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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA06-1633

NORTH CAROLINA COURT OF APPEALS

Filed: 2 October 2007


STATE OF NORTH CAROLINA
                                Onslow County
         v.                        Nos. 05 CRS 52919, 52922-
                                    23
MELDETRIC ROGERS                
    

    Appeal by defendant from judgments entered 2 February 2006 by Judge Russell J. Lanier, Jr. in Onslow County Superior Court. Heard in the Court of Appeals 17 September 2007.

     Attorney General Roy Cooper, by Assistant Attorney General Mary Carla Hollis, for the State.

    Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Barbara S. Blackman, for defendant-appellant.

     CALABRIA, Judge.

    Meldetric Rogers (“defendant”) appeals from a judgment entered upon a jury verdict finding him guilty of two counts of robbery with a dangerous weapon, two counts of conspiracy to commit robbery with a dangerous weapon, and one count of discharging a weapon into occupied property. We find no error.
    The case was tried at the 31 January 2006 Criminal Session of Onslow County Superior Court. The State presented evidence at trial which tends to show the following: On 23 March 2005, Judy Krebs (“Krebs”) was a taxicab driver for Dynamic Cab in Jacksonville, North Carolina. Around 10:00 p.m., Krebs picked up a passenger and drove him to an address on Tallman Circle. After pulling into the driveway and parking the car, Krebs turned around to collect her fare. As she did so, she heard a gunshot blast. Krebs turned to her driver side window and saw a black male standing there holding a shotgun to her face. Krebs later identified the man as the defendant. The defendant started screaming at her to give him her money or he would kill her. Krebs gave him $13. Meanwhile, her passenger door opened and another man reached into the car and took her cellphone. Krebs tried to reach for it, but defendant put the shotgun to her neck and told her not to look at the man. The second man tried to remove her radio from the car, but it was bolted to the floor. While holding the shotgun under Krebs' chin, defendant fired the shotgun in the direction of the radio. After firing the shot, defendant dropped the $13 back in Krebs' car. Nearby neighbors turned on their porch light, and both defendant and the other man fled.
    At approximately 10:30 p.m., Deputy Sheriff Jeff Sanders (“Deputy Sanders”) of the Onslow County Sheriff's Department was dispatched to the area where the robbery occurred. After turning onto Tallman Circle, Deputy Sanders observed two black males near the edge of the woodline, less than 100 yards from where the robbery occurred. Deputy Sanders exited his vehicle and called the men over so they could talk. One of the men identified himself as David Goss, but Deputy Sanders later learned that he was actually the defendant. At the time, Deputy Sanders did not think the men matched the description given to the police by Krebs, so he released them. Later, Deputy Sanders went to a nearby trailer,which Goss identified as his home, and found an individual living there by the name of Rajasinghe White (“White”).
    On 28 March 2005, sometime between 9:30 and 10:00 p.m., John Garten (“Garten”) drove to the Piney Green Shopping Center to deposit his paycheck at an ATM. As he exited his truck, a black male walked up alongside him and asked Garten for a ride. The man told Garten he lived “right across the street.” Garten agreed and asked the man to wait until he finished depositing his paycheck. Garten identified the man as the defendant. As Garten entered the Navy Federal Credit Union, the man asked if he could use Garten's cellphone. Garten handed the defendant his phone, and defendant went outside to make a phone call. Phone records show that two calls were made, one at 10:18 p.m., another at 10:22 p.m. Records further show that the calls were made to a phone number assigned to White.
    Garten deposited his paycheck, left the credit union and stepped into his truck. Defendant directed him to drive to Tallman Circle and turn into a driveway next to a trailer owned by White. As Garten drove the truck in, the defendant got out of the truck and entered a trailer. Garten looked in his rearview mirror and observed a black male coming up beside the truck. The man then pointed a shotgun in Garten's face through the driver's side window. The man pulled Garten out of the truck and told him to give him all his money. The man pulled Garten's wallet out, took out the money, and frisked him. At that time, Garten asked the man to stop pointing the shotgun in his face, and the man hit Garten inthe face with the gun. Then, the man asked for more money. When Garten told him he did not have any more, the man told Garten to rip the stereo out of his truck. Garten did so and handed it to the man. Meanwhile, defendant exited the trailer and stood by the truck.
    As Garten was pulled out of the truck, he had thrown his ATM card under the front passenger seat. After frisking Garten, the man asked him where his ATM card was. Garten told him he did not know. The man replied to Garten that: “I know you have one, so you'd better find it and give it to me because I know you're lying. I know you have it on you.” Garten retrieved the card and handed it to the man. The man asked for the numbers to the ATM card, but Garten gave him the wrong last digit. Then, he told Garten that if he went and got $500, he would give Garten his stuff back. The man told the defendant to go with Garten and gave defendant the ATM card. Garten and defendant then rode back to the ATM at the credit union. On the way, Garten told defendant he could not withdraw $500. Defendant told Garten to “pull out as much as you can and I'll talk to him and see if I can get your stuff back.” Once at the ATM machine, Garten withdrew $120. Defendant stood behind Garten, watched him enter the code and asked Garten why he gave the man the wrong number. Garten lied and told him he was “scared and confused and I must have forgotten it.” Garten gave defendant the $120 and they drove back to Tallman Circle. Defendant got out of the vehicle, told Garten to follow him, and then ran off into the woods. Garten drove to a nearby restaurant and called the police.     Officer John Ervin (“Officer Ervin”) of the Jacksonville Police Department was dispatched to investigate the robbery and began canvassing the area looking for possible suspects. Officer Ervin was looking for a black male dressed in dark clothing. At approximately 11:30 p.m., Officer Ervin observed a person matching this description at a nearby gas station. Officer Ervin stopped and asked the man for identification. The man told him he did not have any identification, and told Officer Ervin that his name was David Goss. Officer Ervin identified the man at trial as being the defendant. Defendant later admitted that he had given Officer Ervin a fake name.
    Defendant was convicted of two counts of robbery with a dangerous weapon, two counts of conspiracy to commit robbery with a dangerous weapon, and discharging a weapon into occupied property. Defendant appeals.
    As an initial matter, defendant makes five assignments of error in the record, but argues only two in his brief. Therefore, the three remaining assignments of error are deemed abandoned per N.C. R. App. 28(b)(6) (2007). Defendant argues that the trial court erred by denying his motion to dismiss the armed robbery and conspiracy charges relating to Garten. Defendant contends that while the evidence may establish that he committed a larceny when he ran off into the woods with Garten's money, it failed to establish that an agreement existed between him and the robber to commit an armed robbery or that he was guilty of the armed robbery itself. We are not persuaded.    “When a defendant moves for dismissal, the trial court must determine whether the State has presented substantial evidence of each essential element of the offense charged and substantial evidence that the defendant is the perpetrator.” State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)) (internal quotations omitted). When reviewing the sufficiency of the evidence, “[t]he trial court must consider such evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom.” State v. Patterson, 335 N.C. 437, 450, 439 S.E.2d 578, 585 (1994) (citing State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991)).
    Our Supreme Court stated in State v. Bindyke, 288 N.C. 608, 220 S.E.2d 521 (1975):
        A criminal conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means. To constitute a conspiracy it is not necessary that the parties should have come together and agreed in express terms to unite for a common object: A mutual, implied understanding is sufficient, so far as the combination or conspiracy is concerned, to constitute the offense.

Id.
at 615-16, 220 S.E.2d at 526; State v. Johnson, 164 N.C. App. 1, 17, 595 S.E.2d 176, 185, disc. review. denied, 359 N.C. 194, 607 S.E.2d 659 (2004). Furthermore, “'[d]irect proof of conspiracy is rarely available, so the crime must generally be proved by circumstantial evidence.'” State v. Clark, 137 N.C. App. 90, 95,527 S.E.2d 319, 322 (2000) (quoting State v. Aleem, 49 N.C. App. 359, 363, 271 S.E.2d 575, 578 (1980)). “A conspiracy 'may be, and generally is, established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy.'” Id. (quoting State v. Whiteside, 204 N.C. 710, 712, 169 S.E. 711, 712 (1933)).
    Our Supreme Court has summarized the law of acting in concert as follows:
        “If 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.
        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, cert. denied, 537 U.S. 1005, 154 L. Ed. 2d 403 (2002) (internal citations and quotations omitted).
    Here, the evidence shows that while Garten was depositing his paycheck at the ATM, defendant called White's trailer. Defendant then directed Garten to drive him to White's trailer, where a gunman was lying in wait. The gunman stated that he knew Garten had an ATM card and told him he was lying when Garten denied it. The gunman then gave defendant the ATM card and directed him to accompany Garten back to the ATM machine. When Garten withdrewfunds from the ATM machine, defendant stood behind him and watched closely enough to discern that Garten had given the gunman the wrong security code. Upon their return to Tallman Circle, defendant fled with the money given to him by Garten. In the light most favorable to the State, a jury could reasonably conclude from this evidence that defendant conspired and acted in concert with a second person to rob Garten with a dangerous weapon. Cross, 345 N.C. at 717, 483 S.E.2d at 434. Accordingly, we find no error.
    No error.
    Chief Judge MARTIN and Judge JACKSON concur.
    Report per Rule 30(e).

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