Opinion
No. COA 15–458.
01-05-2016
STATE of North Carolina v. Raymond Lee CROOK, Jr., Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Perry J. Pelaez, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Jillian C. Katz, for Defendant–Appellant.
Attorney General Roy Cooper, by Assistant Attorney General Perry J. Pelaez, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Jillian C. Katz, for Defendant–Appellant.
Opinion
Appeal by Defendant from judgment entered on 17 September 2014 by Judge Bradley B. Letts in Buncombe County Superior Court. Heard in the Court of Appeals 21 October 2015.
HUNTER, JR. ROBERT N., Judge.
Raymond Lee Crook Jr. (“Defendant”) appeals from a jury verdict convicting him of two counts of attempted robbery with a dangerous weapon. Defendant contends the trial court erred in denying Defendant's motions to dismiss the charge of attempted robbery with a dangerous weapon as to Martha Dorsey Cole (“Mrs.Cole”) for insufficient evidence and both charges of attempted robbery with a dangerous weapon. Defendant also contends the indictments charging him with robbery with a dangerous weapon have fatal variances. Defendant further contends the trial court committed plain error when it failed to instruct the jury that each charge of attempted robbery with a dangerous weapon must be considered separately and independently. We disagree and hold the trial court committed no error.
I. Factual and Procedural History
On 3 March 2014, a grand jury indicted Defendant on two counts of robbery with a dangerous weapon. Both indictments stated Defendant “unlawfully, willfully, and feloniously did take, steal and carry another's personal property by means of an assault consisting of having in possession and threatening the use of a handgun.” Defendant's jury trial began on 15 September 2014. The State's evidence, in part, tended to show the following.
The State first called Leonard Ray Cole (“Mr.Cole”), a minister, to testify. After doing some grocery shopping, the Coles walked to their car. Mr. Cole explained what happened after the Coles put the groceries in their car.
And then all of a sudden there was just a big commotion going on in front of the car. This man come over and had landed right on the front of the car with his arm up on the windshield just like he'd lost control of what he was doing. We didn't know what was going on. And I looked at him and I said, what are you doing? And then all of a sudden he came around to my side where I was standing and he pulled a gun and put it on me and he told me, he said, get in the car, get in the car.
Next, Mr. Cole described the gun: “it was a pistol, a black pistol ... No, it wasn't a revolver. It was just a slim black pistol.” In spite of the gun, Mr. Cole refused to abide by Defendant's command to get in the car. He made up his mind that if he was to die, it would be right on the spot.
At that time, Mr. Cole grabbed the gun, pushing it down to avoid being shot. Mr. Cole described the confrontation:
I was expecting to be shot any minute. I just knew we were going to be killed because I had resisted him and I was fighting against him wrestling with the gun to keep him from shooting me. And we were both, feared for our lives. It was just awful trauma.
And we kept wrestling around there and we wrestled around back toward the back of the car and he kept saying give me your money, give me your money. I said, I don't have no money to give you. And we kept scuffling around there until during the scuffle and the pushing and all I fell right flat on my back in that parking lot on the asphalt and I knew right then, I knew he was going to kill me for sure. I just was, I was so fearful. I knew that that would be the end of me. I could just almost feel like the bullets was going to come straight at me.
After Mr. Cole fell, Defendant took off running. He explained that Defendant ran because some people were coming. Mr. Cole also explained that he did not give Defendant his wallet, money or anything. Mrs. Cole came around the car to assure Mr. Cole was okay. Then, Mr. Cole called the police. The manager of Earth Fare allowed the Coles into his office to wait for the police. The Coles spoke to Officer Rice and filled out a report. Mr. Cole described Defendant as wearing a black scarf around his face, a dark leather type coat, and khaki pants. After the Coles spoke with the officer, another officer radioed in. The officers informed the Coles that they might have found the person. Mr. Cole positively identified Defendant. Mr. Cole was “a hundred percent sure” the man was the same person who attacked him outside Earth Fare. The State called Mrs. Cole to testify. Mrs. Cole described her trip to Earth Fare with her husband to the jury. After shopping, the Coles returned to their car and Mr. Cole was putting the groceries in the car. At that time, Mrs. Cole saw the reflection of a man approaching in the car's side mirror. She heard a loud clatter. Startled, she turned around ...
I saw a gun go into my husband. And I heard him say, get in the car. And he looked at me, get in the car, you know, with it in my husband ... I got the keys and I got out of the car and slammed the door and I ran.
I ran, and all I know to do, I saw no one and I just screamed to the very top of my voice, to the very top to get help, Jesus no! And I just screamed and I was looking and I just knew, I just knew I was going to be killed. My husband was going to be killed ... And so I kept screaming, help, he's got a gun! And I motioned, he's got a gun! Help!
Mrs. Cole continued, describing the gun as “wide like with a barrel, you know how they look square ... It just—a gun to me means kill is what a gun means to me ... from my best remembering, it was black.” Mrs. Cole testified that her husband grabbed Defendant's gun and wrestled with him. She also explained that Defendant did not get any money from her or Mr. Cole. Mrs. Cole stated that Defendant took off running after her husband fell down.
Following the Coles' testimony, the State called Michael Ivey (“Ivey”) to testify. Ivey, a retired administrator with the City of Fort Worth, Texas, was behind the Coles in the checkout line at Earth Fare on 7 January 2014. Ivey testified that after seeing the Coles during checkout, he saw them again as he was walking to his car. Ivey explained:
there were two people, Mr. Cole and another person, standing on the other side of the car, and Ms. Cole was screaming.... I didn't get a very good look at him until the two men came to the back of the car, but I could just tell that there was, there were two men there and there seemed to be some problem, an argument of some kind going on. And I couldn't really tell what Ms. Cole was screaming other than at some point I became aware that she was screaming, he has a gun.
Next, Ivey identified the gun as “a common semiautomatic pistol ... like a Sig Sauer or shaped like that.” He testified that he was not close enough to determine any other characteristics of the gun. Ivey described Defendant as a Caucasian who wore jeans, a sweatshirt and with a hood that was pulled up. Then, Ivey explained that Mr. Cole fell down after “tussling over a bag” with Defendant. According to Ivey, Defendant “started walking very fast” away from Earth Fare because people were headed towards the Coles. The State called Officer Sean Davis (“Officer Davis”), a police officer for the Asheville Police Department, to testify. On 7 January 2014, around one in the afternoon, Officer Davis was working in that capacity when he responded to a call at Earth Fare. Officer Davis, along with other officers, searched the surrounding area in close proximity with Earth Fare for a suspect. The officers found Defendant hiding in a “culvert.” Officer Davis placed Defendant in handcuffs and escorted him to another officer. After the other officer took custody of Defendant, officers found a firearm approximately 70 feet from the culvert where they found Defendant. Officer Davis waited for someone from the forensics division to come collect the gun.
The State of North Carolina rested following other testimonies. Defense made a motion to dismiss based on the theory that the State failed to meet its burden of establishing all of the elements of the charged crimes. In the court's discretion, the court denied defense's motion to dismiss.
The defense's evidence, in part, tended to show the following. Defendant testified on his own behalf. On 7 January 2014, Defendant was at Earth Fare. Defendant described what happened while at Earth Fare.
I was sitting there smoking a new herbal incense called K2 ... [K2][is] a, it's a serious bad drug from what I've heard in the past year, but I didn't know that at the time, and somebody had passed me some of it, and I smoked it in the parking lot at the Earth Fare ... After smoking it, I sat in the car, and I seen two people approaching their vehicle, which was right across from my vehicle. And I looked around in the car, and I grabbed my son's toy gun, and I went to, I guess, rob the victims, Mr. And Mrs. Cole.
I approached the victim, Mr. Cole, and I told him to give me his money, and he said, no, and he grabbed the gun and grabbed my arm, and he was jerking with me and wrestling around with me. We wrestled around for a few seconds, I guess. He fell back and then he was pulling me down with him, and when I finally got loose I just kind of stuck the gun under my shirt, and I ran off.
Then, Defendant explained it was not his intention to harm Mr. Cole. Defendant testified that Mrs. Cole was on the driver side of the car when he approached. Defendant explained that he did not point the gun at Mrs. Cole nor spoke to her. He denied ever telling Mr. Cole to get inside the car. He also denied hitting Mr. Cole. Defendant further denied ever sticking the gun in Mr. Cole.
Next, Defendant testified that after Mr. Cole fell to the ground, he tucked the gun under his shirt and “jogged” away from Earth Fare. He stated that he threw the gun in some bushes before getting into the culvert. Defendant described the gun as a “pump type Airsoft gun” that is not operated with a CO2 cartridge. Defendant testified that he was scared regarding the incident.
The defense rested following Defendant's testimony. There was no rebuttal from the State. At the close of all evidence, defense renewed its motion to dismiss. The trial court denied defense's motion to dismiss.
At the jury charge, the trial court instructed the jury on attempted robbery with a dangerous weapon. During the jury charge, the trial judge stated the following:
When you retire to consider your verdicts you will be provided with two verdict sheets and I have these for you. I have also delineated, one of them addresses the issues related to Ms. Martha Cole and one to Mr. Leonard Cole. And I have their names on each verdict sheet, okay? ... In discussing both of these charges the charges are identical, they're the same. They just deal with Mr. Cole and Ms. Cole. So for that reason I'm going to instruct you on the law together at one time, okay?
Defendant did not object to the trial judge's manner of instruction.
The jury found Defendant guilty of two counts of attempted robbery with a dangerous weapon. On 17 September 2014, the trial court sentenced Defendant to two consecutive terms of eighty-eight to one-hundred and eighteen months of imprisonment. Defendant entered a Notice of Appeal on the record. On 17 September 2014, the trial court entered an Order of Appellate Entries.
II. Jurisdiction
Jurisdiction lies in this Court pursuant to N.C. Gen.Stat. § 7A–27(b), which provides for an appeal of right to the Court of Appeals for any final judgment of a superior court.
III. Standard of Review
“This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). “A valid bill of indictment is essential to the jurisdiction of the Superior Court to try an accused for a felony and have the jury determine his guilt or innocence, ‘and to give authority to the court to render a valid judgment.’ “ State v. Moses, 154 N.C.App. 332, 334, 572 S.E.2d 223, 226 (2002) (quoting State v. Ray, 274 N.C. 556, 562, 164 S.E.2d 457, 461 (1968)). As this Court recently explained, “North Carolina law has long provided that ‘[t]here can be no trial, conviction, or punishment for a crime without a formal and sufficient accusation. In the absence of an accusation the court a[c]quires no jurisdiction [whatsoever], and if it assumes jurisdiction a trial and conviction are a nullity.’ “ State v. Marshall, 188 N.C.App. 744, 748, 656 S.E.2d 709, 712–13 (2008) (quoting State v. Kelso, 187 N.C.App. 718, 654 S.E.2d 28, 31 (2007). In other words, an indictment must allege every element of an offense in order to confer subject matter jurisdiction on the court.
“In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N .C.R.App. P. 10(a)(4). The North Carolina Supreme Court “has elected to review unpreserved issues for plain error when they involve either (1) errors in the judge's instructions to the jury, or (2) rulings on the admissibility of evidence.” State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996).
IV. Analysis
A. Motion to dismiss
“Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000) (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)).
“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 making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L.Ed.2d 818 (1995). “The defendant's evidence, unless favorable to the State, is not to be taken into consideration.” State v. Jones, 280 N.C. 60, 66, 184 S.E.2d 862, 866 (1971).
“Under N.C.G.S. § 14–87(a), ‘[t]he essential elements of robbery with a dangerous weapon are: (1) an 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. Rogers, 227 N.C.App. 617, 622, 742 S.E.2d 622, 626 (2013) (quoting State v. Gwynn, 362 N.C. 334, 337, 661 S.E.2d 706, 707–708 (2008)). The essential elements of attempted robbery with a dangerous weapon are: “(1) the unlawful attempted taking of personal property from another; (2) the possession, use or threatened use of a firearm or other dangerous weapon, implement or means; and (3) danger or threat to the life of the victim.” State v. Van Trusell, 170 N.C.App. 33, 37, 612 S.E.2d 195, 198 (2005) (quoting State v. Rowland, 89 N.C.App. 372, 376, 366 S.E.2d 550, 552 (1988)). The North Carolina Supreme Court in State v. Allen, 317 N.C. 119, 343 S.E.2d 893 (1986), outlined the Allen test for dealing with cases where the element of use or threatened use of a firearm or other dangerous weapon is at issue. The rules are as follows:
(1) When a robbery is committed with what appeared to the victim to be a firearm or other dangerous weapon capable of endangering or threatening the life of the victim and there is no evidence to the contrary, there is a mandatory presumption that the weapon was as it appeared to the victim to be. (2) If there is some evidence that the implement used was not a firearm or other dangerous weapon which could have threatened or endangered the life of the victim, the mandatory presumption disappears leaving only a permissive inference, which permits but does not require the jury to infer that the instrument used was in fact a firearm or other dangerous weapon whereby the victim's life was endangered or threatened. (3) If all the evidence shows the instrument could not have been a firearm or other dangerous weapon capable of threatening or endangering the life of the victim, the armed robbery charge should not be submitted to the jury.
State v. Holt, ––– N.C.App. ––––, ––––, 773 S.E.2d 542, 546 (2015).
On appeal, Defendant contends the trial court erred in denying Defendant's motions to dismiss the charge of attempted robbery with a dangerous weapon as to Mrs. Cole for insufficient evidence. We are not persuaded.
Based on the evidence presented at trial, Defendant's motion to dismiss the charge of attempted robbery with a dangerous weapon as to Mrs. Cole was properly denied. There was substantial evidence of each essential element of the offense charged, and of the lesser offense. There was unequivocal evidence that Defendant was the perpetrator. Evidence presented at trial tended and did show that Defendant attempted to rob Mrs. Cole. Defendant testified that after smoking K2 he intended to rob Mr. and Mrs. Cole. The Coles testified that Defendant approached the car from the driver's side where Mrs. Cole was located and struck the windshield. There was evidence that Defendant used or threatened use of a firearm or other dangerous weapon. Defendant testified that he grabbed his son's gun to rob Mr. and Mrs. Cole. Mr. Cole testified that the gun was “a pistol, a black pistol.” Mrs. Cole testified that the gun was “wide like with a barrel ... and black.” Ivey, one of the many witnesses to the incident, testified that the gun was “a common semiautomatic pistol ... like a Sig Sauer or shaped like that.”
Also, there was substantial evidence that Mrs. Cole's life was endangered or threatened. Mrs. Cole testified that she knew she was going to be killed and kept screaming, “Help, he's got a gun!” Finally, there was unequivocal evidence that Defendant was the perpetrator. Defendant admitted that he was present at Earth Fare and intended to rob Mr. and Mrs. Cole.
Defendant further contends the trial court erred in denying Defendant's motion to dismiss both charges of attempted robbery with a dangerous weapon because the airsoft gun used by Defendant was not a dangerous weapon capable of endangering or threatening life. Defendant's argument is without merit.
Based on the evidence presented at trial, Defendant's motion to dismiss both charges of attempted robbery with a dangerous weapon was properly denied. As previously discussed, there was substantial evidence that: (1) Defendant attempted to rob Mrs. Cole; (2) Defendant used or threatened use of a firearm or dangerous weapon; and (3) Mrs. Cole's life was endangered or threatened. Also, there was evidence that Defendant was the perpetrator as it relates to the charged crime against Mrs. Cole.
As to Mr. Cole, there was evidence that Defendant attempted to rob Mr. Cole. Defendant testified that he grabbed his son's gun intending to rob Mr. and Mrs. Cole. The State presented evidence that Defendant used or threatened use of a firearm or dangerous weapon. Mr. Cole testified Defendant came around to his side and “[Defendant] pulled a gun and put it on me and he told me, he said, get in the car, get in the car.” Evidence presented also showed that Mr. Cole's life was endangered or threatened. Mr. Cole further testified “I was expecting to be shot any minute. I just knew we were going to be killed because I had resisted him ... It was just awful trauma ... I could just almost feel like the bullets was going to come straight at me.”
Defendant's second contention specifically challenged whether, as it relates to both charges, there was substantial evidence that he used or threatened use of a firearm or other dangerous weapon. In applying the Allen test, Defendant's contention fails. Evidence presented by the State, described the gun as it appeared to the Coles, and other witnesses to the incident. Those descriptions, in part, were that the gun was: (1) “a pistol, a black pistol”; (2) a “wide like with a barrel ... and black”; and (3) “a common semiautomatic pistol ... like a Sig Sauer or shaped like that.” Evidence presented by Defendant, on his own behalf, described the gun as a “pump type Airsoft gun” that is not operated with a CO2 cartridge. Therefore, because there was contradicting evidence, there was no mandatory presumption that the weapon was as it appeared to the Coles. Nonetheless, under rule 2 of the Allen test, there was a permissive inference that permitted the jury to infer that the weapon used was in fact a firearm or other dangerous weapon whereby the Coles' lives were endangered or threatened. The jury made that exact inference in reaching their verdicts on the charged crimes against Defendant.
For the foregoing reasons, there was substantial evidence of each essential element of the charged offense, or a lesser offense as it relates to both charges. Also, there was evidence that Defendant was the perpetrator in both charges. There was a permissive inference that the weapon used was in fact a dangerous weapon whereby the Coles' lives were endangered or threatened. Therefore, we find no error in the trial court's denial of Defendant's motion to dismiss as to Martha Dorsey Cole and Defendant's motion to dismiss both charges of attempted robbery with a dangerous weapon.
B. Fatal Variance
“A variance between the criminal offense charged and the offense established by the evidence is in essence a failure of the State to establish the offense charged.” State v. Roman, 203 N.C.App. 730, 732, 692 S.E.2d 431, 433 (2010). “In order for a variance to warrant reversal, the variance must be material.” State v. Norman, 149 N.C.App. 588, 594, 562 S.E.2d 453, 457 (2002) (citing State v. McDowell, 1 N.C.App. 361, 365, 161 S.E.2d 769, 771 (1968)). “A variance will not result where the allegations and proof, although variant, are of the same legal significance. If a variance in an indictment is immaterial, it is not fatal.” Roman, 203 N.C.App. at 733–34, 692 S.E.2d at 434 (2010) (quoting State v. Stevens, 94 N.C.App. 194, 197, 379 S.E.2d 863, 865 (1989)).
“To sufficiently charge a criminal offense, an indictment must state the elements of the offense with sufficient detail to put the defendant on notice as to the nature of the crime charged and to bar subsequent prosecution for the same offense in violation of the prohibitions against double jeopardy.” State v. Burroughs, 147 N.C.App. 693, 695–696, 556 S.E.2d 339, 342 (2001). “Under N.C.G.S. § 14–87(a), ‘[t]he essential elements of robbery with a dangerous weapon are: (1) an 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. Rogers, 227 N.C.App. 617, 622, 742 S.E.2d 622, 626 (2013). “ ‘In an indictment for robbery with firearms or other dangerous weapons (G.S.14–87), the gist of the offense is not the taking of personal property, but a taking or attempted taking by force or putting in fear by the use of firearms or other dangerous weapon.’ “ State v. Burroughs, 147 N.C.App. 693, 695–696, 556 S.E.2d 339, 342 (2001).
On appeal Defendant contends there was a fatal variance between the robbery with a dangerous weapon indictments and the evidence at trial. Defendant contends the indictments said “handgun” and there was no evidence of a handgun at trial. We are not persuaded.
Here, we find the indictments do charge the essential elements of a robbery with dangerous weapon with sufficient detail to put the Defendant on notice as to the nature of the crime charged. First, the indictments stated that Defendant “unlawfully, willfully and feloniously did steal, take and carry away personal property, the person and presence of ‘Leonard Ray Cole’ and ‘Martha Dorsey Cole.’ “ Second, the indictments stated that Defendant committed the act by “means of an assault consisting of having in possession and threatening the use of a ‘handgun.’ “ Third, the indictments stated that the life of ‘Leonard Ray Cole’ and ‘Martha Dorsey Cole’ was “threatened and endangered.”
In addition to the sufficiency of the indictments, there is no fatal variance between the indictments and the evidence presented. Evidence presented at trial described the gun used in many different ways. Mr. Cole testified that the gun was “a pistol, a black pistol.” Mrs. Cole testified that the gun was “wide like with a barrel ... and black.” Ivey testified that the gun was “a common semiautomatic pistol ... like a Sig Sauer or shaped like that.” Defendant testified that the gun was a “pump type Airsoft gun” that was not operated with a CO2 cartridge. Although no evidence was presented that specifically said “handgun,” there was evidence of dangerous weapon or firearm. The many descriptions of the gun were simply descriptions of the dangerous weapon or firearm used by Defendant to commit the unlawful act against the Coles. These proofs and evidence, although variant from “handgun,” was of the same legal significance that some dangerous weapon or firearm was used during the commission of the crime. Therefore, there was no material variance.
For the foregoing reasons, the indictments were both sufficient. Both indictments charged Defendant of the essential elements of robbery with a dangerous weapon. The indictments were sufficient to place Defendant on notice of the charged crime, appraising him every opportunity to prepare his defense. Therefore, we find no fatal variance between the robbery with a dangerous weapon indictments and the evidence at trial.
C. Jury Instruction
Plain error arises when the error is “ ‘so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]’ “ State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.1982), cert. denied, 459 U.S. 1018, 74 L.Ed.2d. 513 (1982)). “Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
On appeal, Defendant contends the trial court committed plain error when it failed to instruct the jury that each charge of attempted robbery with a dangerous weapon must be considered separately and independently. Defendant did not object to the trial judge's manner of instruction. We are not persuaded.
Here, during the jury charge, the trial judge indicated to the jury that there were two verdict sheets, one relating to Ms. Cole and the other Mr. Cole. Also, the trial judge stated that because the charges were identical, one dealing with Mr. Cole and the other Mrs. Cole that he would instruct on the law together at one time. Defendant did not object. The trial judge did give some indication that there are two separate verdicts sheets, which could indicate that the counts was separate and independent. However, he did not explicitly state each count were to be considered separately and independently. Nevertheless, the manner of instructing the jury did not amount to plain error.
There are no showings that absent the manner in which the trial judge instructed the jury that there would have been a different result. There was substantial evidence presented at trial to establish each element of attempted robbery with a dangerous weapon as it related to Mrs. Cole and Mr. Cole, respectfully. Defendant testified that after smoking K2 he intended to rob Mr. and Mrs. Cole. Defendant approached the car from the driver's side where Mrs. Cole was located and struck the windshield. Defendant came around to Mr. Cole after striking the windshield where Mrs. Cole was seated and Defendant told him to get in the car. Mr. Cole testified that the gun was “a pistol, a black pistol.” Mrs. Cole testified that the gun was “wide like with a barrel ... and black.” Ivey testified that the gun was “a common semiautomatic pistol ... like a Sig Sauer or shaped like that.” Mrs. Cole testified that she knew she was going to be killed and kept screaming. Mr. Cole further testified “I was expecting to be shot any minute. I just knew we were going to be killed because I had resisted him ... It was just awful trauma ... I could just almost feel like the bullets was going to come straight at me.” Finally, Defendant admitted that he was present at Earth Fare and intended to rob Mr. and Mrs. Cole. Therefore, even in being explicitly instructed to consider Mr. Cole and Mrs. Cole separately and independently, the jury would probably still have found Defendant guilty of both counts of robbery with a dangerous weapon.
NO ERROR.
Judges GEER and DILLON concur.
Report per Rule 30(e).