STATE OF NORTH CAROLINA
v. Guilford County
GEORGE DAVID HENRY, JR. 03CRS105733-35
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Elizabeth F. Parsons, for the State.
Charns & Charns, by D. Tucker Charns, for defendant-appellant.
George David Henry, Jr. (defendant) was charged with four
counts of robbery with a dangerous weapon occurring on the four
separate dates of 16 September 2003, 11 October 2003, 4 November
2003, and 13 November 2003. The State filed a motion to join the
four charges for trial. Defendant moved to sever the armed robbery
occurring on 13 November 2003 from the remaining three counts. The
trial court denied defendant's motion and allowed the State to join
all four charges. For the reasons stated herein, we find no error.
The State's evidence at trial tended to show that between 9:00 p.m. and 10:00 p.m, on 16 September 2003, Toshia Withers (Withers) left the West Market Street store in Greensboro todeposit the night bag at First Citizens Bank. Withers drove her vehicle to the bank, which was in the same shopping center as the store. Withers exited her vehicle and stepped onto the sidewalk when a man, who was dressed in black with a closed black hoodie, such that only his eyes, nose and mouth could be seen, approached her. The man brandished a gun and said, '[d]rop the bag and get back in the car.' After Withers dropped the bag containing about $1,200.00 in cash and checks, the man took the bag and left in a Ford Expedition.
On the night of 11 October 2003, Laura Ann Cohen (Cohen), a manager for Bear Rock Café, prepared that night's deposit bag containing about $2,000.00 in cash and checks. Cohen drove to the Bank of America, which was in the same shopping center as the café, parked next to the depository and exited her vehicle. A man dressed in black with a hooded sweatshirt and red bandana told Cohen, '[g]ive me the bag. Give me the money.' The man had a gun at his side. Cohen screamed, threw the deposit bag at the man, drove away and called the police. At approximately 10:00 p.m. on 4 November 2003, Diane Stetina (Stetina) and Farah Ali (Ali) drove to Bank of America to deposit that night's deposit of about $2,000.00 for Victoria's Secret. At the bank, both women exited the vehicle. When Stetina heard Ali scream, Stetina turned and saw a man wearing a black hooded sweatshirt and matching sweat pants. The man, who had his hand in a pocket, stated, '[d]rop the money. . . . Get in the car.' On the night of 13 November 2003, Elmia Hodge (Hodge) drove to the Bank of America on Holden Road to deposit the night deposit for Allstate Insurance. The deposit consisted of about $3,000.00 in cash and checks. As she exited her vehicle, Hodge observed a man walking towards her. Hodge walked away and then began to run. When she looked back, she saw the man brandish a knife. The man told Hodge to '[d]rop it.' The man grabbed the bag and she fell. Hodge later told police that her assailant was wearing a black or navy blue sweat suit with a hooded top.
A jury found defendant guilty of three counts of robbery with a dangerous weapon and one count of common law robbery. The trial court found defendant had twenty-two prior record level points and determined defendant to be a prior record level VI. The trial court sentenced defendant to three consecutive sentences of 146 to 185 months imprisonment for the armed robbery convictions and a consecutive sentence of twenty-nine to thirty-five months for the common law robbery conviction. Defendant appeals.
The first two assignments of error defendant brings forward in his brief deal with the incomplete recordation of his trial. Defendant asserts he received ineffective assistance of counsel because his attorney failed to request recordation of the jury voir dire, opening statements, and closing arguments. We disagree.
The test for ineffective assistance of counsel is the same under both the United States Constitution and the North Carolina Constitution. State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985). When a defendant attacks his counsel on the basisthat counsel was ineffective, he must show that his counsel's conduct fell below an objective standard of reasonableness. Id. at 561-62, 324 S.E.2d at 248. To meet this burden, defendant must satisfy a two-part test set out in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984).
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. at 687, 80 L. Ed. 2d at 693. Here, defendant does not cite to any error that occurred in the unrecorded portions of the trial. Thus, even assuming arguendo that counsel's performance was deficient for failure to request that the proceedings be recorded, defendant shows no prejudice. Id. This assignment of error is without merit.
Defendant next asserts that the trial court erred by failing to sua sponte order recordation of closing arguments, depriving him of meaningful appellate review and the effective assistance of appellate counsel. Although N.C. Gen. Stat. § 15A-1241(b) provides that upon motion of any party or the court, the trial court may order recordation of closing arguments, defendant cites no authority for his argument that the trial court was required to order the closing argument be recorded. Furthermore, as noted above, defendant has cited no error that occurred in the unrecordedportions of the trial and, therefore, has failed to show how he was prejudiced. This assignment of error is without merit.
Defendant also contends the trial court erred in joining for trial all four charges. Defendant argues the last of the four robberies should not have been joined because it was too remote in time from the first robbery and because the victim did not identify anyone from a photographic lineup. The consolidations of charges is governed by N.C. Gen. Stat. § 15A-926, which states:
(a) Joinder of Offenses. -- Two or more offenses may be joined in one pleading or for trial when the offenses, whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan. Each offense must be stated in a separate count as required by G.S. 15A-924.
N.C. Gen. Stat. § 15A-926(a) (2003). We note, however, that defendant failed to renew his motion for severance at trial. This Court has held that a defendant's failure to renew a motion to sever as required by G.S. 15A-927(a)(2) waives any right to severance and that on appeal the Court is limited to reviewing whether the trial court abused its discretion in ordering joinder at the time of the trial court's decision to join. State v. McDonald, 163 N.C. App. 458, 463-64, 593 S.E.2d 793, 797, disc. review denied, 358 N.C. 548, 599 S.E.2d 910 (2004).
The joinder of criminal charges for trial requires only that there be some sort of 'transactional connection' between them. State v. Bracey, 303 N.C. 112, 117, 277 S.E.2d 390, 394 (1981). Here, all four robberies targeted female victims who were managersor employees of businesses making night deposits at bank drop boxes, and the four robberies were committed within a two-month period by a male wearing a dark-colored hood. This pattern of operation was sufficient to establish the requisite connection between the four cases. Accordingly, the trial court did not abuse its discretion in electing to consolidate the charges.
Finally, defendant assigns plain error to the trial court sentencing him as a prior record level VI because the State failed to prove his record. Defendant's reliance upon plain error is misplaced, however, for our appellate courts have applied plain error review only to jury instructions and evidentiary rulings. State v. Childress, 321 N.C. 226, 234, 362 S.E.2d 263, 268 (1987). As a result, plain error review is inapplicable to this last argument. In any event, this Court notes that defense counsel stipulated as to defendant's prior convictions and such a stipulation is considered reliable proof of prior convictions. See N.C. Gen. Stat. § 15A-1340.14(f) (2003); see also State v. Eubanks, 151 N.C. App. 499, 504-06, 565 S.E.2d 738, 742-43 (2002) (statements by defense counsel that he had seen the State's worksheet and had no objection to it could reasonably be construed as a stipulation by defendant that he had been convicted of the charges listed on the worksheet). This assignment of error is without merit.
Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).
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