Heard in the Court of Appeals 7 January 2015.
Roy Cooper, Attorney General, by Teresa M. Postell, Assistant Attorney General, for the State.
Paul F. Herzog for defendant-appellant.
DAVIS, Judge. Judges ELMORE and TYSON concur.
Appeal by defendant from judgments entered 21 November 2013 by Judge Robert H. Hobgood in Pitt County Superior Court,
Nos. 13 CRS 2383-85, 13 CRS 54359, 13 CRS 54365, 13 CRS 54367.
Linwood Earl Duffie (" Defendant" ) appeals from judgments entered upon jury verdicts finding him guilty of three counts of common law robbery, three counts of conspiracy to commit robbery with a dangerous weapon, and attaining habitual felon status. On appeal, Defendant contends that the trial court erred in (1) admitting a videotaped interview of Kumetrius Friason (" Friason" ), Defendant's co-perpetrator; (2) its instruction to the jury defining the term " firearm" ; and (3) sentencing him to consecutive sentences based on a misapprehension of N.C. Gen. Stat. § 14-7.6. After careful review, we conclude that Defendant received a fair trial free from prejudicial error but remand for resentencing.
The State presented evidence at trial tending to establish the following facts: On 22 April 2013, Defendant drove Friason, his girlfriend's 16 year-old son, to Emerald City Internet Café (" Emerald City" ), which featured online sweepstakes games in which players were eligible to win cash prizes. While Defendant went inside and played games, Friason waited in Defendant's car. After some time, Friason went inside Emerald City with a bandana covering his face and demanded that the cashier, Zapora Washington (" Washington" ), " give [him] the money." As Friason was emptying the cash register, Washington noticed that he was holding a gun by his side. Friason put the money in a bag and exited the café . Defendant then ran out the door of the café , telling Washington that he was going to go find the person who had robbed the store. Defendant drove to Hopkins Apartments to pick up Friason who was waiting there with the money from the robbery. Friason kept " a little bit" of the money, and Defendant " got the rest."
Six days later on 28 April 2013, Defendant drove Friason to a Family Dollar store in Winterville, North Carolina. Defendant stayed in his car while Friason entered the store, told the two employees on duty that " this [is] a robbery," pointed a gun, and said " give me your money." Friason took money from the cash register and from one of the employees' wallets. Friason then told the employees to " lay down on the floor and don't even look up. Don't say a word. . . . if you move, I'll come back and I'll shoot both of you." Friason ran out of the store, and Defendant picked him up in the parking lot of a nearby gas station. Defendant and Friason " split" the " thousand or two" dollars from the Family Dollar store robbery.
On 30 April 2013, Defendant and Friason committed a third robbery at a Trade Mart convenience store in Greenville, North Carolina. Defendant parked his car behind a nearby Outback Steakhouse, and Friason exited the vehicle and entered the Trade Mart. He covered his face with a bandana and approached the two cashiers. Friason " really didn't say nothing, [he] just had the gun pointed towards them and they gave [him] the money." Friason obtained approximately $1,000.00 ...