Opinion
No. COA09-988
Filed 18 May 2010 This case not for publication
Appeal by defendant from judgments entered 19 February 2007 by Judge Linwood O. Foust in Mecklenburg County Superior Court. Heard in the Court of Appeals 19 April 2010.
Attorney General Roy Cooper, by Assistant Attorney General Kimberly L. Wierzel, for the State. Anne Bleyman for defendant-appellant.
Mecklenburg County Nos. 06 CRS 206554-55
Defendant Kadarre Lamar Taylor appeals from judgments entered after a jury found him guilty of robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. Defendant contends that the trial court erred when it denied his motion to dismiss the conspiracy charge, and erred when it failed to instruct the jury on the identity of defendant as the perpetrator of the offenses. We find no prejudicial error.
At about 1:30 p.m. on 5 January 2006, two men entered the grocery store where Carla Cervantes worked as a cashier. Both men were wearing bandanas that covered their faces from the nose down.
Defendant, the taller of the two men, pointed a revolver at Ms. Cervantes and told her to put her hands up. Ms. Cervantes immediately recognized defendant, even with his face partially covered, because he regularly shopped at the store and would flirt with her. In fact, on one prior occasion defendant said, "Put your hands up" to Ms. Cervantes in Spanish. Ms. Cervantes had just returned from getting change from another cashier when the robbers entered the store, and defendant grabbed the other cashier by the hair while pointing the gun at her head and took her to the store office.
In the office, Segundo Patricio Salto-Lopez was facing away from the office door when he heard heavy footsteps, as if someone was running. Mr. Salto-Lopez felt like someone was standing right behind him, and he looked back and saw defendant pointing a gun at his head. Like Ms. Cervantes, Mr. Salto-Lopez recognized defendant because he was a frequent customer. Defendant said, "Open the safe." Mr. Salto-Lopez opened the safe. Defendant's accomplice took about $1,500.00, and the two robbers fled the store. Mr. Salto-Lopez was not able to see the second robber well, but noticed that he was shorter than defendant. In addition to their in-court identifications of defendant, both Ms. Cervantes and Mr. Salto-Lopez identified defendant from a photo lineup.
The jury found defendant guilty of robbery with a firearm and conspiracy to commit robbery with a firearm. The trial court found defendant to have a prior record level of II, and imposed a term of 64 to 86 months' imprisonment for the robbery conviction, and a concurrent term of 23 to 37 months' imprisonment for the conspiracy conviction. On 1 October 2008, this Court allowed defendant's petition for writ of certiorari to review the judgments.
First, we address defendant's argument that the trial court erred when it denied his motion to dismiss the charge of conspiracy to commit armed robbery, because the State offered insufficient evidence of an agreement to commit robbery. We disagree.
In evaluating the sufficiency of the evidence, "the trial court is to determine whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant's being the perpetrator of the offense." State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-52 (1982). "The trial court must review the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom." State v. Squires, 357 N.C. 529, 535, 591 S.E.2d 837, 841 (2003).
Our courts have defined a criminal conspiracy:
"A criminal conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means. To constitute a conspiracy it is not necessary that the parties should have come together and agreed in express terms to unite for a common object; rather, a mutual, implied understanding is sufficient, so far as the combination or conspiracy is concerned, to constitute the offense. The conspiracy is the crime and not its execution."
State v. Essick, 67 N.C. App. 697, 700, 314 S.E.2d 268, 271 (1984) (quoting State v. Abernathy, 295 N.C. 147, 164-65, 244 S.E.2d 373, 384 (1978)).
"`Direct proof of the charge' (conspiracy) `is not essential, for such is rarely obtainable. It may be, and generally is, established by a number of indefinite acts, each of which standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy.'" State v. Smith, 237 N.C. 1, 17, 74 S.E.2d 291, 302 (1953) (quoting State v. Whiteside, 204 N.C. 710, 712, 169 S.E. 711, 712 (1933)).
Here, although defendant is correct that there is no direct evidence of an explicit agreement to commit the robbery, the evidence points unerringly to the existence of a conspiracy. Both defendant and the other robber were identified as regular customers in the store. The robbers entered the store together, both wearing bandanas in the same manner in an apparent attempt to conceal their identities. Defendant carried the gun and used it to gain access to the store's office. As defendant kept his gun trained on Mr. Salto-Lopez, the other robber took money from the safe. Defendant and the other robber then fled the store together. Considered collectively, and in the light most favorable to the State, the evidence points to the conclusion that defendant and the other robber acted together in a conspiracy to rob the store. Therefore, we hold that the trial court properly denied defendant's motion to dismiss the conspiracy charge.
Defendant's remaining argument is that the trial court committed prejudicial error by failing to instruct the jury on defendant's identity as the perpetrator. We disagree.
As a preliminary matter, we note that defendant did not object to the jury charge after it was given when it was apparent that the trial court failed to include the identity instruction as the parties had previously agreed. However, since defendant has raised plain error on appeal and plain error may be argued as to jury instructions, we apply this standard of review to the case sub judice. N.C.R. App. P. 10(c)(4) (2009); State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996).
To show plain error, defendant must demonstrate either "(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 fair trial." State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997). Plain error requires a defendant to show that the error alleged was prejudicial. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983).
When giving instructions to the jury, "[t]he presiding judge in his charge to the jury must declare and explain the law arising on the evidence relating to each substantial feature of the case." State v. Everette, 284 N.C. 81, 87, 199 S.E.2d 462, 467 (1973); see N.C. Gen. Stat. § 15A-1232 (2009). We agree with defendant that a jury instruction on the identity of the perpetrator was appropriate in this case, because part of the defense presented at trial focused on whether the testifying victims had properly identified defendant given that defendant's face was partially covered during the robbery. See State v. Shaw, 322 N.C. 797, 803, 370 S.E.2d 546, 549 (1988). Since an instruction on identity was necessary, and a review of the record reveals that the trial court did not give such an instruction, the omission was error in this case. However, as in Shaw, the omission of the identity instruction was not prejudicial. Shaw, 322 N.C. at 804, 370 S.E.2d at 549.
Defendant presents two arguments in particular in an effort to show prejudice. First, defendant contends that the strength of the State's evidence of his identity as the perpetrator is compromised by the victims' recognition of him as a frequent customer at the store. We find this argument unpersuasive, and in fact believe that the victims' testimony that they recognized defendant as a customer bolsters their identifications rather than undermines them.
Second, defendant argues that the trial court's instruction on acting in concert, in conjunction with the lack of an identity instruction, reduced the State's burden of proof. Again, we find this argument to be without merit. The trial court's substantive charge reminded jurors that "[t]he defendant, Kadarre Lamar Taylor, has been charged with robbery with a firearm," and that they must find "that the defendant took the property" and that "the defendant had a firearm in his possession at the time he obtained the property[.]" Furthermore, the trial court's mandate on the substantive charge reminded the jury:
If you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant had in his possession a firearm and took and carried away property from the person or presence of another person without his voluntary consent by endangering or threatening another person's life with the use or threatened use of a firearm, the defendant knowing that he was not entitled to take the property and intending to deprive that person of its use permanently, it would be your duty to return a verdict of guilty.
(Emphasis added.)
These instructions on defendant's identity as the perpetrator, repeated throughout the substantive charge, eliminated any potential prejudice from the trial court's failure to give a separate identity instruction. Shaw, 322 N.C. at 804-05, 370 S.E.2d at 550-51. Accordingly, we hold that the trial court did not commit prejudicial error when it failed to give the identity instruction.
No prejudicial error.
Judges McGEE and GEER concur.
Report per Rule 30(e).