Opinion
No. COA12–176.
2012-10-2
STATE of North Carolina v. Ray Anthony STIMPSON, Jr., Defendant.
Roy Cooper, Attorney General, by Gayl M. Manthei, Special Deputy Attorney General, for the State. Staples Hughes, Appellate Defender, by Paul M. Green, Assistant Appellate Defender, for defendant-appellant.
Appeal by defendant from judgments entered 8 November 2011 by Judge A. Moses Massey in Guilford County Superior Court. Heard in the Court of Appeals 11 September 2012. Roy Cooper, Attorney General, by Gayl M. Manthei, Special Deputy Attorney General, for the State. Staples Hughes, Appellate Defender, by Paul M. Green, Assistant Appellate Defender, for defendant-appellant.
MARTIN, Chief Judge.
Defendant Ray Anthony Stimpson, Jr. appeals from the judgments entered upon jury verdicts finding him guilty of five counts of second-degree kidnapping and five counts of robbery with a dangerous weapon. We find no error in his trial.
The State's evidence at trial tended to show that on the evening of 25 January 2011, Debra Lucenti and Kevin Gilchrist were getting into a car in downtown Greensboro when a man appeared behind them and said, “get in the car, I have a gun.” Mr. Gilchrist and Ms. Lucenti got into the front seat and the man got into the back seat, pulled out a semiautomatic handgun, cocked it, and demanded money. Mr. Gilchrist gave him about $120 cash, but Ms. Lucenti told him she did not have any money and showed the man her purse. Seeing that she had an ATM card, the man ordered Mr. Gilchrist to drive to an ATM. At an ATM about five miles away, Ms. Lucenti got out of the car and withdrew $60 while the man kept the gun pointed at Mr. Gilchrist in the car. After Ms. Lucenti gave the man her money, he made Gilchrist drive a few blocks, where he jumped out of the car.
Ms. Lucenti was intoxicated at the time of the incident and was unable to provide a description of the assailant. Mr. Gilchrist did not get a good look at the man's face and could not identify him, either.
On 28 January 2011 around 12:30 a.m., Sara Ann Gallman, Kiri Jefferson, and Timothy Herberg were leaving a nightclub in downtown Greensboro. As they approached Ms. Gallman's car, two men walked up to them. One of the men displayed a semiautomatic handgun and ordered them to get into the car. Both assailants got into the backseat. The man with the gun demanded their purses, cell phones, money, and cards. He took Ms. Gallman's purse with her license, debit card, and cell phone and Mr. Herberg's wallet containing $13 and his cell phone. Ms. Jefferson tossed her pink and white polka dot purse containing money and tissues into the backseat where the two assailants were sitting.
The man with the gun ordered Ms. Gallman to drive to an ATM. As she pulled out of the parking lot, she turned the wrong way onto a one-way street, alerting a nearby police officer. The police cruiser activated its lights, but the gunman ordered Ms. Gallman to continue driving through stoplights and stop signs. Several police cars were finally able to stop the car about five minutes later. As the car stopped, the two assailants got out of the car and ran; Gallman, Jefferson, and Herberg were briefly detained and handcuffed until the police figured out what had happened.
The police set up a perimeter and apprehended one of the men first. Police found a pink polka dot purse, pen, ID, tissues, and money on his person. After a brief foot chase, the other assailant, defendant, was also apprehended. A police dog found a loaded black semiautomatic handgun tucked in the trash under the porch of a house to which defendant was seen running.
While Ms. Gallman and Mr. Herberg could not identify defendant as one of the perpetrators, Ms. Jefferson was able to identify defendant as well as the gun he had used during the robbery. She testified as to his identity at trial.
Police Investigator Eric Miller interviewed defendant while he was in custody. Defendant confessed to both robberies, providing details of his own knowledge, including the location of the ATM used in the 26 January incident and the amount of cash taken from Ms. Lucenti. His interview and confession were recorded and later played for the jury at trial.
Defendant offered no evidence at trial. As to the five charges of robbery with a dangerous weapon, the trial court gave the following instruction prior to instructing the jury as to the elements of the offense:
“The defendant has been charged with robbery with a firearm. You will be considering five separate counts or charges of this offense, and the State must prove each element as to each charge beyond a reasonable doubt, although I'm going to instruct you only one time on the offense of robbery with a firearm.
Defendant did not object to the instruction as given.
_________________________
Defendant's sole contention on appeal is that the trial court erred by reading the robbery with a dangerous weapon instruction only once rather than reading it five separate times, specifying the particular victim and property stolen for each charge. Defendant argues that reading the instruction only once rendered the instruction ambiguous and failed to ensure a unanimous verdict because jurors could have found defendant guilty of armed robbery of someone simply in the presence of those who were threatened or surrendered property, effectively allowing the jury “to convict Stimpson of as many robbery counts as there were victims present.” We disagree.
At trial, defendant failed to object to the jury instructions on these grounds during the charge conference. Moreover, after the instructions were read to the jury, when asked if there were any objections, modifications or alterations to be made, his counsel replied, “none for the defense, Your Honor.”
Because defendant “may not make any portion of the jury charge or omission therefrom the basis of an issue presented on appeal unless the party objects thereto before the jury retires,” N.C.R.App. P. 10(a)(2), appellate review of the alleged error has been waived and can only be reviewed on appeal for plain error. See State v. McNeil, 350 N.C. 657, 691, 518 S.E.2d 486, 507 (1999), cert. denied,529 U.S. 1024, 146 L.Ed.2d 321 (2000). Plain error review is only proper when “the judicial action questioned is specifically and distinctly contended to amount to plain error.” N .C.R.App. P. 10(a)(4). An “empty assertion of plain error, without supporting argument or analysis of prejudicial impact, does not meet the spirit or intent of the plain error rule.” State v. Cummings, 352 N.C. 600, 637, 536 S.E.2d 36, 61 (2000), cert. denied, 532 U.S. 997, 149 L.Ed.2d. 641 (2001).
Although defendant correctly recites that “instructional error as to which no objection is lodged is reviewed for plain error,” he has failed to specifically and distinctly contend that the contended error in the trial court's instruction in this case amounted to plain error. See State v. Braxton, 183 N.C.App. 36, 45–46, 643 S.E.2d 637, 643–44,disc. review denied,361 N.C. 697, 653 S.E.2d 4 (2007) (holding that defendant waived plain error review when he failed to object to jury instructions on the grounds that they failed to ensure a unanimous verdict and made a mere reference to plain error in defendant's assignments of error). The burden to show plain error and prejudice rests with defendant. State v. Lawrence, ––– N.C. ––––, ––––, 723 S.E.2d 326, 334 (2012).
Here, defendant has made no argument that the asserted error “had a probable impact on the jury's finding that [he] was guilty.” Id. (citations and internal quotation marks omitted). Indeed, given the defendant's confessions, coupled with the other evidence produced by the State, we conclude that any error with the trial court's instructions, as contended by defendant, had no probable impact on the jury's verdict. Therefore, this issue is overruled.
No error. Judges GEER and STROUD concur.
Report per Rule 30(e).