Opinion
No. COA15–193.
12-01-2015
STATE of North Carolina v. Jalen Dashawn GILMORE and Danarius Shyheim Shealey.
Attorney General Roy Cooper, by Special Deputy Attorney General James M. Stanley, Jr., for the State as to Gilmore. Attorney General Roy Cooper, by Assistant Attorney General Thomas D. Henry, for the State as to Shealey. Gilda C. Rodriguez for defendant-appellant Gilmore. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Nicholas C. Woomer–Deters, for defendant-appellant Shealey.
Attorney General Roy Cooper, by Special Deputy Attorney General James M. Stanley, Jr., for the State as to Gilmore.
Attorney General Roy Cooper, by Assistant Attorney General Thomas D. Henry, for the State as to Shealey.
Gilda C. Rodriguez for defendant-appellant Gilmore.
Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Nicholas C. Woomer–Deters, for defendant-appellant Shealey.
Opinion
Appeal by defendants from judgments entered 19 September 2014 by Judge R. Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals 26 August 2015.
McCULLOUGH, Judge.
Jalen Dashawn Gilmore (“Gilmore”) and Danarius Shyheim Shealey (“Shealey”) (together “defendants”) appeal from judgments entered upon their convictions for assault, robbery, and burglary offenses. For the following reasons, we find no prejudicial error.
I. Background
On 7 November 2013, Olwin Brown spent the night with Desmond Aikens in Aikens' apartment in Greensboro. In the early morning hours of 8 November 2013, Aikens heard a noise at his front door and went to see what the noise was. Aikens could not see anything through the peephole so he flipped the light on, at which time he noticed the door was unlocked. As Aikens reached to lock the door, the door was forced opened and four males entered the apartment. One of the intruders had what appeared to be a handgun.
The intruders demanded money and began to search the apartment while Aikens sat on the couch in the living room. Brown, who was asleep in the bedroom, was awakened during the search and was moved to the couch in the living room with Aikens. Neither Aikens nor Brown recognized the intruders. The intruders tore Aikens' apartment apart and took property belonging to Aikens and Brown before fleeing the apartment. The items taken included a class ring, a TV, a PlayStation 3, shoes, hats, cellphones, a wallet, and jewelry. Aikens was struck in the eye with the handgun during the robbery.
When the intruders fled from the apartment, Brown quickly got dressed and followed them outside where he saw all four of them get into a vehicle with the stolen property. Brown then jumped in his truck and followed them as he called the police on a cell phone he had in his truck. Brown continued to pursue the vehicle until the police took over the chase.
Shortly after the police joined the pursuit, the vehicle reached a dead end. The four intruders then abandoned the vehicle and ran into the nearby woods. Responding officers set up a perimeter and canvassed the area looking for the intruders. Four suspects, including defendants, were found in the area and arrested after Brown positively identified them at show up identifications conducted by the police.
Gilmore was the second suspect found and arrested. He was found hiding in a crawl space of an abandoned house. He had dirt all over his clothes and looked as if he had been running through the woods. When the police questioned Gilmore about what he was doing, Gilmore told police he was “chillin'.” Gilmore also told police that a hooded sweatshirt recovered from the crawlspace was his. Brown identified Gilmore as one of the intruders with 100% certainty.
Shealey was later spotted walking in the area with the fourth suspect a short time after the police perimeter was abandoned. Shealey was wearing a dark hooded sweatshirt that appeared to have plant material stuck to it. Police stopped Shealey from getting into another car and held him until a show up identification could be conducted. Brown identified Shealey as one of the intruders with 75% certainty. During a search of Shealey incident to his arrest, police found keys belonging to the abandoned vehicle in Shealey's pocket.
During an inventory of the abandoned vehicle, the police found items belonging to Aikens and Brown including a TV, cellphones, shoes, hats, and a PlayStation 3. Police also found a white latex glove, a switchblade knife, checkbooks, a bandana, and what appeared to be a handgun in the abandoned vehicle. A rosary belonging to Brown and another white latex glove were found in the roadway near the abandoned vehicle. The object appearing to be a handgun was located on the floorboard with wires from the TV. When police later tried to clear the object appearing to be a handgun, it was discovered that it was an airsoft BB gun.
Based on the events of 8 November 2013, Gilmore and Shealey were each indicted by a Guilford County Grand Jury on one count of assault with a deadly weapon inflicting serious injury, one count of conspiracy to commit robbery with a dangerous weapon, one count of first degree burglary, and two counts of robbery with a dangerous weapon.
On motion by the State and over objection by Shealey, defendants' cases were joined and called for trial in Guilford County Superior Court on 15 September 2014, the Honorable R. Stuart Albright, Judge presiding. At the conclusion of the trial, on 19 September 2014, the jury returned verdicts finding defendants guilty of all charges and the trial court entered judgments imposing identical sentences for defendants. First, the trial court imposed consecutive sentences totaling 50 to 84 months for the assault with a deadly weapon inflicting serious injury and conspiracy to commit robbery with a dangerous weapon convictions. The trial court then imposed consecutive sentences totaling 153 to 222 months for the first degree burglary and robbery with a dangerous weapon convictions, which were to run concurrently with the sentences for assault with a deadly weapon inflicting serious injury and conspiracy to commit robbery with a dangerous weapon. Gilmore and Shealey both gave notice of appeal in open court.
II. Discussion
On appeal, both Gilmore and Shealey raise the following issues: whether the trial court (1) erred in denying the motions to dismiss the robbery with a dangerous weapon charges due to fatal variances; (2) erred in denying the motions to dismiss the conspiracy charges due to insufficiency of the evidence; (3) plainly erred by instructing the jury on a theory of armed robbery not alleged in the indictments; and (4) plainly erred by not instructing the jury on conspiracy to commit common law robbery. Shealey additionally raises a fifth issue which Gilmore does not join—whether the trial court (5) erred in denying his motion to dismiss the assault with a deadly weapon inflicting serious injury charge due to insufficiency of the evidence.
Standards of Review
“This Court reviews the trial court's denial of ... motion[s] to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). “ ‘Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.’ “ State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). “In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L.Ed.2d 818 (1995).
Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence. If the evidence presented is circumstantial, the court must consider whether a reasonable inference of defendant's guilt may be drawn from the circumstances. Once the court decides that a reasonable inference of defendant's guilt may be drawn from the circumstances, then it is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.
Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citation and quotation marks omitted) (emphasis in original).
Generally, “[arguments] challenging the trial court's decisions regarding jury instructions are reviewed de novo by this Court.” State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009). Yet, “[a] party 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) (2015); see also 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). “In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N.C. R.App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied, 555 U.S. 835, 172 L.Ed.2d 58 (2008). The North Carolina Supreme Court “has elected to review unpreserved issues for plain error when they involve ... errors in the judge's instructions to the jury....” State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996).
For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings[.]
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations and quotation marks omitted).
1. Motions to Dismiss Robbery with a Dangerous Weapon Charges
On appeal, defendants first contend the trial court erred in denying their motions to dismiss the robbery with a dangerous weapon charges due to fatal variances between the indictments and the evidence at trial. We disagree.
Below, Shealey and Gilmore were each indicted on two counts of robbery with a dangerous weapon. Although similar, the indictments for defendants differed slightly. The robbery indictments in Shealey's case alleged Shealey committed robberies “by means of an assault consisting of having in possession and threatening the use of a firearm, to wit: a handgun, whereby the [lives] of [the victims were] threatened and endangered.” (Emphasis added.) The robbery indictments in Gilmore's case alleged Gilmore committed robberies “by means of an assault consisting of having in possession and threatening the use of a dangerous weapon, to wit: a handgun, whereby the [lives] of [the victims were] threatened and endangered.” (Emphasis added.)
At the conclusion of the State's evidence, defendants moved to dismiss the robbery with a dangerous weapon charges alleging fatal variances. Defendants argued there was no evidence a dangerous weapon was used in the robbery, instead claiming the evidence was that an airsoft BB gun was used. In response, the State argued it was unclear whether the airsoft BB gun found in the abandoned vehicle was used in the robbery. Furthermore, the State argued if the airsoft BB gun was used in the robbery, it was used as a blunt force object and constituted a dangerous weapon. Upon considering the arguments, the trial court denied defendants' motions. The trial court denied the motions again upon defendants' renewal of the motions at the close of all the evidence.
At the outset, we note that each indictment for robbery with a dangerous weapon was sufficient on its face to charge defendants with the offense. Yet, “[w]hether an indictment is sufficient on its face is a separate issue from whether there is a variance between the indictment and the evidence presented at trial, although both issues are based upon the same concerns.” State v. Norman, 149 N.C.App. 588, 594, 562 S.E.2d 453, 457 (2002).
It is the settled rule that the evidence in a criminal case must correspond with the allegations of the indictment which are essential and material to charge the offense. This rule is based upon the requirements that the accused shall be definitely informed as to the charges against him, and that he may be protected against another prosecution for the same offense.
State v. McDowell, 1 N.C.App. 361, 365, 161 S.E.2d 769, 771 (1968). “A variance occurs where the allegations in an indictment, although they may be sufficiently specific on their face, do not conform to the evidence actually established at trial.” Norman, 149 N.C.App. at 594, 562 S.E.2d at 457. “In order for a variance to warrant reversal, the variance must be material. A variance is not material, and is therefore not fatal, if it does not involve an essential element of the crime charged.” Id. (internal citation omitted).
The essential elements of robbery with a dangerous weapon are: “(1) an unlawful taking or an attempt to take personal property from the person or in the presence of another, (2) by use or threatened use of a firearm or other dangerous weapon, (3) whereby the life of the person is endangered or threatened.”
State v. Blair, 181 N.C.App. 236, 240–41, 638 S.E.2d 914, 918 (2007) (quoting State v. Mann, 355 N.C. 294, 303, 560 S.E.2d 776, 782 (2002)); see also N.C. Gen.Stat. § 14–87 (2013).
Defendants now reassert the argument that there was a fatal variance claiming the evidence at trial showed the use of an airsoft BB gun in perpetration of the robbery, which defendants contend cannot constitute a dangerous weapon, firearm, or handgun as alleged in the indictments. In support of their argument, defendants direct our attention to statutes that define firearm as “[a] handgun, shotgun, or rifle which expels a projectile by action of an explosion[,]” N.C. Gen.Stat. § 14–409.39(2) (2013), see also N .C. Gen.Stat. § 14–415.1(a) (2013) (defining firearm for purposes of the offense of possession of a firearm by a felon as “any weapon ... which will or is designed to ... expel a projectile by the action of an explosive”), define a handgun as “[a] pistol, revolver, or other gun that has a short stock and is designed to be held and fired by the use of a single hand[,]” N.C. Gen.Stat. § 14–409.39(3), and distinguish between the offenses of possessing “any gun, rifle, pistol, or other firearm of any kind on educational property” and possessing “any BB gun ... on educational property” by differentiating the offense classes. Compare N.C. Gen.Stat. § 14–269.2(b) and (d) (2013). Defendant also directs this Court to its own decision in In re N.T., in which this Court concluded an airsoft BB gun did not constitute a “gun” for purposes of assault by pointing a gun under N.C. Gen.Stat. § 14–34 because “the term ‘gun’ as used in N.C. Gen.Stat. § 14–34 encompasses devices ordinarily understood to be ‘firearms' and not other devices that fall outside that category.” 214 N.C.App. 136, 142–43, 715 S.E.2d 183, 187 (2011). Defendants then cite cases where this Court has found fatal variances when the evidence is that a weapon different from that alleged in an indictment was used.
This Court, however, further explained in In re N.T. that the “conclusion that the airsoft pistol at issue here is not a ‘gun’ for purposes of N.C. Gen.Stat. § 14–34 has no bearing on the issue of whether Juvenile might be subject to being found delinquent for assault with a deadly weapon inflicting serious injury in violation of N.C. Gen.Stat. § 14–32(b), assault with a deadly weapon or assault inflicting serious injury in violation of N.C. Gen.Stat. § 14–33(c)(1), or assault on a child under the age of twelve in violation of N.C. Gen.Stat. § 14–33(c)(3).” 214 N.C.App. at 145, 715 S.E.2d at 188–89.
Upon review of defendants' arguments and the record, we are not persuaded there was a fatal variance in this case or that the trial court erred.
This Court has previously addressed questions concerning the sufficiency of evidence to support charges of robbery with a dangerous weapon “where the instrument used appears to be, but may not in fact be, a firearm or other dangerous weapon capable of endangering or threatening the life of another.” State v. Allen, 317 N.C. 119, 124, 343 S.E.2d 893, 897 (1986). In various cases, there has been evidence that what appeared to be a firearm may have been a BB gun, pellet gun, cap gun, or a real gun that was unloaded or otherwise not operational. See State v. Joyner, 312 N.C. 779, 324 S.E.2d 841 (1985), Allen, 317 N.C. 119, 343 S.E.2d 893, State v. Fleming, 148 N.C.App. 16, 557 S.E.2d 560 (2001), State v. Holt, ––– N.C.App. ––––, 773 S.E.2d 542 (2015). In deciding those cases, our appellate courts followed evidentiary rules to resolve the sufficiency of evidence question.
The rules are: (1) When a robbery is committed with what appeared to the victim to be a firearm or other dangerous weapon capable of endangering or threatening the life of the victim and there is no evidence to the contrary, there is a mandatory presumption that the weapon was as it appeared to the victim to be. (2) If there is some evidence that the implement used was not a firearm or other dangerous weapon which could have threatened or endangered the life of the victim, the mandatory presumption disappears leaving only a permissive inference, which permits but does not require the jury to infer that the instrument used was in fact a firearm or other dangerous weapon whereby the victim's life was endangered or threatened. (3) If all the evidence shows the instrument could not have been a firearm or other dangerous weapon capable of threatening or endangering the life of the victim, the armed robbery charge should not be submitted to the jury.
Allen, 317 N.C. at 124–25, 343 S.E.2d at 897. More succinctly,
[i]n an armed robbery case the jury may conclude that the weapon is what it appears to the victim to be in the absence of any evidence to the contrary. If, however, there is any evidence that the weapon was, in fact, not what it appeared to the victim to be, the jury must determine what, in fact, the instrument was. Finally, if other evidence shows conclusively that the weapon was not what it appeared to be, then the jury should not be permitted to find that it was what it appeared to be.
Id. at 125, 343 S.E.2d at 897.
In the present case, defendants contend the airsoft BB gun recovered from the abandoned vehicle is not a firearm or handgun and, therefore, there is a fatal variance between the indictments and the evidence. This contention relies on the premise that the evidence conclusively established that the airsoft BB gun recovered from the abandoned vehicle was the “handgun” used in the robbery. We do not think the evidence was definitive. Thus, the issue this Court must address is not whether the airsoft BB gun is a firearm or handgun, but whether there was sufficient evidence to support the charges as alleged in the indictments. We find the above rules and this Court's analysis in the recent Holt decision instructive.
Applying the Allen rules to the facts presented in Holt, this Court held the trial court did not err in denying the defendant's motion to dismiss a robbery with a dangerous weapon charge because there was no evidence conclusively linking a BB pistol or pellet gun found near the robbery scene to the robbery. ––– N.C.App. at ––––, 773 S.E.2d at 547. Moreover, this Court reasoned that even if the BB pistol and pellet gun could be conclusively linked to the robbery, there was some evidence that a third handgun was used during the robbery from which the jury could find defendant guilty. ––– N.C.App. at ––––, 773 S.E.2d at 547.
In light of the preceding analysis, [this Court explained that it] concluded that while there is some evidence that the implements used were not ... firearms or other dangerous weapons which could have threatened or endangered the lives of the victims, when considered collectively, the evidence does not conclusively demonstrate that each of the instruments used during the robbery could not have been a firearm or other dangerous weapon. We therefore conclude further that, despite [the d]efendant's protestations to the contrary, this case falls within the Allen test's second category, which means that although the mandatory presumption of dangerousness attached to the Allen test's first category disappears, there remains a permissive inference for the jury's determination as to whether the weapons used during the robbery were, in fact, dangerous.
Id. (quotation marks, citations, and alterations in original omitted).
In the present case, both victims testified that the four intruders had one handgun which looked like a real handgun. Brown specified that the gun was “like a nine, little handgun.” Aikens testified he thought he was going to be shot. Although an airsoft BB gun was later found in the vehicle abandoned by the intruders, there is no evidence conclusively linking the airsoft BB gun to the robbery. When questioned about a picture of the airsoft BB gun, Aikens testified that the gun in the picture “looks like the same gun[,]” but Aikens also testified that he did not know anything about guns and had never seen a gun before. Furthermore, there is evidence that Aikens was struck in the head with the gun used in the robbery and was bleeding; yet, CSI testified there was no blood on the airsoft BB gun found in the abandoned vehicle. Lastly, a significant amount of time elapsed between when defendants abandoned the vehicle and when defendants were detained during which one of the intruders could have disposed of a handgun.
Similar to Holt, while there is some evidence in this case that the weapon used by defendants in the robbery was not real, there is no evidence conclusively establishing the airsoft BB gun found in the abandoned vehicle was used in the robbery. Thus, this case fits within the Allen test's second category, “which permits but does not require the jury to infer that the instrument used was in fact a firearm or other dangerous weapon whereby the victim[s'] li[ves were] endangered or threatened.” Allen, 317 N .C. at 124, 343 S.E.2d at 897. Because the jury could determine from the evidence that a real firearm or handgun was used during the robbery, there was no fatal variance and the trial court did not err in denying defendants' motions to dismiss the robbery with a dangerous weapon charges.
2. Motion to Dismiss Conspiracy Charge
At trial, defendants also moved to dismiss the conspiracy to commit robbery with a dangerous weapon charges. The trial court denied those motions. Now in the second issue on appeal, defendants contend the trial court erred in denying their motions to dismiss the conspiracy charges because there was no evidence of an agreement to commit robbery with a dangerous weapon.
“A criminal conspiracy is an agreement between two or more people to do an unlawful act or to do a lawful act in an unlawful manner. In order to prove conspiracy, the State need not prove an express agreement; evidence tending to show a mutual, implied understanding will suffice.” State v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835 (1991) (citation omitted). Yet, “the State must prove an agreement to perform every element of the crime.” State v. Suggs, 117 N.C.App. 654, 661, 453 S.E.2d 211, 215 (1995). The evidence may be circumstantial or inferred from the defendants' behavior. See State v. Choppy, 141 N.C.App. 32, 39, 539 S.E.2d 44, 49 (2000), disc. rev. denied, 353 N.C. 384, 547 S.E.2d 817 (2001). “While conspiracy can be proved by inferences and circumstantial evidence, it cannot be established by a mere suspicion[.]” State v. Benardello, 164 N.C.App. 708, 711, 596 S.E.2d 358, 360 (2004) (internal quotation marks omitted). “Ordinarily the existence of a conspiracy is a jury question.” State v. Gary, 78 N.C.App. 29, 35, 337 S.E.2d 70, 74 (1985), disc. review denied, 316 N.C. 197, 341 S.E.2d 586 (1986).
In this case, defendants assert there was no agreement to use a dangerous weapon in perpetration of the robbery and, at most, the evidence was sufficient for the jury to infer that they agreed to commit common law robbery. This assertion, like defendants' argument in the first issue on appeal, is based on the erroneous premise that the evidence firmly establishes the airsoft BB gun recovered from the abandoned vehicle was used in the robbery.
As defendants acknowledge, there is sufficient evidence in this case of an agreement to commit the robbery. Furthermore, as we determined in the first issue on appeal, there is sufficient evidence from which the jury could determine the robbery was committed with the use of a real firearm or handgun, not the airsoft BB gun. Viewing the totality of the evidence in the light most favorable to the State, we hold there was sufficient evidence from which the jury could infer there was an agreement to commit robbery with a dangerous weapon. Thus, the trial court did not err in denying defendants' motion to dismiss the conspiracy charges; the issue was properly presented to the jury for determination.
3. Instruction on Robbery with a Dangerous Weapon
As an alternative to the first issue on appeal, defendants contend the trial court plainly erred by instructing the jury on a theory of armed robbery not alleged in the indictments. Specifically, defendants assert the trial court's instructions to the jury for robbery with a dangerous weapon allowed the jury to convict under a more expansive theory of guilt than alleged in the indictments because the instructions referred only to a dangerous weapon and not specifically a firearm or handgun. Because defendants did not object at trial, we are limited to reviewing for plain error.
“It is a well-established rule in this jurisdiction that it is error, generally prejudicial, for the trial judge to permit a jury to convict upon some abstract theory not supported by the bill of indictment.” State v. Taylor, 301 N.C. 164, 170, 270 S.E.2d 409, 413 (1980). Yet, we do not believe that to be the circumstance in this case.
Below, the trial court instructed the jury separately on each count of robbery with a dangerous weapon, identifying the defendant and victim in each instance. For each count of the offense, the trial court instructed the jury that the State must prove the sixth element, in pertinent part, as follows:
[T]hat [the defendant] or someone with whom he was acting in concert had a dangerous weapon in his possession at the time he obtained the property or that it reasonably appeared to [the victim] that a dangerous weapon was being used, in which case you may infer that the said instrument was what [the defendant's] conduct or the conduct [of] someone with whom he was acting in concert represented it to be.
Defendants now reassert the argument that an airsoft BB gun is not a firearm or handgun and contend the above instruction allowed the jury to convict for use of any dangerous weapon. Defendants further assert the jury probably would have reached a different verdict had the instructions included the terms firearm or handgun.
Upon review, we do not think the trial court's instructions presented an abstract theory of the case. As discussed above, the evidence at trial was sufficient to show the use of a firearm or handgun in perpetration of the robbery. While there was also evidence indicating the weapon used in the robbery might have been the airsoft BB gun recovered in the abandoned vehicle, that evidence was not conclusive. The instructions provided by the trial court sufficiently tracked the indictments. Moreover, while the instructions could have been clearer by identifying the dangerous weapon as a firearm or handgun, the trial court's instructions on some of the other charges did refer to a gun and we are not persuaded that jury would have probably reached a different verdict had the terms “firearm” or “handgun” been substituted in place of “dangerous weapon.” In fact, it is unlikely the jury would have reached a different verdict where the instructions permitted the jury to find defendants guilty of robbery with a dangerous weapon if defendants were in possession or reasonably appeared to be in possession of a dangerous weapon. Therefore, even if the trial court did err in instructing the jury on robbery with a dangerous weapon, defendants have not established that the error amounted to plain error.
4. Lack of a Conspiracy to Commit Common Law Robbery Instruction
As an alternative to the second issue on appeal, defendants contend the trial court plainly erred by failing to instruct the jury on conspiracy to commit common law robbery as a lesser offense of conspiracy to commit robbery with a dangerous weapon. Because there was no request for the instruction and no objection to the conspiracy instructions given, we are limited to reviewing for plain error.
At the outset of this issue, we note that Gilmore invited the alleged error below when, during his motion to dismiss at the close of the State's evidence, Gilmore argued to the trial court that there was no lesser included conspiracy charge to conspiracy to commit robbery with a dangerous weapon—Gilmore indicated it was either conspiracy to commit armed robbery or not. As a consequence, Gilmore has waived review of the issue. See State v. Goodwin, 190 N.C.App. 570, 574, 661 S.E.2d 46, 49 (2008) (“A defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct. Thus, a defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review.”) (internal quotation marks and citations omitted), disc. rev. denied, 363 N.C. 133, 675 S.E.2d 664 (2009). Nevertheless, we reach the merits of the issue because Shealey also raises the issue on appeal and did not invite the error below.
“It is the duty of the trial court to instruct the jury on all substantial features of a case raised by the evidence.” State v. Shaw, 322 N.C. 797, 803, 370 S.E.2d 546, 549 (1988). “Failure to instruct upon all substantive or material features of the crime charged is error.” State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748 (1989). Yet, “[t]he adoption of the ‘plain error’ rule does not mean that every failure to give a proper instruction mandates reversal regardless of the defendant's failure to object at trial.” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). “Indeed, even when the ‘plain error’ rule is applied, it is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” Id. at 660–61, 300 S.E.2d at 378 (quotation marks and alterations in original omitted).
In support of their plain error argument, defendants rely on this Court's opinion in State v. Carter, 177 N.C.App. 539, 629 S.E.2d 332, affirmed per curiam, 361 N.C. 108, 637 S.E.2d 537 (2006). In Carter, this Court held it was plain error for the trial court not to instruct the jury on conspiracy to commit common law robbery as a lesser offense of conspiracy to commit robbery with a dangerous weapon when there was a question as to whether the weapon used in the robbery was a real gun. 177 N.C.App. at 543–44, 629 S.E.2d at 336. This Court explained that
when the evidence presented at trial suggests that the weapon used during a robbery, or in this case as a central piece of the conspiracy, is inoperable or fake, the jury must be instructed on the offense of common law robbery. In the instant case, the trial court properly instructed the jury on the offenses of robbery with a dangerous weapon and common law robbery, apparently based on the conflicting evidence regarding whether the gun used was real or fake. The same conflicting evidence directly pertained to [the] defendant's charge of conspiracy to commit robbery with a dangerous weapon, in that the evidence regarding the agreement between [the] defendant ... and the other parties to the conspiracy also was conflicting as to whether or not the gun ... was in fact real. Thus, we hold the trial court erred in failing to instruct the jury on the offense of conspiracy to commit common law robbery, and in doing so the trial court improperly limited the jury's consideration of the offenses which [the] defendant could be found guilty of.
Id.
In light of Carter, it is clear the trial court erred in the present case by failing to issue an instruction on conspiracy to commit common law robbery. That error, however, does not amount to plain error.
Although this Court emphasized in Carter that “[i]n order ... to find that the trial court's failure to instruct the jury on the offense of conspiracy to commit common law robbery amounts to plain error, [the] defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result[,]” id. at 543, 629 S.E.2d at 336 (quotations marks and citations omitted), there is no indication, besides the ultimate holding of a new trial, that the Court performed the second part of the plain error analysis. It appears this Court simply determined the trial court erred in failing to instruct on conspiracy to commit common law robbery, thereby improperly limiting the jury's consideration of the offenses for which the defendant could be found guilty. This Court did not provide any analysis as to whether the jury probably would have reached a different result absent the error. Id. at 543–44, 629 S.E.2d at 336.
Similar to Carter, in this case the jury was instructed on robbery with a dangerous weapon, common law robbery, and conspiracy to commit robbery with a dangerous weapon. Dissimilar to Carter, however, in this case defendants were found guilty of robbery with a dangerous weapon. Where the evidence in this case is that there was only one gun used in the robbery and the jury found defendants guilty of robbery with a dangerous weapon, we find it unlikely the failure to give an instruction on conspiracy to commit common law robbery probably impacted the jury's verdict. Thus, the trial court's error in failing to give the conspiracy to commit common law robbery instruction did not rise to the level of plain error.
5. Motion to Dismiss AWDWISI Charge
In the last issue on appeal, argued only by Shealey, Shealey contends the trial court erred in denying his motion to dismiss the assault with a deadly weapon inflicting serious injury charge.
“The elements of assault with a deadly weapon inflicting serious injury are (1) an assault (2) with a deadly weapon (3) inflicting serious injury (4) not resulting in death.” State v. Uvalle, 151 N.C.App. 446, 453, 565 S.E.2d 727, 731 (2002) (internal quotation marks and citation omitted). Besides Shealey's repeated assertion that the airsoft BB gun was used in the robbery, which we have already addressed at length, Shealey does not contest the sufficiency of the evidence as to the other elements. Instead, Shealey contests the sufficiency of the evidence to support his conviction based on the theory of acting in concert.
It is well established that
[i]f 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) (internal quotation marks omitted).
Shealey argues “the evidence fails to establish that the assault on Aikens was committed ‘in pursuance of the common purpose’ ... ‘or as a natural or probable consequence thereof.’ “ We are not persuaded.
This Court has explained that
[u]nder Barnes, the crime must be committed in pursuance of the common purpose ... or as a natural or probable consequence thereof. The critical question is whether the crimes committed are a foreseeable outgrowth of the common plan. The issue does not turn on the defendant's subjective state of mind, but depends upon whether, under all of the circumstances presented, a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the principal crime.
State v. Clagon, 207 N.C.App. 346, 351, 700 S.E.2d 89, 92–93 (2010) (internal quotation marks, citations, and alterations omitted). Upon review of the evidence in this case, we hold it is reasonably foreseeable that when four intruders force their way into an apartment with a handgun and intend to rob the occupants, the handgun may be used to strike someone during the course of the robbery. Thus, the acting in concert instruction in this case was warranted and the trial court did not error in denying defendant's motion to dismiss the assault with a deadly weapon inflicting serious injury charge.
III. Conclusion
For the reasons discussed, we hold the trial court did not err in denying defendants' motions to dismiss. We further hold the trial court did not plainly error in instructing the jury.
NO ERROR.
Judges STEPHENS and ZACHARY concur.
Report per Rule 30(e).