Opinion
No. COA02-1448
Filed 4 November 2003 This case not for publication
Appeal by defendant from judgment entered 14 March 2002 by Judge Melzer A. Morgan in Forsyth County Superior Court. Heard in the Court of Appeals 15 September 2003.
Attorney General Roy Cooper, by Assistant Attorney General Scott K. Beaver, for the State. James N. Freeman, Jr., for defendant-appellant.
Forsyth County Nos. 01 CRS 60566 01 CRS 60568.
Defendant was indicted on four charges of robbery with a dangerous weapon and one charge of attempted robbery with a dangerous weapon. Defendant was found not guilty on two of the charges of robbery with a dangerous weapon and on the charge of attempted robbery with a dangerous weapon, but guilty on the remaining two charges of robbery with a dangerous weapon. Defendant appeals.
Defendant was convicted of robbing William Brown and Diane Jobson in Winston-Salem in March 2001. On 22 March 2001, William Brown arrived in the parking lot of his apartment complex between twelve-thirty and one o'clock in the morning. Mr. Brown noticed that a car had followed him into the parking lot. As Mr. Brown was walking to his front door from his car, he heard someone yell, "and the next thing I did was turn around and I seen the .40 caliber in my face." The man holding the gun demanded money from Mr. Brown. After taking Mr. Brown's money and cell phone, the man ran back to the car that had followed Mr. Brown into the complex. Mr. Brown identified the person holding the gun as Ryan Smith.
On 26 March 2001, Diane Jobson drove into her parking spot at her apartment complex at around midnight. When she tried to back out of the spot to better align the car in the spot, she saw that a dark car was slowly passing behind her. Ms. Jobson testified that she saw several young black teenagers in the car. Ms. Jobson got out of her car and went up the stairs to her second floor apartment. Just as she was about to open the door, a male told her, "[s]top." She turned to find a black male wearing a toboggan — like hat pointing a gun at her. The man initially demanded her purse, but gave it back to her and demanded that she retrieve her money from her purse. The man impatiently demanded that Ms. Jobson hurry and put the gun to her head. After getting the money, the man ran down the stairs. Ms. Jobson saw him run through the parking lot and get into the back seat of a car that was parked in the parking lot.
Ms. Jobson called the police. After talking with police officers at her apartment for about 20 to 30 minutes, they told her that a car had been pulled over in a shopping center parking lot and asked her to go with them to see if she could make an identification. The officers drove Ms. Jobson to the shopping center. She identified the car and the man who had pulled the gun and taken her money. The man was still wearing the toboggan that he had worn during the robbery. Ms. Jobson identified Ryan Smith as the man who had robbed her.
On the night of 26 March 2001, police detained Ryan Smith, Brandon Porter and the defendant. No money or weapons were found on the defendant's person. The magistrate released defendant that night for lack of probable cause to hold him. Before defendant's trial, Brandon Porter and Ryan Smith each pled guilty to four counts of robbery with a dangerous weapon and one count of attempted robbery with a dangerous weapon based on the same five incidents from which defendant's charges arose. At defendant's trial, Porter and Smith both testified. Porter testified that the defendant robbed Ms. Jobson and was in the car during the robbery of Mr. Brown. Porter also testified that he, Smith and the defendant committed the robberies in order to obtain money to pay the defendant's probation fees.
Ryan Smith's testimony was similar to Porter's. Smith testified that defendant had robbed Ms. Jobson. He also testified that the reason for committing the robberies was to obtain money to pay the defendant's probation fees.
The defendant testified that he was not with Porter and Smith on 22 March 2001. Defendant admitted to being in the car with Porter and Smith on 26 March 2001, but claimed that they were only going out to look for girls. He testified that he had not agreed to rob anyone that evening and was unaware that Smith had done so.
Defendant was convicted of two counts of robbery with a dangerous weapon from William Brown and Diane Jobson. Defendant appeals and argues: (1) that his trial counsel's failure to object to inadmissible and prejudicial testimony from Porter and Smith concerning his probation amounted to ineffective assistance of counsel; (2) that the trial court erred in allowing Smith to testify regarding a prior robbery and (3) that the trial court erred in denying defendant's motion to dismiss the charges for insufficiency of the evidence. These arguments are unpersuasive. In the trial, we find no error.
Defendant argues that Porter and Smith's testimony concerning his probation was inadmissible and highly prejudicial. He argues that his trial counsel's failure to object to the admission of this testimony amounted to ineffective assistance of counsel. In order to establish ineffective assistance of counsel, a defendant must meet the ineffective counsel standard set out in Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674 (1984), and adopted in State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985). This is a stringent test which requires a defendant to show that (1) counsel's performance was deficient and (2) the deficient performance prejudiced the defense. Braswell, 312 N.C. at 562, 324 S.E.2d at 248. "The fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings." Id. at 563, 324 S.E.2d at 248.
Defendant contends that the testimony regarding his probation was improperly admitted under N.C.R. Evid. 404(b). Defendant argues that under Rule 404(b) prior convictions are not admissible because they are evidence of prior bad acts. Defendant relies on State v. Wilkerson, 356 N.C. 418, 571 S.E.2d 583 (2002) (reversing State v. Wilkerson, 148 N.C. App. 310, 559 S.E.2d 5 (2002) for the reasons stated in the dissent). Wilkerson establishes that "the bare fact of a prior conviction" to show one of the enumerated purposes of Rule 404(b) is not admissible. Wilkerson, 148 N.C. App. at 319, 559 S.E.2d at 11. In Wilkerson, the State had the Deputy Clerk of the Superior Court take the stand and read into the record a list of the prior convictions of the defendant that were on file. Id. at 320, 559 S.E.2d at 11. In the instant case, the testimony showed only that defendant was on probation and was admitted under Rule 404(b) to show the defendant's motive for participating in the robberies. Because the testimony was not just "the bare fact of a prior conviction," and was offered to show motive under Rule 404(b), it was admissible.
However, without regard for the evidence's admissibility, the defendant has failed to show ineffective assistance of counsel. Defendant has failed to show a reasonable probability that the outcome of the trial would have been different. After Porter and Smith testified, the State called the defendant's probation officer, Hal McNeely, to testify, without objection, as to the defendant's whereabouts on one of the nights of the robberies. McNeely testified that he was employed by the North Carolina Department of Correction in the intensive probation division and that the defendant was under his supervision. Defendant cannot show that there would have been a different result without the testimony of Porter and Smith regarding defendant's probation because defendant's probation was testified to, without objection, by another witness. Accordingly, we overrule defendant's assignment of error.
Defendant also argues that the trial court erred in allowing Smith to testify about a previous robbery ("the Motor Road robbery") that allegedly involved the defendant. The State offered evidence about the circumstances of the prior robbery under Rule 404(b) to show a common scheme or plan to the robberies for which defendant was convicted. Defendant objected that the prior robbery was not sufficiently similar to be admissible under Rule 404(b). Evidence of the circumstances of other crimes is admissible to prove a common scheme or plan if it tends to show the existence of a plan or design to commit the offense charged. State v. Hamrick, 81 N.C. App. 508, 511, 344 S.E.2d 316, 318 (1986). To be admissible there must be some unusual facts present in both crimes or particularly similar acts which would indicate that the same person committed both crimes. State v. Hyatt, 355 N.C. 642, 661, 566 S.E.2d 61, 74 (2002) (quoting State v. Riddick, 316 N.C. 127, 133, 340 S.E.2d 422, 426 (1986)), cert. denied, Hyatt v. North Carolina, 537 U.S. 1133, 154 L.Ed.2d 823 (2003). In Hyatt, the court found sufficient similarity where the perpetrator captured lone females, took them to isolated locations in Buncombe County, and committed or attempted to commit the same types of crimes against them by using or threatening to use a knife. Hyatt at 661-62, 566 S.E.2d at 74. Defendant argues that because the victim of the Motor Road robbery was robbed while he was still in his car, and not on his way into an apartment, there is not sufficient similarity between the events to make evidence of the Motor Road robbery admissible under Rule 404(b). We disagree. In each of the three robbery situations the victim, while alone, was approached in an apartment complex at night by one individual carrying a gun, a vehicle was left in a "getaway" position with another individual or individuals inside and the robber returned to the car following the robbery. The Motor Road robbery was sufficiently similar as to be admissible under Rule 404(b) to show a common scheme or plan. Accordingly, we overrule defendant's assignment of error.
Defendant also argues that the trial court erred in denying his motion to dismiss for insufficiency of the evidence. Defendant was found guilty of two counts of robbery with a dangerous weapon by acting in concert with Smith. Defendant points to the fact that Porter and Smith testified that defendant robbed Jobson, but that Jobson identified Smith as the robber. Defendant also argues that the State failed to show any evidence that defendant was acting in concert on the Brown robbery as Brown testified only to seeing Smith. Defendant contends that in light of these discrepancies and the weakness of Porter and Smith's testimony as individuals already convicted of these crimes, but not yet sentenced, that the State failed to present sufficient evidence.
In a motion to dismiss in a criminal action, "all the evidence admitted, whether competent or incompetent, must be considered by the trial judge in the light most favorable to the State, giving the State the benefit of every reasonable inference that might be drawn therefrom." State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). Any contradictions or discrepancies in the evidence are to be resolved by the jury. Id.
A defendant may be convicted of a crime under the acting-in — concert principle "so long as he is present at the scene of the crime and the evidence is sufficient to show that he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose . . . ." State v. Joyner, 297 N.C. 349, 357, 255 S.E.2d 390, 395 (1979). Here, the testimony of both Porter and Smith was competent evidence and showed a common scheme or plan and placed defendant at the scene of each crime. Any contradictions in the evidence or issues of credibility were properly left for the jury to resolve. We conclude that the trial court did not err in denying the defendant's motion. Accordingly, defendant's assignment of error fails.
No error.
Judges McCULLOUGH and STEELMAN concur.
Report per Rule 30(e).