State v. Bellamy, COA04-550.

Decision Date16 August 2005
Docket NumberNo. COA04-550.,COA04-550.
PartiesSTATE of North Carolina v. Keith Lamar BELLAMY and Leon McCoy.
CourtNorth Carolina Supreme Court

Attorney General Roy Cooper, by Assistant Attorneys General William B. Crumpler and Christopher W. Brooks, for the State.

Brian Michael Aus, Durham, for defendant-appellant Bellamy.

Daniel Shatz, Durham, for defendant-appellant McCoy.

STEELMAN, Judge.

The robbery of an individual of her own property and the property of her employer, occurring at the same time, constitutes only one offense of robbery with a dangerous weapon. A sex offense committed in the course of a robbery of a public business by a robber was not a natural or probable consequence of the robbery. The conviction of the co-defendant on the theory of acting in concert must be reversed.

On 23 September 2002, C.B. was working the evening shift as the assistant manager of a McDonald's at Long Leaf Mall in Wilmington. On her crew during the shift were defendant Leon McCoy (McCoy) and Andre Randall (Randall), who frequently worked together on the same shift. C.B. closed the lobby and locked the doors at 10:00 that night, though the drive-thru window remained open until 11:00. Ordinarily McCoy took out the trash, however on that night Randall took it out, and, contrary to policy, failed to notify C.B. that he was doing so. The manager should have opened and shut the locked door for Randall, however Randall simply turned the deadbolt in a way that kept the door ajar. It was through this open door that an armed assailant entered at around 11:30, as McCoy was mopping the hallway and C.B. was preparing the night deposit. The assailant went into the office and put a gun to the side of C.B.'s head. He wore a green ski mask, but she could tell it was a black male who was about her height. He demanded the deposit money, and also took C.B.'s personal cash. He demanded a bag for the cash. McCoy, who was lying on the floor outside the office, went to the front near the service counter and got a bag. Though there were several silent alarms in this area, McCoy did not activate any of them.

Once he bagged the money, the robber told C.B. to undress. As she was unbuttoning her shirt, he said it was taking too long and he told her to just drop her pants and underwear. He then demanded that she spread her labia apart. He stooped down to inspect her genitals, and used the barrel of his gun to pull her labia further apart. He noticed that she had a tampon inserted, and told her that she was "lucky". The assailant then departed with the money. After the assailant left, McCoy went to the front of the store and hit a silent alarm.

McCoy and Randall often rode to work together. At trial, Randall testified that: He saw no one outside as he took out the trash that night, but he did see a white Mitsubishi Galant in the parking lot. Defendant Keith Lamar Bellamy (Bellamy) owned a burgundy Honda automobile, but at the time of the robbery he was driving his cousin's 1995 white Mitsubishi Galant. Bellamy and McCoy knew each other and were friends. Randall knew Bellamy from seeing him around the neighborhood and from playing basketball with him. McCoy was having financial problems before the robbery. McCoy lived in a boarding house and at times would be late with his rent and get locked out of his room. McCoy was upset about his work hours being cut because he was not going to have enough money to pay his rent. A few weeks before the robbery, Randall learned that McCoy was contemplating robbing the McDonald's. A couple of days before the robbery, having been locked out of his room for non-payment, McCoy spoke more specifically about robbing the McDonald's to get money to pay his rent. McCoy was looking for Bellamy to help him commit the robbery. He told Randall not to interfere with the robbery. A couple of days or so before the robbery, McCoy left work early. Around 11:30 p.m. that night, Randall saw McCoy and Bellamy in the parking lot in the burgundy Honda. Randall believed the robbery was supposed to have taken place that night, but was called off because of police presence in the area. When Randall took the trash out on the night of the robbery and saw the white Galant in the parking lot, he knew it was Bellamy. Upon reentering the restaurant, Randall encountered a person wearing a green mask. The person pointed a gun at Randall's head and told him to get down on the floor. Randall recognized the robber's voice as Bellamy's.

Detective Overman of the Wilmington Police Department arrived at McDonald's about 12:20 a.m. McCoy told him that he could not identify the perpetrator's voice. He said the robber pointed the gun directly at him and ordered him to lie down immediately when the robber entered the restaurant. The assertion that McCoy was immediately ordered to the floor was contradicted by videotapes, which showed the office, hall, and kitchen area of the McDonald's during the robbery.

Randall and McCoy left McDonald's together, before 1:58 a.m. According to Randall, McCoy asked Randall to take him to where Bellamy lived, and used Randall's cell phone to call Bellamy's residence but no one answered. Phone records showed a call from Randall's phone to that residence at 1:58 a.m. McCoy said he needed to find Bellamy, and directed Randall to drop him off at a location where he thought Bellamy might be located. Randall testified that within a few days of the robbery, McCoy offered him $400 not to say anything to the police about the robbery and his role in it. He attempted to hand the money to Randall, but Randall refused.

A store near the McDonald's, Pets Plus, had a surveillance system with a camera that faced in the direction of McDonald's. The videotape shows a light colored car leaving the area around the time the assailant left the McDonald's. The assailant had a handgun that appeared to be a .45 caliber automatic. During a search of Bellamy's residence in Wilmington on 14 November 2002, six .45 caliber bullets were found in his jacket. Police also found a lockbox containing fifty twenty dollar bills. On 31 October 2002 in Wilmington, Bellamy fled from the police in his burgundy Honda and subsequently escaped on foot. The police found a green ski mask in the far right side of the trunk of the Honda. Another green ski mask was found in the trunk under a computer monitor.

Sgt. Dean Daniels of the New Hanover County Sheriff's Department had known Bellamy since 1992. He was familiar with Bellamy's walk, dress and mannerisms. He reviewed the McDonald's videotapes and observed that the perpetrator walked and dressed in a manner similar to Bellamy, and also used his hands similarly to Bellamy when talking.

Defendants were tried before a jury in New Hanover County Superior Court, and were found guilty of all charges on 15 August 2003. Bellamy was convicted of two counts of robbery with a dangerous weapon, which were consolidated for judgment, and first-degree sexual offense. The two sentences were ordered to run consecutively, and resulted in a total active prison sentence of 439 months to 546 months. McCoy was convicted of two counts of robbery with a dangerous weapon and one count of first-degree sexual offense, which were consolidated for judgment, resulting in an active prison term of 307 months to 378 months. From these judgments each defendant appeals.

Defendants' Joint Arguments on Appeal

In Bellamy's fifth argument, and McCoy's first argument, they contend that the trial court erred in denying their motions to dismiss. We agree in part.

Both defendants argue that the State failed to establish by sufficient evidence that there were two distinct robberies supporting two robbery convictions for each defendant, and that the State failed to present sufficient evidence to support the element of penetration needed to prove first-degree sexual offense.

"When a defendant moves for dismissal, the trial court is to determine whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant's being the perpetrator of the offense. If so, the motion to dismiss is properly denied." State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-52 (1982). "Substantial evidence is `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. at 66, 296 S.E.2d at 652.

The defendants argue that the trial court erred in failing to dismiss one of the charges of robbery with a dangerous weapon against each of them. The defendants were both charged with two counts of robbery with a dangerous weapon, one count for robbing C.B. personally, and one count for robbing McDonald's. The State concedes, and we agree, that one of the judgments for robbery with a dangerous weapon against each defendant should have been arrested by the trial court because there was only one robbery with a dangerous weapon. This Court, commenting on State v. Beaty, 306 N.C. 491, 293 S.E.2d 760 (1982) (citation omitted), overruled on different grounds, State v. White, 322 N.C. 506, 369 S.E.2d 813 (1988), stated:

In Beaty, there were two indictments for armed robbery arising out of the assault of a single employee, during which assault property was taken from both the employee and the business. The Beaty Court stated that, "[t]he controlling factor in this situation is the existence of a single assault," not the two sources (the store and the employee) from which the money was taken. The fact there were two indictments was deemed irrelevant. The Court therefore concluded only one armed robbery had occurred.

State v. Suggs, 86 N.C.App. 588, 596, 359 S.E.2d 24, 29 (1987). We therefore arrest...

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