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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. ANGELIA SCATES COMBS
Filed: 3 April 2007
1. Robbery_sufficiency of evidence_constructive presence_series of crimes
The trial court did not err by denying a motion to dismiss an armed robbery charge where
defendant acted in concert with another to commit three crimes, the last being an armed robbery,
for the common plan or purpose of obtaining money to go to Florida. Defendant was actually
present and participated in the first two crimes (use of a stolen credit card and common law
robbery) and was constructively present at the armed robbery by waiting in a car in the parking
lot and driving away with her accomplice.
2. Criminal Law_jury request to view evidence_statement read into evidence_redacted
version created and provided_not prejudicial
There was error in an armed robbery prosecution which was not prejudicial where the
jury requested copies of all of defendant's statements, the prosecutor pointed out that one of
those statements was not in document form because a detective had read from a report which was
never admitted into evidence, and the court sent a redacted version of the report to the jury room.
Nothing in N.C.G.S. § 15A-1233 authorizes a court to proceed in this way; however, it is
undisputed that the testimony would have been identical to the written document provided to the
jury and the document contained exculpatory information.
3. Robbery_use of knife in robbery_no evidence of lesser offense
The trial court did not err in an armed robbery trial by not charging on common law
robbery where the victim testified that defendant's accomplice pressed a pocketknife with a three
to four inch blade to his chest and threatened to cut him if he didn't open the register.
4. Evidence_other crimes_common plan or scheme_limiting instruction
Evidence of the attempted use of a stolen credit card and a common law robbery was
properly admitted in a prosecution for armed robbery where all three acts occurred within 3
blocks and were committed within approximately one hour, and the trial court gave an instruction
limiting the evidence to common scheme or plan.
5. Criminal Law_prosecutor's opening argument_other crimes_forecast of common
plan or scheme_latitude
The trial court did not abuse its discretion when it did not sustain defendant's objection to
the prosecution's opening argument about another offense in an armed robbery prosecution. The
prosecutor is allowed latitude regarding the scope of his opening statement and forecasted
admissible and relevant evidence tending to show a common scheme or plan.
Judge Elmore dissenting.
Appeal by defendant from judgment entered 7 December 2005 by
Judge John O. Craig, III, in Guilford County Superior Court. Heard
in the Court of Appeals 7 February 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Amanda P. Little, for the State.
James N. Freeman, Jr., for defendant-appellant.
Angelia Scates Combs (defendant) appeals from judgment
entered after a jury found her to be guilty of robbery with a
dangerous weapon. We find no prejudicial error.
On 13 October 2004, defendant and Hank Lanier (Lanier) drove
to High Point, North Carolina to obtain money in order to travel to
Florida. Defendant and Lanier entered a K-Mart Store at
approximately 9:30 a.m. and attempted to purchase a drink with a
stolen credit card. The card was declined and defendant and Lanier
At approximately 9:56 a.m., defendant and Lanier entered the
Perfect Nail Salon (the Salon) located adjacent to the K-Mart
Store. Defendant entered under the pretense of applying for a job.
Defendant and a Salon employee struggled, while Lanier grabbed the
cash register. Both defendant and Lanier ran out of the Salon.
Defendant and Lanier drove out of the parking lot in a gray Ford F-
150 pickup truck. Lanier broke open the cash register with a
screwdriver, discovered it to be empty, and threw the cash register
out of the car.
Defendant and Lanier drove to Zingo Mart located three blocks
from the Salon and parked behind the store. At approximately 10:04
a.m., Lanier entered the Zingo Mart while defendant remained in the
truck. Richard Bailey (Bailey) was the only Zingo Mart clerk
working that day and testified he saw Lanier enter the Zingo Mart.
Lanier jumped over the counter and pressed a pocket knife with a
three to four inch blade against Bailey's chest. Lanier stated ifBailey did not open the cash register, Lanier would cut him.
Bailey opened the cash register. Lanier removed approximately
$350.00 and exited the Zingo Mart. Bailey testified he saw a
bluish pick-up truck exit the parking lot moments later.
Bailey contacted law enforcement officers and gave a
description of Lanier and defendant to Detective Mark McNeill
(Detective McNeill). Detective McNeill spoke with Brian
Peterson, the loss prevention manager at the K-Mart Store.
Peterson recalled defendant and Lanier's attempted drink purchase
and found a photograph of defendant and Lanier on the K-Mart's
security camera. Bailey identified Lanier from that photograph.
At approximately 2:40 p.m., Detective Stephanie Murphy
(Detective Murphy) stopped defendant and Lanier's vehicle after
she received a report of the crimes that morning. Detective Murphy
arrested both defendant and Lanier. Defendant waived her Miranda
rights and gave a voluntary statement and confessed to the Salon
robbery. On 14 October 2004, defendant gave a second voluntary
confession to Detective McNeill and again admitted participating in
the Salon robbery.
On 3 January 2005, a grand jury indicted defendant on robbery
with a dangerous weapon for the Zingo Mart robbery and common law
robbery of the Salon. On 5 December 2005, defendant pled guilty to
the common law robbery. The State proceeded to trial on
defendant's robbery with a dangerous weapon charge. The jury
returned a verdict of guilty of robbery with a dangerous weapon.
The trial court sentenced defendant to an active minimum sentence
of sixty-one months and eighty-three months maximum. Defendant
Defendant argues the trial court erred when it: (1) denied
her motion to dismiss; (2) provided a document not admitted into
evidence to the jury during jury deliberations; (3) failed to
charge the jury on common law robbery as a lesser included offense
to robbery with a dangerous weapon; (4) allowed Exhibits 3 and 9
into evidence; and (5) failed to sustain her objection to the
State's opening statement.
III. Motion to Dismiss
 Defendant argues the trial court should have dismissed the
charge of robbery with a dangerous weapon. We disagree.
A. Standard of Review
The standard for ruling on a motion to dismiss
is whether there is substantial evidence (1)
of each essential element of the offense
charged and (2) that defendant is the
perpetrator of the offense. Substantial
evidence is relevant evidence which a
reasonable mind might accept as adequate to
support a conclusion. In ruling on a motion
to dismiss, the trial court must consider all
of the evidence in the light most favorable to
the State, and the State is entitled to all
reasonable inferences which may be drawn from
the evidence. Any contradictions or
discrepancies arising from the evidence are
properly left for the jury to resolve and do
not warrant dismissal.
State v. Wood, 174 N.C. App. 790, 795, 622 S.E.2d 120, 123 (2005)
(internal quotations omitted).
This Court stated in State v. Hamilton, in 'borderline' or
close cases, our courts have consistently expressed a preference
for submitting issues to the jury, both in reliance on the common
sense and fairness of the twelve and to avoid unnecessary appeals.
77 N.C. App. 506, 512, 335 S.E.2d 506, 510 (1985) (citations
omitted), disc. rev. denied, 315 N.C. 593, 341 S.E.2d 33 (1986).
N.C. Gen. Stat. § 14-87(a) (2005) states: (a) Any person or persons who, having in
possession or with the use or threatened use
of any firearms or other dangerous weapon,
implement or means, whereby the life of a
person is endangered or threatened, unlawfully
takes or attempts to take personal property
from another or from any place of business,
residence or banking institution or any other
place where there is a person or persons in
attendance, at any time, either day or night,
or who aids or abets any such person or
persons in the commission of such crime, shall
be guilty of a Class D felony.
Robbery with a dangerous weapon is: (1) the unlawful taking or
attempt to take personal property from the person or in the
presence of another (2) by the use or threatened use of a firearm
or other dangerous weapon (3) whereby the life of a person is
endangered or threatened (4) where the taker knows he is not
entitled to take the property and (5) intends to permanently
deprive the owner of the property. State v. Richardson, 342 N.C.
772, 784, 467 S.E.2d 685, 692 (1996), cert. denied, 519 U.S. 890,
136 L. Ed. 2d 160 (1996).
The principle of concerted action need not be
overlaid with technicalities. It is based on
the common meaning of the phrase concerted
action or acting in concert. To act in
concert means to act together, in harmony or
in conjunction one with another pursuant to a
common plan or purpose.
State v. Joyner, 297 N.C. 349, 356, 255 S.E.2d 390, 395 (1979) (The
trial court properly denied the defendant's motion to dismiss
charges on acting in concert theory.). Our Supreme Court reasoned:
Where the state seeks to convict a defendant
using the principle of concerted action, that
this defendant did some act forming a part of
the crime charged would be strong evidence
that he was acting together with another who
did other acts leading toward the crimes'
commission. That which is essentially
evidence of the existence of concerted action
should not, however, be elevated to the status
of an essential element of the principle.
Evidence of the existence of concerted action
may come from other facts. It is not,therefore, necessary for a defendant to do any
particular act constituting at least part of a
crime in order to be convicted of that crime
under the concerted action principle so long
as he is present at the scene of the crime and
the evidence is sufficient to show he is
acting together with another who does the acts
necessary to constitute the crime pursuant to
a common plan or purpose to commit the crime.
Id. at 356-57 (emphasis in original and supplied); see State v.
Johnson, 164 N.C. App. 1, 13, 595 S.E.2d 176, 183 (2004) (Evidence
sufficient to show the defendant acted in concert to commit robbery
with a dangerous weapon when he and two co-defendants planned to
rob someone by having the unarmed defendant frighten the victims,
but the co-defendant instead menaced the victims with a shotgun,
and the defendant took the victims' money.); see also State v.
Erlewine, 328 N.C. 626, 637, 403 S.E.2d 280, 286 (1991) (Under the
theory of acting in concert, upon which the jury was instructed, if
two or more persons join in a purpose to commit a crime, each
person is responsible for all unlawful acts committed by the other
persons as long as those acts are committed in furtherance of the
crime's common purpose.).
Constructive presence is not determined by the defendant's
actual distance from the crime; the accused simply must be near
enough to render assistance if need be and to encourage the actual
perpetration of the crime. State v. Wiggins, 16 N.C. App. 527,
531, 192 S.E.2d 680, 682 (1972). Thus, the driver of a get-away
car may be constructively present at the scene of a crime although
stationed a convenient distance away. Id. at 530, 192 S.E.2d at
682-83; see State v. Lyles, 19 N.C. App. 632, 636, 199 S.E.2d 699,
702 (The defendant driver of get-away car was present at scene
of crime even though he was waiting in trailer park located 100
feet behind store being robbed.), cert. denied, 284 N.C. 426, 200S.E.2d 662 (1973); but cf. State v. Buie, 26 N.C. App. 151, 154,
215 S.E.2d 401, 404 (1975) (The defendant not constructively
present where he arranged for others to steal tools from a sawmill,
and, in response to actual participants' telephone call to the
defendant's nearby home, picked up and drove participants away from
scene of crime.).
Defendant admitted to Detective McNeill that she and Lanier
traveled to High Point on 13 October 2004 to get getaway money to
go to Florida. Evidence shows defendant and Lanier had a common
plan or purpose to obtain money to go to Florida. Defendant and
Lanier initially stopped at a K-Mart store and attempted to use a
stolen credit card. Defendant and Lanier left K-Mart and entered
the Perfect Nail Salon, located beside K-Mart. Defendant admitted
that she and Lanier stole a cash register from the Salon, which
they later discovered to be empty of cash. Defendant and Lanier
drove out of the shopping center and stopped minutes later at the
Zingo Mart. Lanier stole $350.00 from the Zingo Mart at knife
Defendant acted in concert with Lanier to commit crimes at:
(1) K-Mart; (2) Perfect Nail Salon; and (3) Zingo Mart. See
Joyner, 297 N.C. at 356, 255 S.E.2d 390 at 395 (To act in concert
means to act together, in harmony or in conjunction one with
another pursuant to a common plan or purpose.). Sufficient
evidence supports defendant was constructively present to the Zingo
Mart robbery because she was actually present and participated in
the crimes at K-Mart and the Perfect Nail Salon. She remained in
the vehicle in the Zingo Mart parking lot during the third crime.
She drove away with Lanier after Lanier robbed the Zingo Mart.
Viewing the evidence in the light most favorable to the State, thetrial court did not err when it denied defendant's motion to
dismiss. This assignment of error is overruled.
IV. Defendant's Statement
 Defendant argues the trial court committed prejudicial
error when it provided a document to the jury during jury
deliberations that had not been admitted into evidence. We
Under N.C. Gen. Stat. § 15A-1233:
(a) If the jury after retiring for
deliberation requests a review of certain
testimony or other evidence, the jurors must
be conducted to the courtroom. The judge in
his discretion, after notice to the prosecutor
and defendant, may direct that requested parts
of the testimony be read to the jury and may
permit the jury to reexamine in open court the
requested materials admitted into evidence. In
his discretion the judge may also have the
jury review other evidence relating to the
same factual issue so as not to give undue
prominence to the evidence requested.
(b) Upon request by the jury and with consent
of all parties, the judge may in his
discretion permit the jury to take to the jury
room exhibits and writings which have been
received in evidence. If the judge permits the
jury to take to the jury room requested
exhibits and writings, he may have the jury
take additional material or first review other
evidence relating to the same issue so as not
to give undue prominence to the exhibits or
writings taken to the jury room. If the judge
permits an exhibit to be taken to the jury
room, he must, upon request, instruct the jury
not to conduct any experiments with the
The decision whether to grant or refuse a request by the jury for
a restatement or review of the evidence after jury deliberations
have begun lies within the discretion of the trial court. State v.
Johnson, 346 N.C. 119, 123, 484 S.E.2d 372, 375 (1997). During jury deliberations, the jury sent a note which stated,
Jury request: all statements by Ms. Combs, and any pictures
taken. The following colloquy ensued:
The Court: They are wanting the statements by
Ms. Combs and all the photographs. Any
objection to giving them those?
[Prosecutor]: One statement of hers is not in
document form, the one that Detective McNeill
basically read into the record.
The Court: Okay. So that was not into
[Prosecutor]: No, sir. The statement itself
was, but not as a document.
The Court: Right.
[Defense counsel]: What has been introduced as
an exhibit, obviously no objection to that.
The Court: What are we going to do about the
one that's not in document form but is in
evidence? I know they're going to want it.
[Prosecutor]: I can type it and print it out.
It's in quotations in his report, but we don't
want to send the whole report back.
[Defense counsel]: Right. Does the question
go to the exhibits, or does it just say
The Court: It says: Jury request: all
statements by Ms. Combs, and any pictures
[Defense counsel]: I guess the only concern -
and I'm just thinking out loud, bear with me -
is if there were some, I can't remember, and
I'll defer to the Court and [the prosecutor]
on this, whether there may have been some
other statements that she gave to Davidson
County officials, at least referred to. And
then my concern is we don't have any way of
getting that back to them as well. So I guess
it's just a general judgment as to typing up
something that has not been introduced as an
exhibit, since - but I don't wish to be heard.
The Court: Well, to the extent that the
specific words may, uh, were put into evidence
by the testimony of Detective McNeill, the
only way we could get them, uh, if they wantthat statement, the only way to get it
otherwise would be to have, uh, put him back
on the witness stand and have him re-read it.
I'd rather not do that, if we can figure out
some way to get it in some sort of written
form to them.
[Prosecutor]: I think what I'll do, instead of
typing it over again, is to chop up ___
The Court: Redact it, yes.
[Prosecutor]: If you'll give me a minute, I
can get that done.
The Court: Okay. I'm going to send State's
Exhibit 9 to the jury, along with the
photographs, Madam Clerk, if you will get
those together for me. And in my discretion,
I am going to give them a redacted statement
that was read into evidence by Detective
McNeill, rather than require him to get back
on the witness stand and re-read his
testimony. We have taken a redacted version
and made a photocopy of it and it's my
understanding that [defense counsel] wishes to
make an objection for the record.
[Defense counsel]: That is correct, if your
Honor please. We would object.
Nothing in N.C. Gen. Stat. § 15A-1233 authorizes the trial
court to proceed as it did in this case. When the jury requested
copies of all of defendant's statements, the prosecutor pointed out
to the trial court that one of those statements was not in document
form. Instead, Detective McNeill had testified to that statement,
reading from his report. His report was never admitted into
evidence. The trial court, nevertheless, sent a redacted version
of that report back to the jury room.
The statute grants the trial court discretion to make
available to the jury only testimony or other evidence and
exhibits and writings which have been received in evidence. N.C.
Gen. Stat. § 15A-1233(a) and (b). Because the police report wasnot admitted into evidence, the trial court necessarily had no
discretion to allow it to be reviewed by the jury. The State
acknowledges this fact in its brief, Defendant correctly asserts
that N.C.G.S. § 15A-1233 does not give authority to permit the jury
to take writings which have not been received in evidence to the
jury room under any circumstances.
We conclude the trial court's error was not prejudicial to
defendant. See N.C. Gen. Stat. § 15A-1443(a) (2005) (A defendant
is prejudiced by errors relating to rights arising other than under
the Constitution of the United States when there is a reasonable
possibility that, had the error in question not been committed, a
different result would have been reached at the trial out of which
the appeal arises.).
The trial court could have instructed the court reporter to
that portion of Detective McNeill's testimony in which he reported
defendant's statement to the jury under N.C. Gen. Stat. § 15A-
Since it is undisputed that the testimony would have been
identical to the written document provided to the jury and since
that document contained exculpatory information, we conclude there
is no reasonable possibility that the jury would have reached a
different verdict if Detective McNeill's redacted report had not
been sent back to the jury room.
The trial court's error did not rise to the level of prejudice
required by N.C. Gen. Stat. § 15A-1443(a) to award defendant a new
V. Lesser-Included Offense
 Defendant argues the trial court erred when it failed to
charge the jury as to common law robbery as a lesser included
offense of robbery with a dangerous weapon. We disagree.
As stated above, [u]nder N.C.G.S. § 14-87(a), robbery with a
dangerous weapon is: '(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. Olson, 330 N.C. 557, 566, 411 S.E.2d 592,
597 (1992) (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. 506, 369 S.E.2d 813 (1988)); see N.C. Gen. Stat. § 14-87
(1993). 'Force or intimidation occasioned by the use or
threatened use of firearms, is the main element of the offense.'
Beaty, 306 N.C. at 496, 293 S.E.2d at 764 (quoting State v. Mull,
224 N.C. 574, 576, 31 S.E.2d 764, 765 (1944)).
[W]here the uncontroverted evidence is positive and
unequivocal as to each and every element of armed robbery, and
there is no evidence supporting defendant's guilt of a lesser
included offense, the trial court does not err by failing to
instruct the jury on the lesser included offense of common law
robbery. State v. Peacock, 313 N.C. 554, 562, 330 S.E.2d 190, 195
(1985). The sole factor determining the judge's obligation to
give such an instruction is the presence, or absence, of any
evidence in the record which might convince a rational trier of
fact to convict the defendant of a less grievous offense. State
v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981). The
critical difference between armed robbery and common law robbery isthat the former is accomplished by the use or threatened use of a
dangerous weapon whereby the life of a person is endangered or
threatened. Peacock, 313 N.C. at 562, 330 S.E.2d at 195; see
State v. Thompson, 297 N.C. 285, 289, 254 S.E.2d 526, 528 (1979)
(No instruction on common law robbery required in the absence of
affirmative evidence of the nonexistence of an element of the
Bailey testified Lanier jumped the counter and had the knife
in [his] chest[,] and ordered Bailey to open the register or he'd
cut me. Bailey testified Lanier held a pocketknife with an
approximate three to four inch blade and pressed the knife against
Bailey's chest. Bailey opened the register and Lanier removed
about $350.00. Uncontradicted evidence tends to show Lanier robbed
the Zingo Mart with a pocketknife. Under the theory of acting in
concert, the trial court did not err when it denied defense
counsel's request for an instruction on the lesser included offense
of common law robbery. This assignment of error is overruled.
VI. Exhibits 3 and 9
 Defendant argues the trial court erred when it allowed
Exhibits 3 and 9 into evidence. We disagree.
A. Standard of Review
The standard of review for assessing evidentiary rulings is
abuse of discretion. State v. Meekins, 326 N.C. 689, 696, 392
S.E.2d 346, 350 (1990). A trial court may be reversed for an
abuse of discretion only upon a showing that its ruling was so
arbitrary that it could not have been the result of a reasoned
decision. State v. Wilson, 313 N.C. 516, 538, 330 S.E.2d 450, 465
B. Rule 404(b)
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005) states:
(b) Other crimes, wrongs, or acts. -- 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. Admissible evidence
may include evidence of an offense committed
by a juvenile if it would have been a Class A,
B1, B2, C, D, or E felony if committed by an
The admissibility of 404(b) evidence is subject to the weighing of
probative value versus unfair prejudice mandated by Rule 403.
State v. Agee, 326 N.C. 542, 549, 391 S.E.2d 171, 175 (1990)
(citing United States v. Montes-Cardenas, 746 F.2d 771, 780 (11th
Cir. 1984)); N.C. Gen. Stat. § 8C-1, Rule 403 (Although relevant,
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of unfair
delay, waste of time, or needless presentation of cumulative
evidence.). Rule 404(b) is a rule of inclusion, not exclusion.
Agee, 326 N.C. at 550, 391 S.E.2d at 175.
Rule 404(b) evidence is relevant and admissible so long as the
incidents are sufficiently similar and not too remote in time.
State v. Blackwell, 133 N.C. App. 31, 35, 514 S.E.2d 116, 119
(citing State v. Bagley, 321 N.C. 201, 207, 362 S.E.2d 244, 247-48
(1987)), disc. rev. denied, 350 N.C. 595, 537 S.E.2d 483 (1999);
see also State v. Smith, 152 N.C. App. 514, 527, 568 S.E.2d 289,
297 (The use of evidence permitted under Rule 404(b) is guided bytwo constraints: similarity and temporal proximity.) (citation
omitted), disc. rev. denied, 356 N.C. 623, 575 S.E.2d 757 (2002).
Remoteness in time is most important where
evidence of another crime is used to show that
both crimes arose out of a common scheme or
plan[; r]emoteness in time is less important
when the other crime is admitted because its
modus operandi is so strikingly similar to the
modus operandi of the crime being tried as to
permit a reasonable inference that the same
person committed both crimes.
State v. Schultz, 88 N.C. App. 197, 203, 362 S.E.2d 853, 857
(1987), aff'd, 322 N.C. 467, 368 S.E.2d 386 (1988); see State v.
Alvarez, 168 N.C. App. 487, 497, 608 S.E.2d 371, 377 (2005)
(Evidence of prior robberies was admissible to show a common scheme
or purpose because each of the prior robberies was sufficiently
similar to the subject robbery and occurred within weeks of the
subject robbery, and the State proffered testimony that the
robberies were all part of a common scheme or plan towards a drug
transaction with a Connecticut gang.).
The trial court admitted into evidence State's Exhibit 3,
which is a receipt for an attempted credit card transaction at K-
Mart on 13 October 2004 at 9:34 a.m. The trial court also admitted
State's Exhibit 9, which is defendant's statement written by
Detective Murphy. The statement says:
[Lanier] and I went to High Point to Wal-Mart
(sic). It is beside a nail shop. I went into
Wal-Mart (sic) to get some underwear. Came
out and met [Lanier] in the parking lot.
[Lanier] told me to go inside and distract the
lady in the nail shop. I was talking to the
Oriental lady, and [Lanier] took the cash
register. [Lanier] ran out of the store with
the cash register. The woman and I was
wrestling around on the ground. I scraped my
knee. The woman threw her shoe at me. I ran
outside and got in the Blazer (sic) with
[Lanier] and we left. [Lanier] threw theregister out of the window just down the road
from the nail salon. [Lanier] pried open the
cash register with a screwdriver, but there
was no money inside.
The trial court admitted this statement and stated that it was
admissible solely for the limited purpose of showing that
[defendant] had a common plan or scheme with [Lanier], whom she was
with at that time. And that is the only way you may consider this
On the morning of 13 October 2004, defendant and Lanier: (1)
entered K-Mart and attempted to use a stolen credit card; (2)
committed common law robbery at the Salon; and, (3) robbed Bailey
an employee at the Zingo Mart at knife-point. All three stores are
located within three blocks of each other. All acts were committed
within approximately one hour. The trial court properly admitted
Exhibit 3 and 9 with a limiting instruction for the jury to
consider this evidence as tending to show a common scheme or plan.
This assignment of error is overruled.
VII. State's Opening Statement
 Defendant argues the trial court erred when it failed to
sustain her objection to the State's opening statement. We
Under N.C. Gen. Stat. § 15A-1221(a)(4), each party must be
given the opportunity to make a brief opening statement, but the
defendant may reserve his opening statement. State v. Mash, 328
N.C. 61, 64-65, 399 S.E.2d 307, 310 (1991). The trial court is
given broad discretion to control the extent and manner of
questioning prospective jurors, and its decisions will not be
overturned absent an abuse of discretion. Id. An openingstatement is for the purpose of making a general forecast of the
evidence, not for arguing the case, instructing on the law, or
contradicting the other party's witnesses. Id. N.C. Gen. Stat.
§ 15A-1221(a)(4) permits each party in a criminal jury trial to
make an opening statement but does not define the scope of that
statement. However, wide latitude is generally allowed with
respect to its scope. Control of the parties' opening statements
is within the discretion of the trial court. State v. Holmes, 120
N.C. App. 54, 62, 460 S.E.2d 915, 920, disc. rev. denied, 342 N.C.
416, 465 S.E.2d 545 (1995) (quotations and citations omitted).
During his opening statement, the prosecutor stated: the
first thing you will hear is that there was a robbery that occurred
at Perfect Nails on South Main Street. This is a nail salon down
here on South Main. The trial court overruled defense counsel's
objection. The prosecutor is allowed latitude regarding the scope
of his opening statement and forecasted admissible and relevant
evidence tending to show a common scheme or plan. The trial court
did not abuse its discretion when it overruled defendant's
objection. This assignment of error is overruled.
The trial court did not err when it denied defendant's motion
to dismiss the charge of robbery with a dangerous weapon.
Sufficient evidence tended to show defendant and Lanier acted in
concert to commit the crimes. The trial court did not commit
prejudicial error when it allowed the jury to review a redacted
officer's report that admitted portions of defendant's statement to
the officer that were testified to at trial. The trial court did not err by failing to charge the jury on
common law robbery as a lesser included offense of robbery. All
evidence tended to show Lanier committed the robbery of Bailey at
the Zingo Mart with a deadly weapon.
The trial court did not err when it allowed Exhibits 3 and 9
into evidence as relevant to show common plan or scheme. The trial
court did not err when it overruled defendant's objection to the
State's opening statement referring to the Perfect Nail Salon
robbery. Defendant received a fair trial, free from prejudicial
errors she preserved, assigned, and argued.
No Prejudicial Error.
Judge GEER concurs.
Judge ELMORE dissents by separate opinion.
ELMORE, Judge, dissenting.
I respectfully dissent from the majority opinion holding that
the State produced sufficient evidence to survive defendant's
motion to dismiss. Because I believe that the evidence was
insufficient to convince a rational trier of fact that defendant
was guilty of robbery with a dangerous weapon, I would hold that
the trial court erred by not allowing defendant's motion to dismiss
the charge of robbery with a dangerous weapon, and would order a
new trial for defendant.
The State concede[s] that defendant herself did not commit
the robbery at the Zingo Mart, and instead argues that she acted
in concert with Lanier. At issue is whether the State presented
substantial evidence showing that defendant was acting in concertwith Lanier to rob the Zingo Mart. I would hold that the State
failed to carry this burden.
Under the doctrine of acting in concert,
[I]f two persons join in a purpose to commit a
crime, each of them, if actually or
constructively present, is not only guilty as
a principal if the other commits that
particular crime, but he is also guilty of any
other crime committed by the other in
pursuance of the common purpose . . . or as a
natural or probable consequence thereof.
State v. Herring, 176 N.C. App. 395, 399, 626 S.E.2d 742, 745
(quoting State v. Barnes, 345 N.C. 184, 233, 481 S.E.2d 44,
(alteration in original)
(internal citations omitted).
The State must show that defendant was present, that she had
joined in purpose with Lanier to commit a crime, and that the crime
for which she was being tried, robbery with a dangerous weapon, was
either in pursuance of [that] common purpose . . . or [was] a
natural or probable consequence thereof. Id.; see also State v.
Sloan, 180 N.C. App. 527, 638 S.E.2d 36 (2006) (Elmore, J.,
concurring in part and dissenting in part). Defendant argues that
the State did not present sufficient evidence to establish her
presence. For purposes of the doctrine, '[a] person is
constructively present during the commission of a crime if he or
she is close enough to be able to render assistance if needed and
to encourage the actual perpetration of the crime.' State v. Mann,
355 N.C. 294, 306, 560 S.E.2d 776, 784 (2002) (quoting State v.
Willis, 332 N.C. 151, 175, 420 S.E.2d 158, 169 (1992)).
I do not think that the State presented sufficient evidence to
establish defendant's constructive presence. The majority holds
that defendant was constructively present during the Zingo Martcrime because she was actually present and participated in the
crimes at K-Mart and the Perfect Nail Salon. In my opinion, such
reasoning is inadequate to support a finding of constructive
presence. Although by her own admission defendant was seated in
the vehicle outside the Zingo Mart, it appears that she was sitting
in the passenger seat, rather than positioned as a getaway driver.
This inference is supported by both defendant's statement that
Hank pulled behind a store and Detective Murphy's testimony that
Lanier was driving the vehicle at the time defendant and Lanier
were arrested. The store clerk testified that he did not see a
vehicle at the time of the robbery, and defendant stated that they
were parked behind the Zingo Mart. Again, both statements support
the inference that defendant was not in a position to render
assistance or encourage the actual perpetration of the crime.
Although the use of circumstantial evidence is permissible to
establish sufficient evidence, that evidence must be real and
substantial and not merely speculative. Substantial evidence is
evidence from which a rational trier of fact could find the fact to
be proved beyond a reasonable doubt. State v. Berry, 143 N.C.
App. 187, 207, 546 S.E.2d 145, 159 (2001) (quotations and citations
omitted). Here, the State's evidence does not rise to the level of
sufficiency. Accordingly, I would find that the State did not
present sufficient evidence to support defendant's constructive
presence during the Zingo Mart robbery.
(See footnote 1)
Because I would find that it was error for the trial court to
deny defendant's motion to dismiss, I respectfully dissent from the
Although I need not address whether defendant shared a
common purpose with Lanier in order to find error with the trial
court's ruling, defendant's admission to the events at K-Mart and
the Perfect Nail Salon, as well as her voluntary plea of guilty
to the common law robbery of the nail salon, indicate that the
Zingo Mart robbery occurred outside the scope of any commonpurpose that defendant had with Lanier.
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