An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04_1312

NORTH CAROLINA COURT OF APPEALS

Filed: 17 January 2006

STATE OF NORTH CAROLINA

v .                         Guilford County
                            Nos.    03 CRS 96857
JULIUS KEVIN EDWARDS,                04 CRS 23051
        Defendant.

    Appeal by defendant from judgment entered 20 July 2004 by Judge John O. Craig, III, in Guilford County Superior Court. Heard in the Court of Appeals 18 May 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Jane T. Hautin, for the State.

    James M. Bell for defendant-appellant.

    GEER, Judge.

    Defendant Julius Kevin Edwards appeals from his conviction for armed robbery, arguing that the trial court erred in denying his motion to dismiss based on the sufficiency of the evidence. Because the record contains ample evidence supporting the elements of armed robbery, we uphold the trial court's denial of the motion to dismiss. Defendant also pled guilty to having attained the status of habitual felon, but contends on appeal that the trial court improperly coerced him into that guilty plea. Based on our review of the record, we disagree.

Facts

    The State's evidence tended to show the following. On 9 September 2003, Robert Charles Ellis, the manager of a DollarGeneral Store in High Point, North Carolina, observed defendant on a surveillance monitor shoplifting personal hygiene products. Ellis sent another employee to call the police while he confronted defendant. According to Ellis' testimony:
            I confronted him at the end of the aisle. Told him to stand there and wait for the police. He takes a step back and pulls a knife out of his back pocket. Has it in an up over his head type gesture (indicating). I jumped out of the way, let him have free way to the door. Once he went out through the door I came across the register counter, pulled the silent alarm and was out the door behind him.

Ellis further testified that he felt threatened by defendant's gestures even though defendant did not speak during this encounter.
    Defendant fled into a wooded area near the shopping center with Ellis in pursuit. The police soon arrived with a canine unit and began searching the woods. A police dog, Max, discovered defendant hiding in a thick patch of kudzu. The police arrested defendant immediately and found stuffed inside his left pants leg four sticks of deodorant, two bottles of face wash, and one bottle of cleanser. After searching the kudzu patch, the police recovered a steak knife matching Ellis' description of defendant's knife.
    Defendant offered no evidence. A jury convicted him of robbery with a dangerous weapon, and he pled guilty to being a habitual felon. The trial judge sentenced defendant to 156 to 197 months. Defendant timely appealed to this Court.
Discussion

    We first acknowledge that, in addition to the two assignments of error argued in defendant's appellate brief, defendant actingpro se has attempted to file further assignments of error as an addendum to the Record on Appeal, claiming "non-communication from my [appellate] attorney refusal to assist me on these issues." A defendant has no right to appear both pro se and by counsel. State v. Grooms, 353 N.C. 50, 61, 540 S.E.2d 713, 721 (2000), cert. denied, 534 U.S. 838, 151 L. Ed. 2d 54, 122 S. Ct. 93 (2001). Because defendant is represented by counsel on appeal, his pro se filings are not properly before this Court and we have not considered them.
    The first assignment of error contained in the record on appeal challenges the trial court's denial of defendant's motion to dismiss made at the close of the State's evidence. In ruling on a criminal defendant's motion to dismiss, the trial court must determine whether the State has presented substantial evidence (1) of each essential element of the offense and (2) of the defendant's being the perpetrator. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255, cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404, 123 S. Ct. 488 (2002). "'Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (quoting State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 584, 587 (1984) ).
    The trial court must view all of the evidence presented "in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor." State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223(1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818, 115 S. Ct. 2565 (1995). Specifically, if a reasonable juror could draw an inference of defendant's guilt from the evidence before him, the evidence is sufficient to allow the jury to consider the issue. This standard holds true even if the same evidence may also support an equally reasonable inference of the defendant's innocence. Matias, 354 N.C. at 551, 556 S.E.2d at 270.
    The elements of robbery with a dangerous weapon under N.C. Gen. Stat. § 14_87(a) (2003) are: "'(1) the 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 v. Hope, 317 N.C. 302, 305, 345 S.E.2d 361, 363 (1986) (quoting State v. Beaty, 306 N.C. 491, 496, 293 S.E.2d 760, 764 (1982), overruled on other grounds by State v. White, 322 N.C. 491, 293 S.E.2d 760 (1982) ). In this case, defendant argues that the State offered no evidence of the third element: that the life of any person was endangered or threatened during the robbery. We disagree.
    Defendant first contends that "[a]ssuming, arguendo, that the Appellant actually had a knife in his hand, there is no evidence that he did anything other than flee from the store as the manager stepped aside." Ellis, however, specifically testified that defendant raised a knife, that Ellis felt threatened, and that the threat caused Ellis to move aside and allow defendant to flee. This evidence is sufficient to constitute substantial evidence to meet the third element of armed robbery.
    Defendant also contends that any threat perceived by Ellis was not concomitant with the robbery, since defendant had already taken the shoplifted items and concealed them on his person before he ever pulled out his knife. As our Supreme Court has held, "to be found guilty of armed robbery, the defendant's use or threatened use of a dangerous weapon must precede or be concomitant with the taking, or be so joined with it in a continuous transaction by time and circumstances as to be inseparable." Id. at 306, 345 S.E.2d at 364. In other words, "the defendant's use of force or intimidation must necessarily precede or be concomitant with the taking before the defendant can properly be found guilty of armed robbery. That is, the use of force or violence must be such as to induce the victim to part with his or her property." State v. Richardson, 308 N.C. 470, 477, 302 S.E.2d 799, 803 (1983).
    As the Hope opinion explains, however, "'the exact time relationship, in armed robbery cases, between the violence and the actual taking is unimportant as long as there is one continuing transaction amounting to armed robbery with the elements of violence and of taking so joined in time and circumstances as to be inseparable.'" 317 N.C. at 305_06, 345 S.E.2d at 363_64 (quoting State v. Lilly, 32 N.C. App. 467, 469, 232 S.E.2d 495, 496-97, cert. denied, 292 N.C. 643, 235 S.E.2d 64 (1977)) . Here, the continuous transaction requirement is met because the State showed that defendant used the threat posed by his knife to clear apathway out of the store in order to remove the shoplifted items from the premises. State v. Gaither, 161 N.C. App. 96, 100, 587 S.E.2d 505, 508 (2003) ("The evidence also supports a finding that while defendant's use of intimidation occurred after the taking of property, defendant's effort to avoid apprehension by store and mall security officers is an action continuous with the taking and therefore constitutes a part of the robbery attempt."), disc. review denied, 358 N.C. 157, 593 S.E.2d 83 (2004). Defendant's first assignment of error is, therefore, overruled.
    In his second assignment of error, defendant argues that the trial judge exerted undue pressure on defendant to enter a guilty plea as to his habitual felon status. Specifically, defendant contends that the trial court coerced him into pleading guilty to the habitual felon charge, then made further coercive statements designed to prevent him from withdrawing his guilty plea. We analyze each set of statements separately.
    While the jury was deliberating on the armed robbery charge, the trial judge addressed defendant as follows:
            Now, Mr. Edwards, I want to say to you that I feel like I have been very fair in making sure that the jury has all of the possible options available to it in trying to decide how to determine the outcome of your case. However, as I'm sure Ms. Smith [defense counsel] has explained to you, if the jury finds you guilty of a felony, we must go to a second phase in which we would have to determine whether or not you qualify as an habitual felon.

            I want to say to you that because I have been, have gone out of my way in an effort to be fair to you, I would like for perhaps you to consider returning the favor, and if theydetermine that you are guilty of a felony, I would ask that you confer with Ms. Smith and look into the possibility of going ahead and pleading guilty to the habitual felon status, because in my view it is merely a formality that we have to go through . . . .

After the jury returned a guilty verdict, defense counsel indicated that defendant was pleading guilty to the habitual felon charge, whereupon the judge replied, "All right. Thank you very much, Mr. Edwards. I appreciate that."
    While we are concerned that the trial judge's remarks could be read to inappropriately suggest that the judge's fair treatment of defendant bestowed a favor on defendant, as opposed to having been his right, we are unpersuaded, based on our review of the record, that the trial judge exerted improper pressure upon defendant in order to obtain a guilty plea. See N.C. Gen. Stat. § 15A_1021(b) (2003) ("No person representing the State or any of its political subdivisions may bring improper pressure upon a defendant to induce a plea of guilty or no contest."). State v. Pait, 81 N.C. App. 286, 343 S.E.2d 573 (1986), offers an example of improper pressure exerted by the trial judge. In that case, when defendant entered a plea of not guilty, the trial judge "became visibly agitated," "said in what appeared to be an angry voice that he was tired of 'frivolous pleas,'" and "directed counsel to confer with defendant and return with an 'honest plea.'" Id. at 287_88, 343 S.E.2d at 575. On appeal, this Court observed: "That a trial judge's unguarded remarks may unduly affect jurors is commonly known by the profession and has been noted by our courts many times; it is just as well known that such remarks can also unduly affect those whosepunishment, if any, for crime will be determined by the one making the remarks." Id. at 290, 343 S.E.2d at 576. The Pait Court ultimately held that the defendant's guilty plea was involuntary. Id.
    The challenged remarks in this case do not rise to the level of the judge's remarks in Pait. The trial judge's remarks cannot be construed as demanding a guilty plea or as being overtly result- oriented. Instead, the judge simply requested that defendant confer with his counsel and "look into the possibility of going ahead and pleading guilty to the habitual felon status." Defendant was not rushed in making his decision since the judge made his suggestion immediately after the jury began deliberating and defendant did not express his intent to plead guilty until at least an hour and 20 minutes later. For these reasons, defendant's assignment of error is overruled with respect to the trial court's comments while the jury was deliberating.
    Defendant also challenges a series of remarks following defendant's acknowledgment to the trial judge that he would plead guilty to being a habitual felon and the court's dismissal of the jury. Once defendant indicated his desire to plead guilty, the trial judge asked counsel to work on the plea transcript while he met with the jury in the jury room. After the trial judge returned from dismissing the jury, counsel for defendant raised a question regarding whether the habitual felon warrant had been properly served. The following colloquy then took place:            THE COURT: . . . . [I]f he's pleading guilty to the habitual felon charge[,] service is really immaterial at this point.

            MS. SMITH: And if he withdraws that plea, Judge, what's the status? I have to ask, Judge. You know I have to ask.

            THE COURT: Well, we would have to convene a jury to _

            MS. SMITH: On the basis of his not having been officially served.
    
            THE COURT: Well, we'd serve him. Then we'd have to call in another jury. We'd have a very short trial. It would be the same result. And I frankly, based on the fact that Mr. Edwards, while the jury was deliberating Mr. Edwards indicated his willingness to plead guilty in the event the jury found him guilty of a felony and he again said that after the verdict was returned, I would not be too happy with your client, frankly.

The prosecutor then announced that a jury could be brought in the next day and the trial judge agreed: "Yeah. We can still have a jury come in tomorrow." After the prosecutor stated that an order for arrest for the habitual felon indictment was being brought over, defense counsel stated: "Judge, he'll continue with the plea as indicated." The trial judge then asked defendant himself whether he intended to go forward with pleading guilty and defendant stated, "Yes, sir."
    Defendant was sworn and the trial judge proceeded to make the necessary inquiries required by the plea transcript. Defendant stated that he understood that he had a right to plead not guilty and to be tried by a jury as to the habitual felon charge. He also stated that no promises or threats had been made to cause him to enter into the guilty plea against his wishes and that he was doingso of his own free will, fully understanding what he was doing. Following this inquiry, the trial judge indicated that he would not sentence defendant that day because of questions regarding the calculation of his prior record level, but would wait until the next day to allow time to further consider the prior record level question.
    The next morning, during the sentencing hearing, defendant expressed no interest in withdrawing his guilty plea, but instead asked that the trial court take it into consideration during sentencing: "And [defendant] asked that I remind the Court that on yesterday the Court had indicated something to the effect that it would take into consideration the fact that he would not put the Court through having to have him served as an habitual felon and then that being heard and brought back. And I ask the Court to remind you of that and to take that into consideration." Subsequent to sentencing, defendant asked to speak to the court about two issues regarding jury selection and the State's closing argument. The trial judge allowed defendant to make his arguments personally and fully. At no time did defendant express any concern about his guilty plea.
    Whether the remarks at issue following dismissal of the jury are viewed as occurring before the guilty plea or after the plea had already been entered,   (See footnote 1)  it appears that the trial judge wasexpressing irritation about the issue of service being raised following dismissal of the jury. Based on a review of all the proceedings following the remarks, we cannot see how the trial judge's comments can be viewed as coercing defendant into pleading guilty or depriving defendant of his option to pursue a withdrawal of his plea, had he chosen to do so. We, therefore, find no basis for granting defendant a new trial on his habitual felon charge.

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


Footnote: 1
    "Although there is no absolute right to withdraw a plea of guilty, a criminal defendant seeking to withdraw such a plea, prior to sentencing, is 'generally accorded that right if he can show any fair and just reason.'" State v. Marshburn, 109 N.C. App. 105, 107_08, 425 S.E.2d 715, 717 (1993) (quoting State v. Handy, 326N.C. 532, 536, 391 S.E.2d 159, 161 (1990)).

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