Opinion
No. 07-1124.
Filed 1 July 2008. This case not for publication.
Forsyth County No. 06 CRS 57383.
Appeal by defendant from judgment entered 8 May 2007 by Judge A. Moses Massey in Forsyth County Superior Court. Heard in the Court of Appeals 5 March 2008.
Attorney General Roy Cooper, by Assistant Attorney General Kimberly W. Duffley, for the State. Haral E. Carlin, for defendant.
On 20 June 2006, Darnell Demonick Stafford (defendant) joined his brother, Kalvin, and his cousin, Corey Bethea, and drove to Washington Park to play basketball. After that, the trio went to Marketplace Mall, where they walked around for a while. When they exited the mall, Kalvin walked to a car, produced a pistol, and demanded the passenger's purse. The victim, Martha Witlock, gave Kalvin the purse. Witnesses testified that after the exchange, Kalvin returned to Corey and defendant, and that the three played catch with the purse in a "playful manner" as they walked away at a normal pace. Two witnesses, John Gaillard and Robert Pitts, followed defendant and his friends but were unable to apprehend them. The three young men fled into the nearby woods before eventually being tracked down by a K9 police unit.
We note that defendant spells Kalvin's name "Calvin"; this Court is unsure as to the proper spelling of the name. However, because the transcript refers to the individual as "Kalvin," we will use that spelling throughout this opinion.
On 7 May 2007, a jury found defendant guilty of one count of robbery with a dangerous weapon, and on 8 May 2007, the Forsyth County Superior Court entered judgment against defendant and sentenced him to forty-eight months' to sixty-seven months' imprisonment. Defendant now appeals. For the reasons outlined below, we find no error.
Defendant first argues that the trial court erred by instructing the jury on the theory of acting in concert. We need not address this argument, however, because defendant failed to properly preserve it for appeal. At no time did defendant object to the jury instructions as given, despite the fact that the trial judge asked trial counsel several times if there were any objections. "A party may not assign as error any portion of the jury charge . . . unless he objects thereto. . . ." N.C.R. App. P. 10(b)(2) (2007).
In criminal cases, a question which was not preserved by objection noted at trial and which is not deemed preserved by rule or law without any such action, nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.
N.C.R. App. P. 10(c)(4) (2007). "Defendant neither objected to the jury instructions at trial, nor does defendant contend in his brief that the jury instruction amounted to plain error. Therefore, defendant has waived this assignment of error." State v. Cook, 164 N.C. App. 139, 143, 594 S.E.2d 819, 822 (2004).
Defendant next claims that the trial court committed plain error by allowing testimony regarding the K9 unit's tracking of defendant. We disagree.
We note that defendant made no objection to the introduction of the contested evidence at trial. "In criminal cases, a question which was not preserved by objection noted at trial . . . may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error." N.C.R. App. P. 10(c)(4) (2007). "Plain error is error 'so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'" State v. Leyva, 181 N.C. App. 491, 499, 640 S.E.2d 394, 399 (2007) (quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987)).
Defendant argues that the testimony about the K9 dog was inadmissible because the prosecution failed to lay a foundation as to the tracking dog's "training, experience, and proven ability in tracking." The purpose of the tracking dog evidence was, ostensibly, to identify defendant. This objective was clearly satisfied by the testimony of several eye witnesses to the crime.
Under our plain error standard of review, a defendant has the burden of showing: (i) that a different result probably would have been reached but for the error; or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fairtrial. Defendant has not carried his burden. It is entirely unlikely that the evidence at issue had any serious effect on the trial's outcome. Nor did the admission of the evidence preclude defendant from receiving a full and fair trial. Accordingly, defendant's contention must fail.
State v. McBride, ___ N.C. App. ___, ___, 653 S.E.2d 218, 221 (2007) (quotations and citations omitted).
Finally, defendant argues that the trial court erred in denying his motion to dismiss the charge against him for insufficient evidence. We disagree.
"In ruling on a defendant's motion to dismiss, the trial court should consider if the state has presented substantial evidence on each element of the crime and substantial evidence that the defendant is the perpetrator." State v. Replogle, 181 N.C. App. 579, 580-81, 640 S.E.2d 757, 759 (2007) (quotations and citation omitted). "The elements of the crime of robbery with a dangerous weapon are: (1) the unlawful taking or attempted taking of personal property from another, (2) the possession, use or threatened use of a firearm or other dangerous weapon, and (3) danger or threat to the life of the victim." State v. Hill, ___ N.C. App. ___, ___, 641 S.E.2d 380, 384 (2007) (citations omitted).
If two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose . . . or as a natural or probable consequence thereof.
State v. Barnes, 345 N.C. 184, 233, 481 S.E.2d 44, 71 (1997) (quotations and citation omitted). "The evidence should be viewed in the light most favorable to the state, with all conflicts resolved in the state's favor. . . . If substantial evidence exists supporting defendant's guilt, the jury should be allowed to decide if the defendant is guilty beyond a reasonable doubt." Replogle, 181 N.C. App. at 581, 640 S.E.2d at 759 (quotations and citations omitted) (alteration in original).
In this case, defendant does not dispute that Kalvin's actions satisfy all of the elements of the crime of robbery with a dangerous weapon. Instead, defendant argues that the evidence was insufficient to establish that he was acting in concert with Kalvin. However, the State presented witnesses who testified that after the robbery, defendant, Kalvin, and Corey playfully tossed the purse back and forth between them.
Under the doctrine of acting in concert, it is not necessary that the defendant do any particular act constituting a part of the crime charged, if he is present at the scene and acting together with another or others pursuant to a common plan or purpose to commit the crime.
State v. Taylor, 337 N.C. 597, 608, 447 S.E.2d 360, 367 (1994) (citations omitted). The evidence established that defendant was present, and his actions in playing with the purse after the robbery constitute substantial evidence justifying the trial court's decision to send the case to a jury. The trial court did not err.
Having conducted a thorough review of the briefs and record on appeal, we discern no error.
No error. Judges HUNTER and STROUD concur.
Report per Rule 30(e).