An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 September 2005
STATE OF NORTH CAROLINA
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.
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
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
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
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
character of the accused'" to commit a similar crime. Id.
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.
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
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
Judges HUNTER and HUDSON concur.
Report per Rule 30(e).
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