State v. Hendricksen , 257 N.C. App. 345 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1019
Filed: 2 January 2018
Johnston County, No. 14 CRS 54666
STATE OF NORTH CAROLINA,
v.
ERIC J. HENDRICKSEN, Defendant.
Appeal by defendant from judgment entered 26 January 2016 by Judge Kendra
D. Hill in Superior Court, Johnston County. Heard in the Court of Appeals 18 April
2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Rajeev K.
Premakumar, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Daniel L.
Spiegel, for defendant-appellant.
STROUD, Judge.
Defendant, Eric Hendricksen (“defendant”) appeals from his conviction of
robbery with a dangerous weapon. On appeal, defendant argues that the trial court
erred by imposing punishment for robbery with a dangerous weapon where he had
previously pled guilty to two counts of misdemeanor possession of stolen goods and
the stolen goods were obtained in the robbery. We find no error in the trial court’s
judgment.
I. Background
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The evidence showed that on the night of 28 July 2014, a masked man armed
with a gun, later identified as defendant, entered the I-40 Supergas gas station and
convenience store in Johnston County, North Carolina. Defendant demanded money
from the clerk behind the counter, Sunny Kapoor. When Mr. Kapoor informed
defendant that the cash register was locked and had to be opened up, defendant
jumped over the counter with a bag in one hand and a gun in the other, demanding
the money from the register. Mr. Kapoor opened the register and defendant took the
money from the register. Defendant took approximately $1,900.00 in cash from the
register. After taking the money, defendant then demanded lottery tickets. The
lottery ticket dispensers were locked, and defendant forced Mr. Kapoor to open them
at gunpoint. Defendant then stuffed lottery tickets into his bag. After defendant had
taken the cash and lottery tickets, he told Mr. Kapoor to get down and he left the
store. Once outside of the store, defendant fired his gun. After the robbery, defendant
went to an acquaintance’s home and said he had “just done a job and had a pocket
full of money.”
On 30 July and 31 July 2014, defendant traveled to locations in Harnett
County where he attempted to cash out lottery tickets he acquired from the robbery.
Detective Rodney Byrd of the Johnston County Sherriff’s Office was lead investigator
of the 28 July 2014 armed robbery of the I-40 Supergas in Benson. Detective Byrd
called the North Carolina Education Lottery to provide information of the theft so the
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system could track the stolen lottery tickets. On 30 July 2014, Detective Byrd
received a call from the North Carolina Lottery informing him that a flagged lottery
ticket had been cashed at a Wilco Hess store in Harnett County. On the way to
investigate that report, Detective Byrd received another call from the North Carolina
Lottery informing him there had been an attempt to cash a second flagged lottery
ticket at a Kangaroo store, also in Harnett County.
During his investigation, Detective Byrd obtained a search warrant for
defendant’s residence. In the search of the residence, Detective Byrd found
incriminating evidence, and he seized clothing and a gun based upon his observation
of the surveillance footage from the Supergas on the night of the robbery.
On 3 September 2014, arrest warrants were issued for defendant in both
Johnston and Harnett counties. Defendant was charged in Johnston County for
robbery with a dangerous weapon and second degree kidnapping and in Harnett
County with five counts of misdemeanor possession of stolen goods, four counts of
felony attempted obtaining property by false pretenses, and one count of felony
obtaining property by false pretenses. On 2 December 2014, a Johnston County grand
jury returned a true bill on an indictment of defendant for robbery with a dangerous
weapon and second degree kidnapping.
On 17 March 2015, defendant pled guilty in Harnett County to two counts of
misdemeanor possession of stolen goods, and Harnett County dismissed the
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attempted obtaining property by false pretenses charge. The stolen goods identified
in the Harnett County case were two lottery tickets.
Defendant was tried on the Johnston County charges in Johnston County
Superior Court on 19 January 2016. At the close of the State’s evidence, defendant
moved to dismiss the charges, and the trial court granted the dismissal of the charge
of second degree kidnapping. Defendant renewed his motion to dismiss the robbery
charge at the close of all the evidence, but the trial court once again denied his
request. The jury ultimately returned a verdict of guilty on robbery with a dangerous
weapon.
Defendant once again raised issues relating to the charge of robbery with a
dangerous weapon during sentencing on the grounds that he had previously been
punished for misdemeanor possession of stolen goods in Harnett County several
months earlier. After defendant presented evidence at the sentencing hearing to
support his argument he should not sustain multiple punishments, the Court
overruled defendant’s argument and imposed an active sentence for robbery with a
dangerous weapon of 70 to 96 months imprisonment with credit on the judgment
given for 101 days spent in confinement. Defendant timely appealed to this Court.
II. Analysis
Defendant’s sole argument on appeal is that the trial court erred by imposing
punishment for robbery with a dangerous weapon after defendant had previously
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been punished for possession of stolen goods, where the stolen goods were obtained
in the course of that same robbery. Whether multiple punishments were imposed
contrary to legislative intent presents a question of law, reviewed de novo by this
Court. State v. Khan, 366 N.C. 448, 453, 738 S.E.2d 167, 171 (2013); State v. Moses,
205 N.C. App. 629, 638-40, 698 S.E.2d 688, 695-97 (2010).
Defendant contends the legislature did not intend to punish a defendant twice
for robbery and possession of stolen goods acquired by that robbery. Defendant
maintains that he is protected from multiple punishments based on legislative intent,
rather than the Double Jeopardy Clause of the Fifth Amendment. On appeal,
defendant relies heavily on cases that are based upon the Double Jeopardy Clause.
Defendant justifies using cases that rely on Double Jeopardy by citing to our Supreme
Court’s explanation that Double Jeopardy and legislative intent in this context are
essentially the same principles:
The argument advanced by defendant has been
presented under various titles: double jeopardy, lesser-
included offense, an element of the offense, multiple
punishment for the same offense, merged offenses, etc. The
defendant and the State have briefed and argued the issue
as one of “double jeopardy.” We choose to avoid any lengthy
discussion of the appropriate title, as it is the principle of law
rather than the characterization of the issue that is
important.
State v. Gardner, 315 N.C. 444, 451, 340 S.E.2d 701, 707 (1986); see also Ohio v.
Johnson, 467 U.S. 493, 499, 81 L. Ed. 2d 425, 433, 104 S. Ct. 2536, 2541 (1984) (“the
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question under the Double Jeopardy Clause whether punishments are multiple is
essentially one of legislative intent”) (citation and quotation marks omitted)). We
will follow the reasoning of our Supreme Court in Gardner and focus on the “principle
of law” instead of the exact “characterization of the issue[.]” See Gardner, 315 N.C.
at 451, 340 S.E.2d at 707.
The United States Supreme Court described in Blockburger v. United States
the test for determining whether certain activities constitute two offenses or one:
“The applicable rule is that, where the same act or transaction constitutes a violation
of two distinct statutory provisions, the test to be applied to determine whether there
are two offenses or only one is whether each provision requires proof of a fact which
the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306,
309, 52 S. Ct. 180, 182 (1932). “North Carolina has followed the United States
Supreme Court’s ‘same elements’ test from Blockburger.” State v. Sparks, 182 N.C.
App. 45, 47, 641 S.E.2d 339, 341 (2007), aff’d, 362 N.C. 182, 657 S.E.2d 655 (2008).
The Fifth Amendment of the United States
Constitution, made applicable to the States by the
Fourteenth Amendment, protects against double jeopardy,
which includes multiple punishments for the same offense.
The test of double jeopardy, or former jeopardy, is not
whether the defendant has already been tried for the same
act, but whether he has been put in jeopardy for the same
offense. Hence, the plea of former jeopardy, to be good, must
be grounded on the “same offense” both in law and in fact,
and it is not sufficient that the two offenses grew out of the
same transaction. If evidence in support of the facts alleged
in the second indictment would be sufficient to sustain a
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conviction under the first indictment, jeopardy attaches,
otherwise not. However, if proof of an additional fact is
required in the one prosecution, which is not required in the
other, even though some of the same acts must be proved in
the trial of each, the offenses are not the same, and the plea
of former jeopardy cannot be sustained[.]
State v. Hall, 203 N.C. App. 712, 716-17, 692 S.E.2d 446, 450 (2010) (citations,
quotation marks, and brackets omitted).
At issue in this case is whether the legislature intended the offenses of robbery
with a dangerous weapon and possession of stolen goods to be separate and distinct
offenses, and whether after looking at the facts of this case the Johnston County
robbery charge is separate and distinct from the possession of stolen property offense
he pled guilty to in Harnett County.
A. Possession of Stolen Goods vs. Robbery
The essential elements of possession of stolen goods are: “(1) possession of
personal property, (2) valued at more than $400.00, (3) which has been stolen, (4) the
possessor knowing or having reasonable grounds to believe the property to have been
stolen, and (5) the possessor acting with a dishonest purpose.” State v. Davis, 302
N.C. 370, 373, 275 S.E.2d 491, 493 (1981). The key elements of robbery with a
dangerous weapon are governed by N.C. Gen. Stat. § 14-87(a) (2015), and this Court
has held “that the essential elements of the crime of robbery with a dangerous weapon
are: (1) the unlawful taking or attempted taking of personal property from another;
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(2) the possession, use or threatened use of firearms 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) (citation and quotation
marks omitted).
Defendant relies upon State v. Perry, 305 N.C. 225, 287 S.E.2d 810 (1982),
overruled in part on other grounds, State v. Mumford, 364 N.C. 394, 402, 699 S.E.2d
911, 916 (2010), to illustrate when our Supreme Court has considered the legislative
intent behind the enactment of the statute criminalizing possession of stolen goods.
The Supreme Court noted in Perry that prior to the enactment of N.C. Gen. Stat. §
14-71.1 in 1977, mere possession of stolen property was not a crime. Perry, 305 N.C.
at 235, 287 S.E.2d at 816. But known dealers in stolen goods were going
unprosecuted in many cases, as it was difficult to prove possession recent enough
after larceny to raise the presumption that the dealer stole the property. Id. In
response, our legislature enacted the statute addressing possession of stolen goods
laws. Id. The Perry Court held:
[H]aving determined that the crimes of larceny, receiving,
and possession of stolen property are separate and distinct
offenses, but having concluded that the Legislature did not
intend to punish an individual for receiving or possession
of the same goods that he stole, we hold that, though a
defendant may be indicted and tried on charges of larceny,
receiving, and possession of the same property, he may be
convicted of only one of those offenses.
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Id. at 236-37, 287 S.E.2d at 817. Had our legislature disagreed with Perry, it would
have acted based upon that opposition. But “[i]n the nearly thirty years since Perry
was decided, the Legislature has made no substantive changes to N.C. Gen. Stat. §
14-71.1 that would indicate its disfavor with the Perry Court’s interpretation of that
statute.” Moses, 205 N.C. App. at 640, 698 S.E.2d at 696. As stated in Perry, the
legislature created the statutory offense of possession of stolen goods as a substitute
for the common law offense of larceny in those situations in which the State could not
furnish sufficient evidence that the defendant stole the property. Perry, 305 N.C. at
235, 287 S.E.2d at 816. Considering the historical background of this statute, “we
conclude that the Legislature also did not intend to subject a defendant to multiple
punishments for both robbery and the possession of stolen goods that were the
proceeds of the same robbery.” Moses, 205 N.C. App. at 640, 698 S.E.2d at 696.
Under some factual circumstances, had defendant pled guilty to more than two
counts of misdemeanor possession of stolen goods, defendant’s judgment would be
vacated for robbery with a dangerous weapon. But the facts here are quite different
from those in the cases cited by defendant, since defendant only pled guilty to two
counts of misdemeanor possession of stolen goods and is appealing robbery of money
and hundreds of additional lottery tickets which were not the subject of the previous
trial. Principles of legislative intent only apply to proscribe punishment for
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possession during the course of the same conduct, and where the property is the
“same property.” Perry, 305 N.C. at 234, 287 S.E.2d at 816. That is not the case here.
B. Dissimilar offenses
The offense for which defendant pled guilty at his previous trial in another
county is neither for the same conduct nor for the same property. Rather, the
possession to which defendant pled guilty was solely related to his attempt at cashing
in two lottery tickets a few days after the robbery in Johnston County and was
adjudicated in a separate trial in another county, with different facts and evidence.
Even though defendant is arguing that the lottery tickets he attempted to cash
in the next county over were the same lottery tickets he obtained during the
commission of the robbery with a dangerous weapon, it is still permissible for a
defendant to be convicted and punished for multiple -- thus different -- possessions of
the same illegal item. Offenses of possession separate in time and locale can support
separate convictions and punishments. See State v. Rozier, 69 N.C. App. 38, 54-55,
316 S.E.2d 893, 904 (1984) (“Other jurisdictions which have considered the question
appear to have adopted the rule that the possession offenses must be separate in time
and space to warrant separate convictions. Whether particular circumstances of
possession constitute a single criminal act or several is a determination of a factual
nature to be made by the trial court. North Carolina effectively follows the same rule
by investing the trial court with discretion to quash duplicitous indictments. . . . The
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circumstances of each case will determine whether separate offenses may be properly
charged.”).
Here, each offense dealt with a different crime and specifically a different
possession of the two tickets. See State v. Alston, 323 N.C. 614, 616, 374 S.E.2d 247,
249 (1988) (the defendant’s possession of a firearm during an armed robbery was a
different offense than his earlier possession and was not collaterally estopped.). The
facts to support each possession during each crime, on different days and different
locations, were different, and the evidence sufficient to show these crimes were
committed was not identical. See State v. Crump, 178 N.C. App. 717, 722, 632 S.E.2d
233, 236 (2006) (each new violation of the statute for possession of a firearm by a felon
constitutes a new offense); State v. Cumber, 32 N.C. App. 329, 337, 232 S.E.2d 291,
297 (1977) (citations omitted) (“[D]ouble jeopardy is not violated merely because the
same evidence is relevant to show both crimes.”). The burden is on the defendant to
show continuous possession in such circumstances. Here, defendant did not show
such evidence, either at the hearing outside the presence of the jury, or in front of the
jury.
And even if defendant pled guilty to possessing two of the tickets he may have
stolen during the robbery with a dangerous weapon two days prior, the armed robbery
and items stolen included a substantial amount of additional different property.
Defendant here was charged with robbery with a dangerous weapon in which he
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“unlawfully, willfully, and feloniously did steal, take, and carry away another’s
personal property, US currency, approximately $1900, and Lottery tickets from Nita,
LLC d/b/a I-40 Supergas when Sunny Kapoor was present.” The jury heard
testimony from Mr. Kapoor that on the night of the robbery, an armed masked man,
later found to be defendant, entered the I-40 Supergas and “demand[ed] the money.”
(Emphasis added). Mr. Kapoor further testified that he told defendant the register
was locked and had to be opened, and that defendant jumped over the counter and
kept demanding the money from the drawer. The jury heard that defendant took
approximately $1,900.00 in cash from the register at the I-40 Supergas on the night
of the robbery.
Regarding the lottery tickets, the jury heard testimony of a witness from the
North Carolina Education Lottery, Mr. Pekrul, about how many tickets were stolen
from the I-40 Supergas during the commission of the robbery. Mr. Pekrul testified
that after adding the tickets up several times, “it’s in the neighborhood of eight
hundred or so[.]” The jury’s verdict was reached after having heard evidence that
included all of the items defendant stole on the night of the robbery at gunpoint.
Those items were identified as approximately $1,900.00 in cash and approximately
800 lottery tickets. Even assuming defendant could not be punished for possession
of lottery tickets 1 and 2 after pleading guilty to their possession in the previous trial,
nothing prohibits his subsequent punishment for robbery with a dangerous weapon
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where he stole money and lottery tickets 3 through 800. For defendant’s argument
to prevail, he would need to show that the legislature intended an outcome in which
a guilty plea on misdemeanor possession of two stolen lottery tickets would prohibit
punishment for a conviction of robbery with a dangerous weapon where the defendant
stole $1,900.00 in cash and 800 separate lottery tickets. This result is not supported
by this Court’s prior opinions or our Supreme Court in Perry or Moses. Defendant
has failed to meet his burden in proving that he was punished twice for the exact
same property, conduct, or offense.
C. Defendant’s opposition towards other remedies
Assuming the two tickets were the exact same and only property stolen during
the armed robbery, defendant still cannot be heard to complain because he repeatedly
opposed other remedies. Ordinarily, a defendant cannot claim prejudice resulting
from his own conduct. N.C. Gen. Stat. § 15A-1443(c) (2015) (“A defendant is not
prejudiced by the granting of relief which he has sought or by error resulting from his
own conduct.”); see also State v. Gay, 334 N.C. 467, 485, 434 S.E.2d 840, 850 (1993)
(“A defendant may not complain of prejudice resulting from her own conduct. Such
invited error does not merit relief.” (Citations, quotation marks, and brackets
omitted)).
The State made several attempts to rectify any complaint or ambiguity by
seeking several other remedies. First, the State attempted to avoid the mention at
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trial of the two lottery tickets that resulted in defendant’s guilty plea to possession in
Harnett County, and the prosecutor stated that she would proceed on the other items
defendant stole during the robbery. Defendant opposed that offer. Second, the State
offered to amend the indictment so the mention of the two Harnett County lottery
tickets would be omitted. That would mean defendant would be tried only for the
cash and other lottery tickets he stole during the robbery. Again, defendant opposed
this alternative remedy. Finally, the State sought to have a special verdict sheet to
reflect that defendant stole $1,900.00 in cash and the lottery tickets other than the
two to which he pled guilty in Harnett County. Once again, defendant opposed this
proposal and his counsel stated: “I think he is either guilty of armed robbery or not
guilty.” Each of these proposed remedies would have prevented defendant from
facing the possibility of being punished twice for any of the same conduct. Yet,
defendant opposed each offer by the State. Accordingly, we hold that the trial court
did not err by imposing punishment for the offense of robbery with a dangerous
weapon in this case.
IV. Conclusion
For the reasons stated above, we find no error in the trial court’s judgment.
NO ERROR.
Judges BRYANT and DAVIS concur.
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