Opinion
No. COA12–98.
2012-09-18
STATE of North Carolina v. Antonio Devante JONES.
Attorney General Roy Cooper, by Special Deputy Attorney General Grady L. Balentine, Jr., for the State. Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for defendant-appellant.
Appeal by defendant from judgments entered 25 August 2011 by Judge James E. Hardin, Jr. in Durham County Superior Court. Heard in the Court of Appeals 15 August 2012. Attorney General Roy Cooper, by Special Deputy Attorney General Grady L. Balentine, Jr., for the State. Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for defendant-appellant.
BRYANT, Judge.
Where the trial court denied defendant's motions to dismiss the charges of carrying a concealed weapon and attempted robbery with a dangerous weapon, we hold no error. Where the trial court denied defendant's requested instructions as defendant was not entitled to an instruction on the lesser included offenses of conspiracy to commit common law robbery and conspiracy to commit larceny, we hold no error.
On 10 December 2010, a confidential informant (CI) met with Corporal Mark Clancy of the Durham Police Department (DPD) to provide information that he had been contacted by Bernard Gray who was planning to commit an armed robbery. The CI had been asked to be the getaway driver. To aid in the investigation of the tip, the CI allowed his vehicle to be searched and wired for sound and allowed his person to be wired for sound. Corporal Clancy and other DPD officers organized an operation to follow the CI's vehicle on the night the robbery was to take place and listen to the conversation broadcast by the wires.
Upon picking up Gray, the CI noted that Gray had a firearm. Gray directed the CI to pick up Antonio Jones (defendant) from the bus terminal. After picking up defendant, Gray directed the CI to an apartment in the 800 block of Underwood Street, where defendant and Gray picked up masks, another gun, gloves, and hooded sweatshirts. Gray provided defendant with a .22 caliber handgun. The CI later testified that defendant brought the gun with him as the three men re-entered the CI's vehicle. Defendant sat in the backseat. After a conversation discussing potential robbery targets—a grocery store, a Comfort Inn, and a Marriot Hotel, the CI circled his vehicle around a Marriot Hotel “[s]coping out the place.” The CI later testified that the three discussed which hotel to rob and a decision was made to rob the Marriot Hotel. Both Gray and defendant were to go inside the hotel to commit the robbery.
The DPD officers followed the CI's vehicle from Underwood Street to the 1800 block of Hillandale Road near the Comfort Inn. From there, the vehicle drove to Front Street and parked in the parking lot of an office complex adjacent to a Courtyard Marriot. Cpl. Clancy testified that “we didn't want them to actually get out of the vehicle to rob anyplace. We needed to take them down before they actually committed the robbery.” While the CI, Gray, and defendant were seated in the CI's parked vehicle, the DPD officers approached, identified themselves as police officers and demanded the occupants to put up their hands. When defendant crouched down in the back seat, officers broke the windows of the vehicle. The CI, Gray, and defendant were removed from the vehicle and arrested.
Inside the vehicle, officers found a Beretta .22 in the back seat near where defendant was sitting; a .380 in the front passenger side door pocket; and in the glove compartment, nineteen individually wrapped bags of what the officers suspected was marijuana. Before the CI picked up Gray and defendant, his vehicle was searched and no weapons or contraband were found.
Defendant was indicted on 3 January 2011 and charged with conspiracy to commit robbery with a dangerous weapon, carrying a concealed weapon and attempted robbery with a dangerous weapon.
At trial on 17 August 2011, the trial court denied defendant's motions to dismiss the charges. The trial court also denied defendant's request to give instructions on the lesser included offenses of conspiracy to commit common law robbery and conspiracy to commit larceny. However, on the companion charge of attempted robbery, the court did provide instructions on attempted common law robbery and sent a verdict form including that lesser included offense and attempted larceny.
The jury found defendant guilty of conspiracy to commit robbery with a dangerous weapon, carrying a concealed weapon, and the lesser included offense of attempted common law robbery. Defendant appeals.
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On appeal, defendant raises the following issues: whether the trial court erred in (I) denying defendant's motions to dismiss the charges of carrying a concealed weapon and attempted robbery with a dangerous weapon; and (II) denying a request for an instruction on the lesser included offenses of conspiracy to commit common law robbery and conspiracy to commit larceny.
Defendant first argues that the trial court erred when it denied defendant's motion to dismiss the charges of carrying a concealed weapon and attempted robbery with a dangerous weapon based on insufficient evidence that the firearm was concealed and that it would be used to endanger life. We disagree.
“The denial of a motion to dismiss for insufficient evidence is a question of law which this Court reviews de novo.” State v.. Bagley, 183 N.C.App. 514, 523, 644 S.E.2d 615, 621 (2007) (citations omitted).
As to the charge of carrying a concealed weapon, the elements of the offense are: (1) The accused must be off his own premises; (2) he must carry a deadly weapon; and (3) the weapon must be concealed about his person. The State must prove that the weapon is concealed not necessarily on the person of the accused, but in such position as gives him ready access to it.
State v. Soles, 191 N.C.App. 241, 243–44, 662 S.E.2d 564, 566 (2008) (citations and quotation marks omitted).
Here, defendant does not dispute that he was off his own premises nor does he dispute carrying a deadly weapon. Defendant, however, contends that the .22 caliber handgun that was recovered from the rear floorboard slightly under the front passenger seat was not “concealed” because it was not concealed about his person and thus, the trial court erred by allowing this charge to go to the jury. However, this Court has interpreted the language “concealed about his person” to mean:
concealed near, in close proximity to him, and within his convenient control and easy reach, so that he could promptly use it, if prompted to do so by any violent motive. It makes no difference how it is concealed, so it is on or near to and within the reach and control of the person charged.
Id. at 244, 662 S.E.2d at 566 (citation and quotation marks omitted). State v. Gainey involved a similar issue in which one of the defendants, who was the driver of the vehicle, was found guilty of concealing a rifle that was recovered from the floorboard in front of the rear seat. 273 N.C. 620, 621–22, 160 S.E.2d 685, 686 (1968). The Supreme Court noted that “[defendant] was in the driver's seat. The rifle was under the back seat. [And,] [t]hree men were riding on that seat.” Id. at 623, 160 S.E.2d at 687. The Court held that “[t]he evidence was insufficient to warrant the conviction ... for carrying the rifle concealed about his person” because the weapon was in such a position that the defendant would not have had ready access to it. Id. at 623, 160 S.E.2d at 687.
However, in the case before us the weapon was placed within close proximity and easy reach of defendant so that he had the ability to promptly use it. This evidence was sufficient to warrant defendant's conviction for carrying a concealed weapon about his person.
Defendant also argues that the State did not provide sufficient evidence that the firearm would be used to endanger life. “A person commits the felony of attempted robbery with a dangerous weapon when a person, with the specific intent to unlawfully deprive another of personal property by endangering or threatening his life with a dangerous weapon, does some overt act calculated to bring about this result.” State v. Lawrence, ––– N.C.App. ––––, ––––, 706 S.E.2d 822, 832 (2011) (citation omitted), rev'd on other grounds,–––– N.C. ––––, 723 S.E.2d 326 (2012).
Similar to defendant in the present case, the defendant in Lawrence argued that there was insufficient evidence to show that his actions amounted to attempted robbery because he was never in the presence of the intended victim. Id. This Court disagreed with that contention and stated that “an overt act which goes beyond ‘mere preparation’ but does not amount to the completed offense” is sufficient to support a conviction for attempted robbery. Id. “[A]n overt act is one that stand[s] either as the first or some subsequent step in the direct movement towards the commission of the offense after the preparations are made.” Id. at ––––, 706 S.E.2d at 832–33 (citation and quotation marks omitted).
Here, defendant made a substantial step in the direct movement towards the commission of a robbery with a dangerous weapon when he was informed that Gray planned on committing a robbery the evening defendant was picked up from the bus terminal, defendant accepted from Gray a .22 caliber handgun as well as a hooded sweatshirt, participated in a discussion on which business to rob, even suggesting a grocery store, and agreed to accompany Gray into a Marriot Hotel for the purpose of committing a robbery while sitting in a vehicle parked in a lot adjacent to a Marriot Hotel. Therefore, the evidence was sufficient to warrant the charge of attempted robbery. Accordingly, we hold no error in the trial court's denial of defendant's motion to dismiss.
II
Defendant next argues that the trial court erred by denying his request for an instruction on the lesser included offenses of conspiracy to commit common law robbery and conspiracy to commit larceny. We disagree.
“This Court reviews a defendant's challenge to a trial court's decision to instruct the jury on the issue of the defendant's guilt of a lesser included offense ... on a de novo basis.” State v. Debiase, –––– N.C.App. ––––, ––––, 711 S.E.2d 436, 441 (2011) (citations omitted).
[A] judge presiding over a jury trial must instruct the jury as to a lesser included offense of the crime charged where there is evidence from which the jury could reasonably conclude that the defendant committed the lesser included offense. In determining whether the evidence is sufficient to support the submission of the issue of a defendant's guilt of a lesser included offense to the jury, courts must consider the evidence in the light most favorable to the defendant. However, if the State's evidence is sufficient to fully satisfy its burden of proving each element of the greater offense and there is no evidence to negate those elements other than [the] defendant's denial that he committed the offense, defendant is not entitled to an instruction on the lesser offense.
Id. (citations, quotation marks, and brackets omitted).
Here, in the light most favorable to the State, the State provided sufficient evidence to satisfy its burden of proving each element of the greater offense of conspiracy to commit robbery with a firearm. “In order to prove conspiracy, the State need not prove an express agreement; evidence tending to show a mutual, implied understanding will suffice. Nor is it necessary that the unlawful act be completed.” State v. Dubose, 208 N.C.App. 406, ––––, 702 S.E.2d 330, 333 (2010). The evidence shows that defendant agreed to unlawfully take the property of another by violent intimidation when he retrieved a .22 caliber handgun from Gray as well as a hooded sweatshirt, participated in conversations discussing which business to rob, and agreed to enter the Marriot Hotel along with Gray to commit a robbery.
Defendant's denial that he intended to use the firearm for purposes of committing the robbery is not evidence that entitles him to an instruction on the lesser included offenses of conspiracy to commit common law robbery and conspiracy to commit larceny. Accordingly, we hold no error in the trial court's denial of defendant's request for an instruction on a lesser included offense.
No error. Judges STEPHENS and THIGPEN concur.
Report per Rule 30(e).