STATE OF NORTH CAROLINA
v. Wake County
No. 02 CRS 16866-7
RALPH CECIL RAYNOR
Attorney General Roy Cooper, by Assistant Attorney General
Sarah Y. Meacham, for the State.
Joal H. Broun, for defendant-appellant.
TIMMONS-GOODSON, Judge.
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.
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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).