Appeal by defendant from judgment entered 7 September 2004 by
Judge John O. Craig, III in Superior Court, Guilford County. Heard
in the Court of Appeals 28 November 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General T. Lane Mallonee, for the State.
John T. Hall for defendant.
Hassell Lee Corum (defendant) was convicted of robbery with a
dangerous weapon and sentenced to a term of 132 months to 168
months in prison. At trial, William Earl Menikheim (Menikheim)
testified that in October or November 2003, he and defendant spent
part of one day drinking alcohol together at defendant's house.Menikheim further testified that he and defendant decided to drive
in Menikheim's vehicle to get more beer around 8:00 p.m. or 9:00
p.m. While they were driving to get more beer, they decided to rob
Hilltop Grocery and Hardware (the store) in Guilford County.
Menikheim testified that he parked his vehicle beside the
store and went inside "to get a beer and see who was working."
Menikheim returned to his vehicle and told defendant that "there
was an older lady working and nobody else was in [the store]."
Menikheim testified he and defendant then left the store, drove
around a little while, and returned to the store.
Menikheim testified he let defendant "out [of the car] down
the road" from the store. Menikheim then drove to the store and
parked in front. Menikheim entered the store and engaged the clerk
in conversation. Menikheim told the clerk he was waiting for his
brother. Menikheim testified he waited about five or ten minutes.
He further testified as follows:
[Defendant] came in. You know. Held her up
with the knife. Told her that -- to open up
the cash register. And she was hesitant for a
little while. So he turned the knife onto me
and said, if she don't open it, I'll cut him.
Then she opened up the drawer. [Defendant]
grabbed the cash drawer and then [ran] out
[of] the store.
Menikheim also testified that defendant wore a ski mask and tan
gloves and used a big "chef cook knife" during the robbery.
Menikheim testified that after the robber left the store, the
clerk asked him to "run out" to see what vehicle the robber was
driving. Menikheim went outside and saw defendant run behind the
store. Menikheim returned and told the clerk the robber was onfoot. Menikheim told the clerk he had been drinking and did not
want to talk to the police; Menikheim then left in his car.
Menikheim testified he picked up defendant and the two of them got
some beer and returned to defendant's house.
Cynthia Crouse (Ms. Crouse) testified she was working as a
clerk at the store on 3 November 2003. Ms. Crouse testified a man
came into the store, bought a beer and told her he was waiting for
his brother. Ms. Crouse said the man waited a few minutes and then
left. Ms. Crouse said the man returned and carried on a
conversation with her. Ms. Crouse further testified that
a few minutes later this guy came running in
with a hooded -- or a hood on and knife. And
said open the drawer. And I sort of
hesitated, you know, a minute. And he said
open the drawer. You want me to take out your
buddy over here, like that, and shook the
knife at him. And then kind of -- well,
doesn't matter what it seemed to me. But
anyway, then I opened the drawer, and he
reached in and grabbed the cashier drawer,
took it out, and left.
Ms. Crouse testified that the robber was just across the counter
from her when he brandished the knife at Menikheim. Ms. Crouse
testified the robber had on a "dark blue, hood jacket and covered
his face[,]" and that the robber wore white gloves.
Andrea Azelton (Azelton), an investigator with the Randolph
County Sheriff's Office, testified she searched defendant's house
on 21 November 2003 and found a blue ski mask and a work glove in
an air conditioning vent in defendant's house.
Clyde Staley (Staley) testified concerning a prior robbery
allegedly committed by defendant. Staley testified that he wasworking as a clerk at the Quick Chek convenience store in
Franklinville, North Carolina on 1 November 2003. Staley testified
that a man wearing a blue ski mask and tan gloves and brandishing
a large knife came into the Quick Chek convenience store on the
night of 1 November 2003. The man walked up to the counter and
"demanded the money or [Staley's] life." The man grabbed the money
and left. Staley identified defendant as the man who had robbed
him on 1 November 2003.
 Defendant first argues the trial court erred by denying
his motion to dismiss the charge of robbery with a dangerous weapon
because there was insufficient evidence that defendant endangered
or threatened the life of Ms. Crouse by the use of a dangerous
weapon. Defendant contends that because the use of the knife was
a "sham" and was directed at Menikheim, Ms. Crouse's life was not
endangered or threatened. The elements of robbery with a dangerous
weapon are "(1) an unlawful taking or an attempt to take personal
property from the person or in the presence of another, (2) by use
or threatened use of a firearm or other dangerous weapon, (3)
whereby the life of a person is endangered or threatened." State
, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998). See also
N.C. Gen. Stat. § 14-87(a) (2005).
In deciding a motion to dismiss for insufficiency of the
evidence, a trial court must determine "whether there is
substantial evidence of each essential element of the offense
charged and of the defendant being the perpetrator of the offense." State v. Vause
, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991).
"Substantial evidence is relevant evidence that a reasonable mind
might accept as adequate to support a conclusion." State v. Vick
341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). If substantial
evidence exists, the motion to dismiss should be denied. Id
584, 461 S.E.2d at 663. On appeal, we must view the evidence in
the light most favorable to the State, drawing all inferences in
the State's favor. State v. Fritsch
, 351 N.C. 373, 378-79, 526
S.E.2d 451, 455, cert. denied
, 531 U.S. 890, 148 L. Ed. 2d 150
(2000). It is within the province of the jury to resolve any
contradictions and discrepancies in the evidence. Id
. at 379, 526
S.E.2d at 455.
Defendant in the case before us contends he did not use the
knife to endanger or threaten the life of Ms. Crouse. In State v.
, 279 N.C. 455, 183 S.E.2d 546 (1971), the defendant was
convicted of armed robbery. Id
. at 457, 183 S.E.2d at 547. The
State presented testimony from Grover Lowery (Lowery) that the
defendant walked up to Lowery's truck with a knife in his hand,
demanded money, and took money from Lowery's pocket. Id
. at 456,
183 S.E.2d at 547. Lowery further testified the defendant demanded
Lowery's billfold, and Lowery told the defendant he did not have a
. Lowery then began to close the door of his truck
and the defendant struck at Lowery with the knife. However, the
defendant struck the glass with the knife and Lowery was able to
get away. Id
. at 456-57, 183 S.E.2d at 547.
Lowery also testified he was not scared or fearful for hislife during the robbery. Id
. at 457, 183 S.E.2d at 547. On
appeal, the defendant argued that Lowery's lack of fear negated the
defendant's guilt. Id
. However, our Supreme Court held that
"[t]he jury might infer that one who engages in the perpetration of
a robbery by means of an opened knife intends to use the knife to
inflict injury to the extent necessary or apparently necessary to
accomplish his purpose." Id
. at 459, 183 S.E.2d at 548.
Therefore, the Court upheld the defendant's conviction. Id
Likewise, in the present case, the jury could have inferred
that defendant posed a danger to the life of Ms. Crouse. Ms.
Crouse testified that defendant "shook the knife at [Menikheim]"
and threatened to "take out [Menikheim]" if Ms. Crouse did not open
the cash drawer. Menikheim also testified that defendant "turned
the knife onto [Menikheim]" and defendant said he would "cut
[Menikheim]" if Ms. Crouse did not open the cash drawer. This
evidence was sufficient to enable the jury to infer that Ms.
Crouse's life was endangered and threatened by defendant's use of
The present case is also analogous to State v. Thomas
, 85 N.C.
App. 319, 354 S.E.2d 891 (1987). In Thomas
, the defendant was
convicted of two counts of robbery with a dangerous weapon. Id.
319-20, 354 S.E.2d at 892. The evidence showed that Mr. and Mrs.
Nicoll encountered the defendant as they walked toward their
apartment building. Id
. at 320, 354 S.E.2d at 892. While Mrs.
Nicoll stood about one foot away from Mr. Nicoll, the defendant
held a shotgun about nine inches from Mr. Nicoll's face and reachedfor Mr. Nicoll's notebook. When Mr. Nicoll said he had no money
there, the defendant hit Mr. Nicoll in the face and Mr. Nicoll fell
to the ground. The defendant then straddled Mr. Nicoll and took
Mr. Nicoll's wallet and watch. Id
Mrs. Nicoll went toward her husband, and her purse slipped off
her shoulder onto her arm. The defendant took Mrs. Nicoll's purse
and left. The defendant "did not strike Mrs. Nicoll, never pointed
the gun at her and never spoke to her." Id
On appeal, the defendant argued there was insufficient
evidence he robbed Mrs. Nicoll with a dangerous weapon because
there was no evidence he took Mrs. Nicoll's purse by threatening or
endangering her life with a firearm. Id
. at 321, 354 S.E.2d at
892-93. However, our Court held as follows:
[The] [d]efendant's assault of Mr. Nicoll in
order to take [Mr. Nicoll's] property spoke
louder than any words of threat could have
spoken to Mrs. Nicoll.
Mrs. Nicoll was aware of [the]
defendant's taking her purse from her arm; she
did not resist. She had been standing about a
foot from [Mr. Nicoll] during [the]
defendant's assault upon [Mr. Nicoll]. While
standing there, [Mrs. Nicoll] had seen [the]
defendant reach for [Mr. Nicoll's] notebook[,]
then knock [Mr. Nicoll] to the ground. [Mrs.
Nicoll] had then seen [the] defendant take
[Mr. Nicoll's] watch and wallet. It is clear
from this evidence that [the] defendant made a
threat to Mrs. Nicoll's life.
. at 321-22, 354 S.E.2d at 893.
In the present case, defendant similarly did not verbally
threaten Ms. Crouse's life, and did not waive the knife at Ms.
Crouse. However, defendant did threaten Menikheim's life, whichcaused Ms. Crouse to open the cash drawer. Additionally, Ms.
Crouse testified defendant was just across the counter from her
when he brandished the knife at Menikheim. When viewed in the
light most favorable to the State, this evidence was sufficient to
support a verdict of guilty of robbery with a dangerous weapon.
Therefore, we overrule defendant's assignment of error.
 Defendant next argues that in violation of N.C. Gen. Stat.
§ 8C-1, Rule 404(b), the trial court erred by allowing the State to
introduce evidence that defendant committed a prior robbery.
Specifically, defendant argues there was "insufficient evidence of
relevant and unusual facts common to both the charge on trial and
the prior alleged act." N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005)
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.
"Rule 404(b) is a rule of inclusion, subject to the single
exception that such evidence must be excluded if its only
value is to show that [a] defendant has the propensity or
disposition to commit an offense of the nature of the crime
charged." State v. Berry
, 356 N.C. 490, 505, 573 S.E.2d 132, 143
(2002). In order for evidence to be admissible under Rule 404(b),
it "must be offered for a proper purpose, must be relevant, must
have probative value that is not substantially outweighed by thedanger of unfair prejudice to the defendant, and, if requested,
must be coupled with a limiting instruction." State v. Haskins
104 N.C. App. 675, 679, 411 S.E.2d 376, 380 (1991), disc. review
, 331 N.C. 287, 417 S.E.2d 256 (1992).
In the present case, the State argues the evidence was
admissible under Rule 404(b) to show that a common scheme or plan
existed between the two crimes and to show the identity of
defendant. The State also argues there were sufficient
similarities between the two crimes to indicate defendant committed
both crimes. We agree.
"[E]vidence that [a] defendant committed similar acts which
are not too remote in time may be admitted to show that these acts
and those for which the defendant is being tried all arose out of
a common scheme or plan on the part of the defendant." State v.
, 322 N.C. 826, 828, 370 S.E.2d 359, 360-61 (1988). Also,
evidence of a prior bad act is admissible to establish the identity
of a defendant. N.C. Gen. Stat. § 8C-1, Rule 404(b); State v.
, 348 N.C. 510, 521, 501 S.E.2d 57, 64-65 (1998). However, in
order to be relevant, "there must be shown some unusual facts
present in both crimes or particularly similar acts which would
indicate that the same person committed both crimes." State v.
, 309 N.C. 102, 106, 305 S.E.2d 542, 545 (1983).
Defendant's alleged robbery of the Quick Chek convenience
store was sufficiently similar to the charged robbery at issue in
the case before us to allow admission of Staley's testimony. The
robberies occurred in neighboring counties at night within a two-day period. Both robberies occurred at convenience stores. Also,
the perpetrator of both robberies wore gloves and a blue hood or
mask of similar description. Accordingly, the trial court did not
err by allowing Staley's testimony and we overrule this assignment
Although defendant attempts to argue that the probative value
of the evidence concerning the Quick Chek convenience store robbery
was substantially outweighed by the danger of unfair prejudice,
defendant does not allege any prejudice. Additionally, defendant
did not assign error to this issue in the record on appeal, and we
do not review it. N.C.R. App. P. 10(a).
 Defendant argues the trial court erred when it "directed
the bailiff to conduct ex parte
communication of instructions to
the jury." N.C. Gen. Stat. § 15A-1234(d) (2005) directs that
"[a]ll additional instructions must be given in open court and must
be made a part of the record." N.C. Gen. Stat. § 15A-1236(c)
If the jurors are committed to the charge of
an officer, he must be sworn by the clerk to
keep the jurors together and not to permit any
person to speak or otherwise communicate with
them on any subject connected with the trial
nor to do so himself, and to return the jurors
to the courtroom as directed by the judge.
In State v. Gay
, 334 N.C. 467, 434 S.E.2d 840 (1993), the
defendant argued the trial court erred by directing the bailiff to
inform the jurors they were on break and they should continue to
abide by the trial court's earlier instructions. Id
. at 482, 434S.E.2d at 848. The defendant's attorney approved of this procedure
and declined the opportunity to be heard on the matter. Id
Court held the subject matter of the communication did not amount
to an instruction as to the law and did not relate to the
defendant's guilt or innocence. The Court also held that the
subject matter of the communication did not implicate the
defendant's right of confrontation. Id
. The Court emphasized the
defendant's approval of the shorthand procedure and found no
reversible error. Id
. at 482-83, 434 S.E.2d at 848.
In the present case, the jury delivered the following written
question to the trial court through the bailiff: "Was photo of
[defendant] included in lineup for Ms. Crouse?" Defendant's
counsel requested the trial court to instruct the jurors to "rely
on their own recollections" and the trial court agreed. The trial
court said it would prefer to send a written response to the jurors
rather than having the jurors return to the courtroom, and asked
defendant's counsel and the State if they had any objections to
Both defendant's counsel and the State agreed to the shorthand
procedure. The trial court then had defendant brought into the
courtroom to make certain defendant had no objection to the
shorthand procedure. Defendant's counsel consulted with defendant
and defendant's counsel said: "Your Honor, [defendant] is satisfied
with that way of handling it." The trial court then wrote its
response on the same piece of paper on which the jury's question
was written, as follows: "You must rely on your own recollection asto what the evidence showed." The trial court instructed the
bailiff to deliver the note to the jury.
As in Gay
, the substance of the communication in the present
case did not implicate defendant's right of confrontation. As in
, defendant in the present case explicitly approved of the
procedure. Moreover, it is clear that defendant's counsel approved
of the substance of the communication because defendant's counsel
requested the trial court to make the instruction to the jury.
Accordingly, we find no reversible error and overrule this
assignment of error.
Chief Judge MARTIN and Judge ELMORE concur.
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