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