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Home / Opinion Digests / Criminal Practice / Criminal Practice — Habitual Felon – Consecutive Sentences – Firearm – BB Gun – Conspiracy

Criminal Practice — Habitual Felon – Consecutive Sentences – Firearm – BB Gun – Conspiracy

State v. Duffie (Lawyers Weekly No. 15-07-0402, 15 pp.) (Mark Davis, J.) Appealed from Pitt County Superior Court (Robert Hobgood, J.) N.C. App.

Holding: Because defendant was not already serving a sentence at the time of the sentencing hearing, the trial court was incorrect in its belief that G.S. § 14-7.6 mandated consecutive sentences in this habitual felon case.

We find no prejudicial error in defendant’s convictions of three counts of common law robbery, three counts of conspiracy to commit armed robbery, and attaining habitual felon status. However, we remand for resentencing so the trial court may properly exercise its discretion in determining whether defendant’s sentences should run consecutively or concurrently.

Both during a videotaped interview and at trial, defendant’s accomplice – his girlfriend’s 16-year-old son – consistently acknowledged that going to the various stores was his idea, that defendant transported them to each location, and that he and defendant split the proceeds of the robberies. Although it was only during the videotaped interview that the accomplice suggested that defendant had influence over him and induced him to commit the robberies, this added information did not contradict his trial testimony. Therefore, the trial court could admit the videotaped interview as a prior consistent statement.

The accomplice referred to the weapon he carried during the robberies as a “BB gun” or a “fake gun.” At the close of the state’s evidence, the trial court reduced the armed robbery charges to common law robbery, but the charges of conspiracy to commit armed robbery were submitted to the jury.

The jury asked the trial court “how the law defines firearm in regards to the conspiracy charge.” The trial court answered that a firearm “is a weapon that when fired, that the projectile fired therefrom can cause death or serious bodily injury to a human being if the projectile strikes and enters a vital part of the human body.”

Even if this instruction were error, defendant has not shown prejudice. Proof that a dangerous weapon was actually used to commit the robberies was not required to establish that defendant and his accomplice conspired to commit the robberies with a dangerous weapon.

No error as to defendant’s convictions. Remanded for resentencing.

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