or plan and knowledge. We do not find plain error.
    No error.
    Judges CALABRIA and LEVINSON concur.
    Report per Rule 30(e).

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