An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1183


Filed: 6 September 2005

                        New Hanover County            
    v.                        Nos. 03 CRS 828
                                03 CRS 831-832
DONQUILL LAMONT SUELL,                03 CRS 2123
        Defendant.                03 CRS 2416
                                03 CRS 2425-2432

    Appeal by defendant from judgments entered 14 April 2004 by Judge Charles H. Henry in New Hanover County Superior Court. Heard in the Court of Appeals 11 May 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Daniel S. Johnson, for the State.

    Geoffrey W. Hosford for defendant-appellant.

    GEER, Judge.

    Defendant Donquill Lamont Suell appeals his convictions of 12 counts of robbery with a dangerous weapon and one count of possession of a firearm by a felon. On appeal, defendant argues that (1) there was a fatal variance between the indictments and the evidence offered at trial, (2) the trial court erred in allowing the jury to view exhibits that were not offered into evidence, and (3) the trial court erred under Rule 404(b) in admitting evidence of other robberies not charged in the indictments. After reviewing the record, we hold that defendant received a trial free from prejudicial error.

    The State presented evidence of three robberies and one attempted robbery all occurring in Wilmington, North Carolina during a 26-day period. On the evening of 23 December 2002, four men wearing masks and holding guns entered the Michael Anthony's restaurant and demanded that the people inside get on the floor. One of the men also wore a camouflage jacket. The robbers went through the restaurant and took wallets, cash, and cell phones from customers and employees, ultimately smashing the cell phones. The robbers also took between $200.00 and $300.00 from the cash register and approximately $600.00 from the restaurant's safe.
    On the next evening, 24 December 2002, Malinda Kanoy, a delivery driver for Domino's Pizza, was walking to her car at about 1:15 a.m. when three men came up to her. The men wore masks, one had a hooded sweatshirt, and another had a camouflage jacket. They forced Kanoy to let them inside the Domino's. Upon entering, one of the men pointed a gun and told the employees to go to the back of the store and get on the floor. The robbers forced the employees to open up the safe and they took between $1,400.00 and $1,500.00 in cash. Additionally, the robbers took the employees' cash, destroyed their cell phones, tore the business phones out of the wall, and finally forced the employees into the freezer.
    On 31 December 2002 at about 10:30 a.m., two men entered the South East Community Credit Union wearing masks disguising their faces as well as gas masks. One of the men told the customers to get on the floor, while the other shot a gun in the air. Afterdiscussing whether the tellers had pushed "the button" to notify the police, the robbers sprayed the tellers with mace and left without taking any money from the bank or its customers.
    On 19 January 2003, Paul Giersch, an employee of a Pizza Hut on Oleander Drive, was leaving the restaurant at about midnight to make a delivery when a man wearing a mask approached him, pointed a gun, and told him to go back inside. The two walked back into the Pizza Hut, along with another man who was also wearing a mask and holding a gun. The robbers tore the phones out of the wall and forced the employees onto the floor before taking their cash. The robbers tried to take cash from the store's safe, but it was empty. Eventually, they found a hidden drawer with cash and had one of the employees empty it. Giersch identified defendant as the man who robbed him.
    Because one of the cooks ran out the back of the Pizza Hut and called 911, the police arrived minutes later. Detective Darryl Gronau testified that officers in the area were on alert: because of a reported unsuccessful robbery of a Domino's delivery driver earlier that evening, the police believed another attempt at robbery was likely that night. When Detective David Short arrived at the scene, he saw two men coming out of the back door. When the detective announced that he was a law enforcement officer, both men fled on foot. Short testified he did not pursue the men in order to secure a vehicle found in the parking lot with its engine running. Two cell phones were found in the vehicle, one of which was owned by defendant.    At trial, Anthony Smith, who was also charged in connection with these incidents, testified for the State. Smith confirmed that he, Dennis Smith, and defendant had committed the three restaurant robberies and the attempted robbery of the credit union. Smith also testified about an attempted robbery of a Domino's Pizza on the same night as the robbery of the Pizza Hut. According to Smith, the group's plan was to target pizza delivery businesses in order to obtain money to support their children. Smith provided details of the incidents, including that they wore gloves and masks during the crimes, that they broke the employees' cell phones, and that they took money from the registers and employees' wallets.
    Defendant was charged with 16 counts of robbery with a dangerous weapon, one count of attempted robbery with a dangerous weapon, and one count of possession of a firearm by a felon. Defendant's trial commenced on 5 April 2004 before Judge Charles H. Henry in New Hanover County Superior Court. On 13 April 2004, the jury found defendant guilty of 12 counts of robbery with a dangerous weapon (which comprised nine robberies at Michael Anthony's and three robberies at the Pizza Hut) and possession of a firearm by a felon. The jury could not reach a verdict on (1) four counts of robbery with a dangerous weapon at the Domino's Pizza and (2) the attempted robbery with a dangerous weapon of the credit union. Accordingly, a mistrial was declared on those charges. Defendant was sentenced to seven consecutive terms of 103 to 133 months imprisonment for these crimes.
    Defendant first argues that there was a fatal variance between the indictments for the Pizza Hut robbery and the judge's instructions to the jury. There were three indictments in total for this incident, one for each employee, stating:
        [T]he defendant named above unlawfully, willfully and feloniously did steal, take and carry away the personal property of another, to wit: US Currency, from PIZZA HUT INC., D/B/A/ Pizza Hut, located at 4012 Oleander Dr., Wilmington, NC, when Paul Giersch was present and in attendance. The defendant committed this act by means of an assault consisting of having in his possession and/or threatening the use of a dangerous weapon, to wit: a handgun, whereby the life of Paul Giersch was threatened and endangered.

The other two indictments were identical except for the substitution of the names of the other two employees. The judge instructed the jury that defendant could be found guilty of armed robbery if the jurors found that defendant took property from the individual employees. Defendant argues that this instruction created a fatal variance because defendant was charged with taking the property of Pizza Hut rather than that of the employees, with the result that the jury convicted him of crimes for which he was not charged. We disagree.
    "It is well settled that the evidence in a criminal case must correspond to the material allegations of the indictment, and where the evidence tends to show the commission of an offense not charged in the indictment, there is a fatal variance between the allegations and the proof requiring dismissal." State v. Williams, 303 N.C. 507, 510, 279 S.E.2d 592, 594 (1981) (emphasis added). The question for this Court is not simply whether there is a variance, but whether any variance is material. As the Supreme Court stated in State v. Thompson, 359 N.C. 77, 604 S.E.2d 850 (2004), a variance regarding the owner of stolen property is not material to the charge of armed robbery:
        It is well established that an indictment for armed robbery need not allege that the property taken be laid in a particular person. Likewise, variance between the allegations of the [armed robbery] indictment and the proof in respect of the ownership of the property taken is not material. The gravamen of the offense is the endangering or threatening of human life by the use or threatened use of firearms or other dangerous weapons in the perpetration of or even in the attempt to perpetrate the crime of robbery. An indictment for robbery will not fail if the description of the property is sufficient to show it to be the subject of robbery and negates the idea that the accused was taking his own property.

Id. at 107, 604 S.E.2d at 872 (emphasis added) (internal citations and quotation marks omitted).
    In this case, the only variance arose out of who owned the property stolen: the employees or Pizza Hut. Such a variance is not material, and therefore not fatal, because the essential elements of the crime and the nature of the stolen property were sufficiently described in the indictment to negate any suggestion that defendant was taking his own property. Whether it was the employees' property or the business' property was not material. See State v. Clemmons, 35 N.C. App. 192, 196, 241 S.E.2d 116, 119 (no fatal variance where indictment stated that property was taken from the victim's business and proof at trial showed the propertywas taken from the victim herself), disc. review denied, 294 N.C. 737, 244 S.E.2d 155 (1978). See also State v. Spillars, 280 N.C. 341, 345, 185 S.E.2d 881, 884 (1972) ("[I]t is not necessary that ownership of the property be laid in a particular person in order to allege and prove armed robbery. . . . An indictment for robbery will not fail if the description of the property is sufficient to show it to be the subject of robbery and negates the idea that the accused was taking his own property."). Accordingly, this assignment of error is overruled.
    Defendant next argues that the trial court erred by allowing the jury during deliberations to view exhibits that were not admitted into evidence. Specifically, the jury asked to review State's exhibits 12, 30, 50, and 67, which were witness summaries of stolen personal property from the various alleged crimes. The court allowed the jury to view the summaries in open court, but did not allow the jury to take them back into the deliberation room.
    First, as to State's exhibits 12, 30, and 67, defendant is mistaken. These exhibits were actually admitted. After the parties had rested, but before closing arguments, the State offered exhibit number 12, which was admitted, and then the court sua sponte admitted exhibits 30 and 67. See State v. Jackson, 306 N.C. 642, 653, 295 S.E.2d 383, 389 (1982) ("The trial court has discretionary power to permit the introduction of additional evidence after a party has rested.").    As to the final exhibit, State's exhibit 50, defendant is correct that it was never admitted into evidence. Defendant has not, however, demonstrated any prejudice from the jury's viewing this exhibit. Exhibit 50 purported to list the property taken in the attempted robbery of the credit union, but since the attempted robbery was unsuccessful, the exhibit in fact showed that no property was taken from that location. The jury ultimately was unable to reach a verdict on the charge of attempted armed robbery of the credit union and a mistrial was declared. Thus, the record reveals no prejudice with respect to exhibit 50. This assignment of error is, therefore, overruled.
    Finally, defendant argues that the court erred under Rule 404(b) of the Rules of Evidence when it admitted evidence regarding (1) an attempted robbery of a Domino's Pizza on 19 January 2003 and (2) a robbery of a Papa John's Pizza in August 2000. Rule 404(b) of the North Carolina Rules of Evidence 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) (2003). Rule 404(b) 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 anoffense of the nature of the crime charged." State v. Lloyd, 354 N.C. 76, 88, 552 S.E.2d 596, 608 (2001) (internal quotation marks omitted). Accordingly, evidence of prior bad acts is "'admissible so long as it is relevant to any fact or issue other than the character of the accused'" to commit a similar crime. Id. (quoting State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d 791, 739 (1986)). This rule of inclusion is restrained only "by the requirements of similarity and temporal proximity." State v. Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002). In examining the admission of evidence under 404(b), this Court reviews for an abuse of discretion. State v. Hyatt, 355 N.C. 642, 662, 566 S.E.2d 61, 74 (2002), cert. denied, 537 U.S. 1133, 154 L. Ed. 2d 823, 123 S. Ct. 916 (2003).
    In regard to the attempted robbery of a Domino's Pizza on 19 January 2003, Anthony Smith testified that he and defendant drove to the Domino's on the same night as the Pizza Hut robbery. Upon arrival, the men put on their masks and waited for an employee to leave so they could follow the employee back inside. While waiting, however, a Domino's driver observed them and tried to hit them with his car. Smith broke the window of the car with the butt of his gun, and then he and defendant ran back to their car and left. This evidence is admissible to show a common scheme or plan for robbing pizza businesses on that night, as other testimony showed that later that same evening the same men robbed a Pizza Hut in a similar fashion. See State v. Floyd, 148 N.C. App. 290, 294, 558 S.E.2d 237, 240 (2002) (evidence of an armed robbery during thesame two-week period as the charged offenses was admissible to show "a scheme or plan to commit such offenses during the applicable two-week period"). Additionally, after the Domino's incident took place, the Wilmington Police were put on alert and started increased patrols of the area because they suspected another robbery might occur after the men left the Domino's empty handed. As a result, they were able to interrupt the Pizza Hut robbery and seize the robbers' car containing defendant's cell phone. The evidence of the Domino's attempted robbery thus "serves to enhance the natural development of the facts [and] is necessary to complete the story of the charged crime for the jury." State v. White, 340 N.C. 264, 284, 457 S.E.2d 841, 853, cert. denied, 516 U.S. 994, 133 L. Ed. 2d 436, 116 S. Ct. 530 (1995).
    In addition to the attempted robbery of the Domino's, the State also offered evidence of an armed robbery of a Papa John's pizza delivery business in 2000. Gordon Steagall, who worked for Papa John's at the time, testified that at about 12:30 a.m. on 1 August 2000, he returned from a delivery and knocked on the locked restaurant door to get inside. After another employee let him in, Steagall turned to relock the door and two men outside wearing ski masks yanked the door open, with one pointing a gun in Steagall's face. The robbers told the employees to lie on the floor while they took the employees' personal cash and took money out of the restaurant safe. Detective John Kunak of the Wilmington Police Department testified that defendant was arrested for this incident and pled guilty to common law robbery.     When the evidence of the 2000 armed robbery is compared to that of the other pizza business robberies charged in this case, it shows a modus operandi for committing the armed robberies that supports an identification of defendant as the perpetrator of the 2003 robberies. The similarities between the incidents include: (1) the location robbed (pizza delivery businesses), (2) the time of the robbery (midnight or later), (3) multiple robbers using masks and handguns, (4) a common method for obtaining access to a locked restaurant, and (5) ordering the employees to lie on the floor while taking cash from their wallets and money from the safe. The type and number of similarities support a reasonable inference that the same person committed the earlier and later acts. See State v. Davis, 340 N.C. 1, 14, 455 S.E.2d 627, 633-34 (1995) (noting that evidence of a prior, similar armed robbery was admissible to show intent under Rule 404(b) where in both instances the defendants entered the restaurant armed and waited until near closing to commit the crimes), cert. denied, 516 U.S. 846, 133 L. Ed. 2d 83, 116 S. Ct. 136 (1995); State v. Allred, 131 N.C. App. 11, 18, 505 S.E.2d 153, 158 (1998) (holding that evidence of a robbery committed 10 days earlier was admissible under 404(b) to show modus operandi where both robberies involved two perpetrators and the victims were asked to give up their "stash").
    Defendant argues that the evidence from the Papa John's robbery in 2000 lacks temporal proximity because it occurred two and a half years before the charges in this case. We note, however, that defendant was released from prison for the PapaJohn's robbery in early 2002 _ less than a year before the events of this case. Our Supreme Court has addressed a similar situation:
            Defendant argues that the remoteness in time and location militates against admission of the Connecticut burglaries. Defendant was, however, incarcerated in Connecticut as punishment for those burglaries. He was not released there until     approximately six months before the North Carolina crimes were committed. This incarceration effectively explains the remoteness in time. . . . Remoteness in time is more significant when evidence of another crime is admitted to show that it and the crime being tried both arose out of a common scheme or plan. . . . It would be unlikely, though not inconceivable, that crimes committed several years apart were planned at the same time.

State v. Riddick, 316 N.C. 127, 134, 340 S.E.2d 422, 427 (1986). Based on Riddick, we hold that the trial court did not abuse its discretion in admitting evidence of the 2000 robbery under Rule 404(b).

    No error.
    Judges HUNTER and HUDSON concur.
    Report per Rule 30(e).

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