Opinion
No. COA12–1309.
2013-06-4
STATE of North Carolina v. Ronald Edward McCRAY, Defendant.
Roy Cooper, Attorney General, by Alexandra M. Hightower, Assistant Attorney General, for the State. William D. Spence for defendant-appellant.
Appeal by defendant from judgments entered 7 June 2012 by Judge D. Jack Hooks, Jr. in Hoke County Superior Court. Heard in the Court of Appeals 26 February 2013. Roy Cooper, Attorney General, by Alexandra M. Hightower, Assistant Attorney General, for the State. William D. Spence for defendant-appellant.
DAVIS, Judge.
Ronald Edward McCray (“defendant”) appeals his convictions for robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and second-degree kidnapping. After careful review, we find no error.
Factual Background
The State presented evidence at trial tending to establish the following facts: On 16 July 2011, defendant and his wife, Amanda McCray (“Mrs.McCray”), drove from Raeford, North Carolina to Red Springs to pick up Tonyal Locklear (“Locklear”) and Jasmine Locklear (“Mrs.Locklear”). Defendant drove around for several hours while the group discussed committing a robbery. Defendant and Locklear suggested robbing the Robin Heights grocery in Raeford because, in addition to whatever money might be in the store's cash register, they knew that the store clerk kept lottery proceeds in a cigar box under the counter. While driving back to Raeford, it was agreed that Locklear would be the one to go inside the convenience store and actually commit the robbery.
Defendant pulled up to the side of the store and parked. While defendant, Mrs. McCray, and Mrs. Locklear waited in the car, Locklear went inside the store, carrying a black revolver. Once inside, he pointed the revolver at the head of the cashier, Faisal Olaya (“Olaya”), grabbed his arm, and moved him around the counter to where the cash register was located. Locklear then ordered Olaya to hand over all the money from the cash register and cigar box. After retrieving the money, Locklear pushed Olaya down onto the floor, kicked him once in the back, and fled the store.
When Locklear got back to the car, he jumped into the backseat, and defendant drove away. Locklear and defendant then split the money, which totaled approximately $1,500 in cash.
Defendant was subsequently charged with robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and second-degree kidnapping. Defendant moved to dismiss these charges at trial and the trial court denied defendant's motion. The jury found defendant guilty of all three charges. The trial court sentenced defendant to a presumptive range term of 97 to 126 months imprisonment for the robbery with a dangerous weapon conviction and 38 to 55 months imprisonment for the kidnapping charge with these sentences running concurrently. The court also sentenced defendant to 38 to 55 months imprisonment on the conspiracy charge with this sentence beginning to run at the expiration of the first sentence. Defendant gave notice of appeal in open court.
Analysis
I. Rule 404(b) Evidence
Defendant's first argument on appeal is that the trial court erred under Rules 404(b) and 403 of the North Carolina Rules of Evidence in admitting evidence of defendant's involvement in two crimes for which he was never charged. Specifically, defendant contends that the trial court should not have allowed Mrs. McCray to testify regarding defendant's participation in: (1) an armed robbery that occurred two weeks prior to the Robin Heights robbery; and (2) an armed robbery that occurred approximately two days afterward.
Rule 404(b) provides, in pertinent part, as follows:
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....
N.C. R. Evid. 404(b).
As our Supreme Court has explained, Rule 404(b) is “a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.” State v. Coffey, 326 N.C. 268, 278–79, 389 S.E.2d 48, 54 (1990) (emphasis in original). The Supreme Court has recently emphasized, however, that while “it is a rule of inclusion, Rule 404(b) is still ‘constrained by the requirements of similarity and temporal proximity.’ “ State v. Beckelheimer, 366 N.C. 127, ––––, 726 S.E.2d 156, 159 (2012) (quoting State v. Al–Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002)). Other crimes, wrongs, or acts are “similar” for purposes of Rule 404(b) if there are “some unusual facts” present in both instances tending to indicate that the same person committed both acts. State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 890–91 (1991).
With respect to temporal proximity, the length of time between the two incidents “must be considered in light of the specific facts of each case and the purposes for which the evidence is being offered.” State v. Hipps, 348 N.C. 377, 405, 501 S.E.2d 625, 642 (1998), cert. denied,525 U.S. 1180, 119 S.Ct. 1119, 143 L.Ed.2d 114 (1999). As our Supreme Court explained in Hipps:
For some 404(b) purposes, remoteness in time is critical to the relevance of the evidence for those purposes; but for other purposes, remoteness may not be as important.... [R]emoteness in time may be significant when the evidence of the prior crime is introduced to show that both crimes arose out of a common scheme or plan; but remoteness is less significant when the prior conduct is used to show intent, motive, knowledge, or lack of accident.
Id. (citations omitted).
The “more striking the similarities” between the facts of the crime charged and the facts of the other crime, wrong, or act, “the longer evidence of the [other] bad act remains relevant and potentially admissible for certain purposes.” State v. Gray, 210 N.C.App. 493, 507, 709 S.E.2d 477, 488 (2011), disc. review denied,––– N.C. ––––, 723 S.E.2d 540 (2012). Ultimately, however, the length of time between the two incidents “goes to the weight of the evidence rather than its admissibility.” Beckelheimer, 366 N.C. at ––––, 726 S.E.2d at 160. The trial court's determination as to whether the evidence of other crimes, wrongs, or acts falls within the ambit of Rule 404(b) raises a question of law, which is reviewed de novo on appeal. Id. at ––––, 726 S.E.2d at 159.
A. Attempted Robbery of Lucky Seven Mart
At trial, when the State called Mrs. McCray to testify regarding the two uncharged armed robberies, defendant objected, and the trial court conducted a voir dire examination of her. Mrs. McCray testified that approximately one week before the Robin Heights robbery, she, defendant, and Locklear all talked on the telephone about “robbing a store” because they were all “broke.”
After the phone conversation ended, defendant drove the group—which now included Mrs. Locklear—in his car to Red Springs to pick up a gun from a man Locklear knew. During the trip, the group decided to rob the Lucky Seven mart in Raeford because the store had poker machines and they believed that there would be “plenty of money.”
After Locklear obtained the handgun from his acquaintance, the group drove to the Lucky Seven mart and parked around the side of the building. Locklear and defendant then got out of the car and walked up to the store but discovered that it was closed. As the two men were walking back to the car, they broke into a car parked in front of the store and stole approximately $600 in cash. Locklear and defendant then got back into defendant's car, and defendant drove away.
At this point in the voir dire examination, the trial court ruled that there was a “reasonable” temporal proximity between the attempted armed robbery of the Lucky Seven mart and the Robin Heights armed robbery. The court also found a “striking similarity” between the two events given that both incidents involved: (1) the same participants; (2) the same gun; (3) the same type of location (stores with lottery or poker money); (4) the same vehicle; and (5) at least one of the same individuals getting out of the car. The court further found that the evidence of the Lucky Seven attempted robbery was probative of prior knowledge, intent, a common scheme or plan, and as “chain of events” evidence. The court determined that the evidence was “more probative than prejudicial” and thus ruled that it was admissible.
B. Robbery of Pedestrian
During trial, the State also sought to introduce evidence of another robbery involving defendant pursuant to Rule 404(b). To that end, the prosecutor made an offer of proof showing the following: (1) within two days after the Robin Heights robbery, defendant was driving in his car, along with his wife and the Locklears; (2) when Locklear saw a man walking outside a motel, he told defendant to pull over and let him out; (3) Locklear exited the vehicle and, using the same handgun that he used in the Lucky Seven and Robin Heights incidents, took the man's wallet at gunpoint; and (4) Locklear then returned to the car and defendant drove away.
Based on the State's offer of proof, the trial court found a “high degree of similarity” between the robbery of the pedestrian and the Robin Heights robbery in that they both involved: (1) the use of the same handgun; (2) the same four individuals; (3) the same vehicle; (4) the same driver; and (5) the same individual—Locklear—“perform[ing] the actual taking.” The court also noted the close temporal proximity of the two crimes. The trial court ruled that the evidence was probative of intent, knowledge, and a common scheme or plan and that the evidence's “probative value exceed[ed] any prejudicial effect.”
C. Admissibility under Rule 404(b)
At trial, Mrs. McCray testified, without objection from defendant, about the incident at the Lucky Seven mart and the armed robbery of the pedestrian. After each portion of Mrs. McCray's testimony, and in its final instructions, the trial court gave the jury a limiting instruction, directing the jurors to consider the evidence of these two incidents only for the purposes of finding intent, knowledge, or a common scheme or plan on the part of defendant.
Defendant acknowledges on appeal that he failed to object to the pertinent portions of Mrs. McCray's testimony when it was offered at trial. Accordingly, this Court's review of the trial court's admission of this evidence is limited to plain error review. To establish plain error, the defendant bears the burden of demonstrating “(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.” State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997).
Defendant first contends that the evidence regarding the incident at the Lucky Seven mart should not have been admitted because the robbery of that store was never completed. Thus, defendant contends, the only evidence of an uncharged crime was the evidence that defendant and Locklear, after discovering that the store was closed, broke into a vehicle in the parking lot and stole the money they found inside. The theft from the vehicle, defendant argues, is “totally different” than the Robin Heights armed robbery and thus should not have been admitted under Rule 404(b).
Defendant's argument fails for at least two reasons. First, contrary to defendant's suggestion, attempted robbery with a dangerous weapon is, indeed, a criminal offense. SeeN.C. Gen.Stat. § 14–87 (2011) (punishing both completed offense of robbery with a dangerous weapon as well as attempted offense).
Second, and more importantly, defendant's argument lacks merit because it sets up a false comparison between the vehicle break-in and the Robin Heights armed robbery in order to manufacture dissimilarity for purposes of Rule 404(b). The State's purpose in introducing the evidence of the events leading up to and culminating in the attempted robbery of the Lucky Seven mart was not to show that defendant—along with Locklear—had broken into a vehicle and stolen the cash inside. Rather, the purpose was to show the similarities between the planning, preparation, and commission of the attempted armed robbery of the Lucky Seven mart and the completed armed robbery of the Robin Heights grocery. See State v. Everette, 111 N.C.App. 775, 780, 433 S.E.2d 802, 804 (1993) ( “Where the facts show the crimes were related by facts indicating similar place, time, type of crime, method of perpetration and principals, the evidence is admissible” under Rule 404(b).).
Defendant next argues that the attempted robbery of the Lucky Seven and the armed robbery of the pedestrian outside the motel are not “substantially similar” to the Robin Heights robbery nor are the incidents sufficiently close in time to be admissible for purposes of showing intent, knowledge, or a common scheme or plan in this case. However, we conclude that the admission of the evidence of the Lucky Seven attempted robbery and the pedestrian robbery was proper under Rule 404(b). In reaching this conclusion, we are guided by our decisions in State v. Morgan, 183 N.C.App. 160, 645 S.E.2d 93 (2007), appeal dismissed and disc. review denied,362 N.C. 241, 660 S.E.2d 536 (2008), and State v. Hagans, 177 N.C.App. 17, 628 S.E.2d 776 (2006).
In Morgan, this Court held that evidence of two armed robberies occurring within 15 days of the robbery for which the defendant was charged was admissible to establish identity, motive, intent, common scheme or plan, knowledge, and opportunity to commit the crime pursuant to Rule 404(b). Morgan, 183 N.C.App. at 169–70, 645 S.E.2d at 101. This Court relied on the fact that the evidence tended to show that (1) the same perpetrators, including the defendant, were involved in all the robberies; (2) the establishments robbed shared similar features; and (3) all the robberies were committed in the same manner, with “one of the perpetrators brandish[ing] a gun at the victims at public establishments, demand[ing] money, fir[ing] a shot, st[ealing] property of others, and fl[eeing] the scene.” Id. at 169, 645 S.E.2d at 101.
Similarly, in Hagans, we upheld the admission of evidence of a robbery committed by the defendant one week before the armed robbery with which he was charged in order to show a common scheme or plan where “[t]he evidence tended to show: (1) the same three men participated in the earlier robbery; (2) the men wore dark clothing and covered their faces; (3) the same .38 revolver was used; (4) the same Cadillac was used; and (5) one man stayed behind in the car while the other two men robbed the store.” Hagans, 177 N.C.App. at 24, 628 S.E.2d at 782.
The evidence of the similarities between the attempted robbery of the Lucky Seven mart, the robbery of the pedestrian, and the Robin Heights armed robbery cannot be meaningfully distinguished from the evidence admitted under Rule 404(b) in Morgan and Hagans. Here, the evidence tended to show that roughly a week before the Robin Heights armed robbery and two days afterward, defendant was involved in two incidents which shared with the Robin Heights robbery the following factual similarities: (1) the same four participants were involved; (2) the same pistol was used; (3) the same vehicle was used and driven by the same person; and (4) the same person got out of the car to commit the intended robberies. The Lucky Seven and Robin Heights incidents also share the additional similarity that both locations were the same type of establishment—convenience stores with lottery or video poker money. See also Everette, 111 N.C.App. at 779–80, 433 S.E.2d at 804 (holding that “evidence tend[ed] to show a common scheme or plan on the part of defendant and his cohorts” where robberies were perpetrated in same manner, including defendant's acting as the getaway driver in all the robberies).
The “temporal proximity” of the events in this case also militates in favor of admissibility under Rule 404(b). The Lucky Seven attempted robbery occurred approximately one week before the Robin Heights robbery and the pedestrian robbery took place two days afterward. Such temporal proximity is similar to that which existed in Morgan (three robberies within 15 days) and Hagans (two robberies within a week). We conclude that the trial court did not err in ruling that the evidence of the attempted robbery of the Lucky Seven mart and the robbery of the pedestrian outside the motel was admissible under Rule 404(b).
Defendant attempts to rely on our decision in State v. Hamrick, 81 N.C.App. 508, 344 S.E.2d 316 (1986), arguing that factual similarity and temporal proximity, standing alone, fail to provide a proper basis for the admission of evidence under Rule 404(b). In Hamrick, the defendant was charged with, among other things, breaking and entering into a farm equipment supplier and stealing a tractor. Id. at 509, 344 S.E.2d at 317. At trial, the State presented evidence that the defendant, along with two other men, “had broken into other places and stolen tractors” during the two months before the larceny with which the defendant was charged. Id. at 510, 344 S.E.2d at 317.
On appeal, this Court rejected the State's contention that the evidence was admissible under Rule 404(b) to prove intent, design, or plan, explaining that, to be admissible under Rule 404(b), the evidence must tend to show the existence of an intent, design, or plan to commit the offense charged. Id. at 511, 344 S.E.2d 316,344 S.E.2d at 318. Because the evidence of the other tractor thefts tended only to show that “separate crime[s]” had occurred, without tending to establish an intent, design, or plan on the part of the defendant to commit the larceny with which he was charged, this Court held that the evidence should not have been admitted. Id., 344 S.E.2d at 317.
Here, unlike in Hamrick, the evidence relating to the attempted robbery of the Lucky Seven and the robbery of the pedestrian tends to show the existence of an intent, as well as a common scheme or plan, to commit the Robin Heights robbery. As the trial court observed in ruling on the admissibility of this evidence, there are “striking” similarities in all three crimes regarding the planning and commission of the crimes, who participated at each stage, the weapon used, the vehicle used, and the getaway driver. Because the attempted armed robbery of the Lucky Seven and the armed robbery of the pedestrian were planned and committed in a manner exceedingly similar to the manner in which the Robin Heights armed robbery was planned and committed, the evidence of these two uncharged crimes was probative—and, therefore, admissible under Rule 404(b)—in order show intent or a common scheme or plan on the part of defendant to commit the offense with which he was charged—the armed robbery of the Robin Heights grocery.
Nor are we persuaded that the present case is controlled by State v. Cook, 165 N.C.App. 630, 599 S.E.2d 67 (2004), or State v. Willis, 136 N.C.App. 820, 526 S.E.2d 191 (2000). In Cook, 165 N.C.App. at 632, 599 S.E.2d at 69, the defendant was charged with embezzling money while working at a fast food restaurant. At trial, the State presented evidence that the defendant had previously embezzled money while working as a cashier at a grocery store, arguing that the evidence was admissible to undermine the defendant's credibility. Id. at 635, 599 S.E.2d at 71.
This Court held that attacking a defendant's credibility is not a proper purpose for which evidence may be admitted under Rule 404(b) and awarded the defendant a new trial. Id. at 638, 599 S.E.2d 67,599 S.E.2d at 72–73. Here, however, unlike in Cook, there is nothing in the record suggesting that the State sought to introduce the uncharged crimes evidence for the purpose of attacking defendant's credibility or that the trial court admitted the evidence for this improper purpose.
In Willis, 136 N.C.App. at 820, 526 S.E.2d at 192, the defendant was charged with common law robbery. At trial, the prosecutor told the jury that the defendant had previously committed common law robbery and showed the jury copies of the indictment, the transcript of plea, and the judgment entered on his guilty plea. Id. at 821–22, 526 S.E.2d at 193. The State argued—and the trial court agreed—that these court documents were admissible to show identity, modus operandi, motive, or a common scheme or plan. Id. at 822, 526 S.E.2d at 193.
On appeal, this Court rejected the State's contention that the evidence of the defendant's prior robbery conviction was admissible under Rule 404(b). Because the prosecutor had done nothing more than put before the jury copies of the court documents from the earlier prosecution, we held that the admission of the evidence constituted error as there was no evidence regarding how the prior robbery was committed and thus no evidence of any factual similarities between the prior robbery and the robbery for which the defendant had been charged. Id. at 823, 526 S.E.2d 191,526 S.E.2d at 193–94. Consequently, we concluded that the evidence should not have been admitted. Id., 526 S.E.2d at 194.
The evidence here supplied substantially more factual information regarding the planning and perpetration of the uncharged crimes than did the indictment, transcript of plea, and judgment in Willis. Mrs. McCray testified in significant detail regarding both the Lucky Seven attempted robbery and the pedestrian robbery. It is this level of detail that enabled the trial court to determine that there existed sufficient factual similarities between those uncharged crimes and the Robin Heights armed robbery to properly admit the evidence pursuant to Rule 404(b).
D. Applicability of Rule 403
Defendant's final contention on this issue is that, even if admissible under Rule 404(b), the evidence of the Lucky Seven mart attempted robbery and the pedestrian robbery should have nevertheless been excluded under Rule 403 as its probative value was substantially outweighed by the danger of unfair prejudice. However, “[t]he balancing test of Rule 403 is reviewed by this [C]ourt for abuse of discretion, and we do not apply plain error ‘to issues which fall within the realm of the trial court's discretion.’ “ State v. Cunningham, 188 N.C.App. 832, 837, 656 S.E.2d 697, 700 (2008) (quoting State v. Steen, 352 N.C. 227, 256, 536 S.E.2d 1, 18 (2000)), cert. denied, 531 U.S. 1167, 121 S.Ct. 1131, 148 L.Ed.2d 997 (2001)). Moreover, even if the trial court's Rule 403 determination had been properly preserved for appellate review, we believe that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice.
E. Lack of Prejudice
Finally, even assuming arguendo that the trial court erred in admitting the evidence of the Lucky Seven mart attempted robbery and the pedestrian robbery, defendant cannot demonstrate that “a different result probably would have been reached but for the error ....“ Bishop, 346 N.C. at 385, 488 S.E.2d at 779. Mrs. McCray and Locklear—two of the individuals intimately involved in the Robin Heights armed robbery—testified in detail regarding defendant's participation in the planning and commission of the crime. Their testimony was unequivocal and uncontroverted. In light of this overwhelming evidence of defendant's guilt, he cannot establish that a different result probably would have been reached in the absence of the assumed error. See State v. Lawrence, 365 N.C. 506, 519, 723 S.E.2d 326, 334 (2012) (holding that defendant could not demonstrate plain error in light of abundant evidence of guilt). Defendant's argument is, therefore, lacking in merit.
II. Denial of Motion to Dismiss
Defendant also argues that the trial court erred in denying his motion to dismiss for insufficient evidence the charges of (1) robbery with a dangerous weapon; (2) conspiracy to commit robbery with a dangerous weapon; and (3) second-degree kidnapping. Whether the evidence is sufficient to withstand a motion to dismiss is a question of law, reviewed de novo on appeal. State v. Bagley, 183 N.C.App. 514, 523, 644 S.E.2d 615, 621 (2007). A defendant's motion to dismiss should be denied if there is substantial evidence of (1) each essential element of the offense charged; and (2) defendant being the perpetrator of the offense. State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002).
“Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). “In ruling on a motion to dismiss, the trial court is required to view the evidence in the light most favorable to the State, making all reasonable inferences from the evidence in favor of the State.” State v. Kemmerlin, 356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002). Contradictions and discrepancies are for the jury to resolve and do not warrant dismissal. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
A. Robbery with a Dangerous Weapon
Defendant was charged and convicted of robbery with a dangerous weapon under the theory of “acting in concert.” According to defendant, the evidence fails to show that he was aware that Locklear would use a gun to commit the robbery and thus the State failed to present sufficient evidence that defendant had the specific intent to commit armed robbery. Contrary to defendant's contention, however, the State was not required to prove that he had the specific intent to commit armed robbery in order to obtain a conviction under the theory of acting in concert.
In State v. Barnes, 345 N.C. 184, 233, 481 S.E.2d 44, 71,cert. denied,522 U.S. 876, 118 S.Ct. 196, 139 L.Ed.2d 134 (1997), and cert. denied,523 U.S. 1024, 118 S.Ct. 1309, 140 L.Ed.2d 473 (1998), our Supreme Court explicitly overruled the line of cases culminating in State v. Blankenship, 337 N.C. 543, 447 S.E.2d 727 (1994), which held that a defendant may be convicted of a specific intent crime by acting in concert only if the jury finds that the defendant had the requisite specific intent to commit that particular crime. In overruling Blankenship and its progeny, the Supreme Court in Barnes was careful to explain that “[t]he correct statement of the doctrine of acting in concert in this jurisdiction” is as follows:
“[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.’ “
Barnes, 345 N.C. at 233, 481 S.E.2d at 71 (quoting State v. Erlewine, 328 N.C. 626, 637, 403 S.E.2d 280, 286 (1991)).
Thus, in order for the jury to convict a defendant under the concerted action theory, “it is not strictly necessary ... that the defendant share the intent or purpose to commit the particular crime actually committed”; instead, all that is required is a “common purpose to commit a crime[.]” Erlewine, 328 N.C. at 637, 403 S.E.2d at 286 (emphasis in original); accord State v. Herring, 176 N.C.App. 395, 400, 626 S.E.2d 742, 746 (citing Barnes and Erlewine and rejecting defendant's contention that “the State needed to prove he knew that [his partner in crime] possessed a gun” in order to be convicted under doctrine of acting in concert), appeal dismissed and disc. review denied,360 N.C. 651, 637 S.E.2d 183 (2006), cert. denied,549 U.S. 1293, 127 S.Ct. 1848, 167 L.Ed.2d 342 (2007).
The Supreme Court's clarification of the law regarding the theory of acting in concert dooms defendant's argument. He admits in his brief that there was evidence that he, along with his wife and the Locklears, planned to rob the Robin Heights grocery and that they carried out this plan. He simply contends that he did not know that Locklear possessed a gun or that Locklear intended to use it during the robbery.
As we have already explained, however, evidence of such shared intent was not necessary in order to convict defendant of robbery with a dangerous weapon under the theory of acting in concert. See State v. Jackson, –––N.C.App. ––––, ––––, 716 S.E.2d 61, 66–67 (2011) (“Although the record does not reveal whether [defendant] shared the intent or purpose to rob [victim] with a dangerous weapon, this is not a necessary element under the theory of acting in concert.”) (emphasis in original); State v. Johnson, 164 N.C.App. 1, 12, 595 S.E.2d 176, 182 (holding, based on Erlewine, that “[w]hether or not defendant was aware that a gun was going to be used during the robbery is immaterial to whether he intended to participate in the robbery”), appeal dismissed and disc. review denied,359 N.C. 194, 607 S.E.2d 658–59 (2004). The trial court, therefore, properly denied defendant's motion to dismiss with respect to the armed robbery charge.
B. Conspiracy
Defendant next contends that the trial court should have dismissed the charge of conspiracy to commit robbery with a dangerous weapon. A criminal conspiracy is an agreement between two or more people to commit a substantive offense. State v. Dalton, 122 N.C.App. 666, 672, 471 S.E.2d 657, 661 (1996). “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.’ “ State v. Bindyke, 288 N.C. 608, 615–16, 220 S.E.2d 521, 526 (1975) (quoting State v. Smith, 237 N.C. 1, 16, 74 S.E.2d 291, 301 (1953)) (emphasis omitted).
As with his argument regarding the charge of robbery with a dangerous weapon, defendant contends that he could not be convicted of conspiracy to commit robbery with a dangerous weapon because the State failed to produce substantial evidence that defendant agreed—along with Mrs. McCray, Mrs. Locklear, and Locklear—to rob the Robin Heights grocery with a firearm or other dangerous weapon. In Johnson, we explained:
[I]t [i]s not essential for the parties to expressly agree to use a dangerous weapon prior to the robbery in order to submit a charge of conspiracy to commit robbery with a dangerous weapon to the jury. Rather, it [i]s only essential that there be evidence that the parties had a mutual, implied understanding to commit robbery with a dangerous weapon.
164 N.C.App. at 17, 595 S.E.2d at 185–86.
Viewed in the light most favorable to the State, the evidence at trial tended to show that defendant, his wife, and the Locklears drove around for several hours on 16 July 2011 planning to commit a robbery because they were “broke.” The group decided to rob the Robin Heights grocery because they knew that, in addition to the money in the cash register, the store clerk kept lottery money in a box under the counter. As defendant drove to the Robin Heights grocery, the group discussed whether the cashier had a gun because, as Locklear stated at trial: “[I]f you got a gun, don't you want to know if he got a gun?”
At trial, Locklear testified unequivocally that, at this point, it was “clear” to everyone in the car that he had a gun and that he was going to use it to commit the robbery. As Locklear stated on redirect examination, he was not “going to go in with [his] finger and say, ‘Give me the money from behind the counter[.]’ “
The evidence at trial further showed that defendant parked the car near the grocery, and Locklear got out while the others waited in the car. Once inside, Locklear pointed the gun in the cashier's face and ordered him to hand over the money in the cash register and cigar box under the counter. After taking the money, Locklear pushed the cashier down onto the floor and then, after kicking him, fled the store. When Locklear got back in the car, defendant drove away.
This evidence is sufficient to support a reasonable inference that defendant, along with the others, had a mutual understanding to rob the Robin Heights grocery using a firearm. See State v. Lamb, 342 N.C. 151, 155–56, 463 S.E.2d 189, 191 (1995) (“We hold that the evidence that defendant met with two other men, one of whom was armed; that the three men drove to the home of the victim; and that the three men then left the vehicle and entered the victim's home, robbed the victim, and shot him is substantial evidence from which the jury could find the robbery was carried out pursuant to a common plan to rob the victim. This supports the finding of guilty of conspiracy to commit robbery with a dangerous weapon.”).
State v. Suggs, 117 N.C.App. 654, 453 S.E.2d 211 (1995), replied upon by defendant, is distinguishable. In Suggs, the defendant was charged not with conspiracy to commit robbery with a dangerous weapon but rather with conspiracy to commit assault with a deadly weapon inflicting serious injury. Id. at 662, 453 S.E.2d at 215. The evidence at trial showed only that the defendant had a phone conversation with a man named Bateman about attacking a woman named Johnson; that the two men agreed that Bateman would break Johnson's legs or arms but never discussed the use of a weapon to commit the assault; and that the assault never occurred. Id. at 656–57, 453 S.E.2d at 213. This Court held that the conspiracy charge should have been dismissed because “there [was] no evidence of how Bateman was to inflict the severe injury on Johnson,” and “the mere fact that the defendant asked Bateman to inflict serious injury on Johnson does not necessarily imply the use of a deadly weapon.” Id. at 662, 453 S.E.2d 211,453 S.E.2d at 216.
Here, in contrast to Suggs, the evidence, considered in the light most favorable to the State, shows that (1) defendant drove Locklear, along with the rest of the group, to Locklear's friend's house to pick up the handgun used in the Robin Heights robbery; (2) on the day of the robbery, defendant drove the group to the Robin Heights store while they discussed the robbery and whether the cashier had a gun; and (3) everyone in the car was aware that Locklear had a gun when he got out of the car and committed the robbery. This evidence, unlike the evidence in Suggs, supports a reasonable inference that defendant, Mrs. McCray, Mrs. Locklear, and Locklear had a “mutual, implied understanding to commit robbery with a dangerous weapon.” Johnson, 164 N.C.App. at 17, 595 S.E.2d at 185–86. The trial court, accordingly, did not err in submitting the conspiracy charge to the jury.
C. Kidnapping
Defendant's final argument is that the trial court erred in failing to dismiss the second-degree kidnapping charge. North Carolina's kidnapping statute defines this offense, in pertinent part, as follows:
Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person, or any other person under the age of 16 years without the consent of a parent or legal custodian of such person, shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:
....
(3) Doing serious bodily harm to or terrorizing the person so confined, restrained or removed or any other person[.]
N.C. Gen.Stat. § 14–39(a)(3) (2011).
Relying on this Court's statement in State v. Boozer, 210 N.C.App. 371, 375–76, 707 S.E.2d 756, 761 (2011) (citation, quotation marks, and emphasis omitted), disc. review denied,––– N.C. ––––, 720 S.E.2d 667 (2012), that kidnapping is a specific intent crime and that the State must present substantial evidence that “the defendant's purpose was to terrorize the victim [,]” defendant contends that the State's evidence failed to establish that he had the specific intent to terrorize Olaya, the victim, in this case.
Defendant, once again, misconstrues the controlling caselaw. Defendant is correct that kidnapping is a specific intent crime such that the State, when prosecuting a defendant as the actual perpetrator of the kidnapping, must establish that the defendant confined, restrained, or removed the victim with the specific intent to commit one of the acts specified in § 14–39(a). See State v. Rodriguez, 192 N.C.App. 178, 187, 664 S.E.2d 654, 660 (2008) ( “Kidnapping is a specific intent crime, and therefore the State must prove that defendant unlawfully confined, restrained, or removed the victim for one of the specified purposes outlined in the statute.”).
Defendant, however, was charged and convicted of kidnapping under the acting in concert theory of criminal liability. As this Court has observed, “[o]ur Supreme Court has expressly rejected the concept that for a defendant to be convicted of a crime under an acting in concert theory, he must possess the mens rea to commit that particular crime.” State v. Bellamy, 172 N.C.App. 649, 668, 617 S.E.2d 81, 95 (2005) (referring to Barnes overruling Blankenship ), appeal dismissed and disc. review denied,360 N.C. 290, 628 S.E.2d 384 (2006).
Thus, contrary to defendant's contention, the issue is not whether he had the intent to terrorize Olaya but rather whether the kidnapping occurred “in pursuance of the common purpose” or as a “natural or probable consequence thereof.” Erlewine, 328 N.C. at 637, 403 S.E.2d at 286. The State does not argue—nor does the evidence in the record suggest—that the kidnapping occurred pursuant to the common purpose of the armed robbery. Instead, the State contends that the kidnapping occurred as a natural or probable consequence of the robbery.
In determining what is a natural or probable consequence, this Court has observed that the critical question is whether the collateral crime is a “foreseeable outgrowth of the common plan.” State v. Clagon, 207 N.C.App. 346, 351, 700 S.E.2d 89, 92–93 (2010). As such, the test is whether the commission of the collateral crime is “ ‘within the normal range of outcomes that may be expected to occur if nothing unusual has intervened.’ “ Bellamy, 172 N.C.App. at 669, 617 S.E.2d at 95 (quoting Roy v. United States, 652 A.2d 1098, 1105 (D.C.1995)).
Based on the evidence presented at trial, we conclude that the kidnapping was a natural and probable consequence of the armed robbery. It is reasonably foreseeable that, during an armed robbery of a convenience store, the perpetrator would force the store clerk behind the counter and down onto the floor at gunpoint and then use physical force against the clerk before fleeing. Defendant's argument is, accordingly, overruled.
We note that defendant makes no argument before this Court that his convictions for both robbery with a dangerous weapon and kidnapping violate the rule against double jeopardy set out by our Supreme Court in State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978). Therefore, we do not address that issue.
Defendant further contends that there was no evidence that it was Locklear's purpose to “terrorize” Olaya. “Terrorizing,” for purposes of § 14–39(a)(3), requires more than the intent to place the victim in a state of fear; it requires “ ‘putting [the victim] in some high degree of fear, a state of intense fright or apprehension.’ “ State v. Moore, 315 N.C. 738, 745, 340 S.E.2d 401, 405 (1986) (citing State v. Jones, 36 N.C.App. 447, 244 S.E.2d 709 (1978)). In determining the sufficiency of the evidence, “the test is not whether subjectively the victim was in fact terrorized, but whether the evidence supports a finding that the [perpetrator]'s purpose was to terrorize” the victim. Id. The presence or absence of the perpetrator's intent to terrorize the victim may be inferred by the fact-finder from the circumstances surrounding the events constituting the alleged crime. State v. White, 307 N.C. 42, 48, 296 S.E.2d 267, 271 (1982).
When viewed in the light most favorable to the State, the evidence is sufficient to support a reasonable inference that Locklear confined, restrained, or removed Olaya from one place to another with the intent to terrorize him. Olaya testified that Locklear, upon entering the grocery, pointed a pistol in his face, grabbed his arm, and ordered Olaya to give him all the money. After collecting the money from the cash register and the lottery proceeds, Locklear pushed Olaya down onto the floor and kicked him in the back before fleeing. See State v. Barnes, 110 N.C.App. 473, 477, 429 S.E.2d 765, 767 (1993) (“Considering the evidence in the light most favorable to the State, resolving all contradictions and inconsistencies in the State's favor, we find the State presented sufficient evidence to show that the defendant intended to and in fact did put the victim in an intense state of fright or apprehension when [defendant and accomplices] placed the victim in the limousine and confined him there so that he would agree to retrieve the stolen items.”).
Olaya testified about the fear he experienced during the robbery due to the fact that (1) Locklear had a gun pointed in his face; and (2) he was alone in the store and could not have fought back had Locklear decided to shoot or otherwise harm him. While not determinative of the perpetrator's intent to terrorize, “the victim's subjective feelings of fear ... are relevant.” State v. Baldwin, 141 N.C.App. 596, 604, 540 S.E.2d 815, 821 (2000). In light of the evidence detailing how the armed robbery was committed and Olaya's testimony regarding his severe state of fear during the incident, we conclude that the evidence is sufficient to support a reasonable inference that Locklear confined, restrained, or removed Olaya with the intent to terrorize him. Accordingly, defendant's arguments regarding the denial of his motion to dismiss the kidnapping charge lack merit.
Conclusion
For the reasons stated above, we conclude that defendant received a fair trial free from error.
NO ERROR. Judges HUNTER and McCULLOUGH concur.
Report per Rule 30(e).