               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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                                  Opinion of the Court



      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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