State v. McCray, COA12–1309.

Citation745 S.E.2d 375
Decision Date04 June 2013
Docket NumberNo. COA12–1309.,COA12–1309.
PartiesSTATE of North Carolina v. Ronald Edward McCRAY, Defendant.
CourtCourt of Appeal of North Carolina (US)

745 S.E.2d 375

STATE of North Carolina
Ronald Edward McCRAY, Defendant.

No. COA12–1309.

Court of Appeals of North Carolina.

June 4, 2013.

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.

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...

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