Opinion
No. COA10-1085
Filed 7 June 2011 This case not for publication
Appeal by defendant from judgment entered 4 February 2010 by Judge Lindsay R. Davis, Jr. in Rockingham County Superior Court. Heard in the Court of Appeals 22 March 2011.
Attorney General Roy Cooper, by Assistant Attorney General Charles E. Reece, for the State. Cheshire, Parker, Schneider, Bryan Vitale, by John Keating Wiles, for defendant-appellant.
Rockingham County No. 09 CRS 51701.
Randall Travis Williams ("defendant") appeals from a judgment entered after a jury found him guilty of first degree burglary and robbery with a dangerous weapon. After careful review, we find no error.
Background
On 27 March 2009, Michael Shuff, his wife, Charlotte Mae Shuff, their daughters, McKia Shuff ("McKia") and Marcia Broadnax ("Marcia"), and their three minor grandchildren, were asleep in their home in Eden, North Carolina. During the night, Mr. and Mrs. Shuff suddenly heard "[a] noise like they broke the door in." Shortly thereafter, two men entered their bedroom and demanded money. One of the men carried a "long gun" while the other carried a pistol. Both men wore ski masks and coveralls. Mr. Shuff initially told the men that he did not have any money, but the men continued to yell at Mr. and Mrs. Shuff, demanding money and knocking everything off Mrs. Shuff's bedside table. Mrs. Shuff retrieved over $5,000.00 from a nearby clothes bin, gave it to one of the men, and the two men fled the house.
Marcia was in the bathroom of the house when she heard a loud noise. As she was about to leave the bathroom, she heard someone saying "give us the GD money," and decided to remain in the bathroom. McKia awoke to a "boom sound" and shortly thereafter a female broke her door in, entered her bedroom with an object in her hand that resembled a stick, and told McKia not to move. McKia called the police after the three intruders fled from the house.
The evidence at trial tended to establish that the invasion of the Shuff residence was planned at least two days in advance and involved defendant, Timmy London (defendant's cousin), Jason Booth, Jamie Jacobs (Mr. London's girlfriend), and Jessica Lewis (Mr. Booth's girlfriend). Ms. Jacobs and Ms. Lewis both testified at trial.
Ms. Jacobs testified that on 27 March 2009, she returned home from work to find Mr. London, Mr. Booth, and Ms. Lewis, in her home. At approximately 9:00 p.m., Mr. London and Mr. Booth left to get pizza and returned between 9:30 and 10:00 p.m. with defendant. The group then discussed the robbery and the roles that each person would take, including "who was going to the bedroom," and "who was going to have what weapon." The group left Ms. Jacobs' home between 2:30 and 3:00 a.m. and headed to the Shuff residence. Ms. Jacobs and Ms. Lewis both testified that Mr. Booth carried a black handgun while defendant carried a long BB gun that looked like a rifle. Mr. London, Mr. Booth, and Ms. Lewis were all wearing ski masks and dark clothing or coveralls to "completely cover up." Ms. Jacobs served as the driver in dropping the others off at the Shuff residence and picking them up after the invasion.
Ms. Lewis testified that upon arrival at the Shuff residence, she walked around the side of the house with Mr. London, Mr. Booth, and defendant to see if "anymore activity was going on in the house." Ms. Lewis testified that shortly thereafter, one of them kicked in the front door, and Mr. London, defendant, and she went into the home while Mr. Booth remained on the front porch to serve as a lookout. Ms. Lewis further testified that she remained in the living room, after briefly looking into another bedroom, and attempted to console the grandchildren who were upset. According to Ms. Lewis, defendant and Mr. London went down the hallway where they demanded money from Mr. and Mrs. Shuff. The two men returned shortly thereafter carrying a yellow plastic bag. They exited the house and were eventually picked up by Ms. Jacobs. After leaving the scene, the group went back to Ms. Jacobs' house, and divided up the money. Defendant received $1,000.00.
Defendant testified that Mr. London called him on 27 March 2009 and asked him if he "wanted to make some money[.]" Defendant responded affirmatively and was picked up by Mr. London and Mr. Booth shortly thereafter. Defendant testified that he had been expelled from school, had not been able to find a job, and needed to obtain some money. The three men arrived back at Ms. Jacob's home, at which point the robbery was discussed. According to defendant, he did not know that the plan to obtain money involved a robbery until this discussion took place. Defendant testified that he was assigned the role of waiting outside the home to act as a lookout while the others entered the home to complete the robbery. He also testified that during the planning, Mr. London had a rifle-like BB gun and Mr. Booth had a handgun, but that he was never given a weapon. Defendant testified that during the robbery he remained on the front porch.
On 4 May 2009, defendant was indicted by a grand jury on one count of first degree burglary and one count of robbery with a dangerous weapon. On 4 February 2010, a jury found defendant guilty of both charges. Defendant was found to be a Prior Record Level I for felony sentencing purposes. The trial court consolidated defendant's convictions and sentenced him in the mitigated range to a term of 42 to 60 months imprisonment. Defendant gave timely notice of appeal.
Discussion I.
Defendant argues that the trial court erred in denying his request to instruct the jury on felonious breaking and entering as a lesser included offense of first degree burglary, and misdemeanor assault with a deadly weapon as a lesser included offense of robbery with a dangerous weapon. We disagree.
We review "a trial court's decisions regarding jury instructions de novo." State v. Jenkins, ___ N.C. App. ___, ___, 688 S.E.2d 101, 105 (2010). "It is unquestioned that the trial judge must instruct the jury as to a lesser-included offense of the crime charged, when there is evidence from which the jury could find that the defendant committed the lesser offense." State v. Redfern, 291 N.C. 319, 321, 230 S.E.2d 152, 153 (1976), overruled in part on other grounds by State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993). "However, when the State's evidence is positive as to every element of the crime charged and there is no conflicting evidence relating to any element of the crime charged, the trial court is not required to submit and instruct the jury on any lesser included offense." State v. Boykin, 310 N.C. 118, 121, 310 S.E.2d 315, 317 (1984).
Error in failing to submit the question of [the] defendant's guilt of a lesser degree of the same crime is not cured by a verdict of guilty of the offense charged because it cannot be known whether the jury would have convicted of a lesser degree if the different permissible degrees arising on the evidence had been correctly submitted to the jury.
State v. Poole, 298 N.C. 254, 257, 258 S.E.2d 339, 341-42 (1979).
In order for a defendant to be convicted of first degree burglary, the State must show that there was "(i) the breaking (ii) and entering (iii) in the nighttime (iv) into the dwelling house or sleeping apartment (v) of another (vi) which is actually occupied at the time of the offense (vii) with the intent to commit a felony therein." State v. Singletary, 344 N.C. 95, 101, 472 S.E.2d 895, 899 (1996). Robbery with a dangerous weapon is defined as "an unlawful taking or an attempt to take personal property from the person or in the presence of another, by use or threatened use of a firearm or other dangerous weapon, whereby the life of a person is endangered or threatened." State v. Thomas, 350 N.C. 315, 343, 514 S.E.2d 486, 503, cert. denied, 528 U.S. 1006, 145 L. Ed. 2d 388 (1999); N.C. Gen. Stat. § 14-87 (2009).
As to the lesser included offenses of the crimes charged, the elements of felonious breaking and entering are: (1) the breaking or entering; (2) of any building; and (3) with the intent to commit a felony or larceny. N.C. Gen. Stat. § 14-54(a) (2009). Misdemeanor assault with a deadly weapon pursuant to N.C. Gen. Stat. § 14-33(c)(1) (2009) merely requires that the defendant assault another individual with a deadly weapon.
In the present case, the State's evidence tended to establish that defendant, who was carrying a BB gun that looked like a rifle, and Mr. Booth, who was carrying a pistol, entered the Shuffs' bedroom and robbed them. Defendant, on the other hand, testified that he was not armed, that he served as a lookout, and that he never entered the Shuffs' residence. The jury was instructed that it could find defendant guilty of the crimes charged if it found that defendant acted alone or in concert with the other individuals to burglarize the Shuffs' residence and rob them with a dangerous weapon. (Emphasis added).
Defendant argues that there are doubts as to his culpability under the theory of acting in concert and that he was thereby entitled to jury instructions on the lesser included offenses. Specifically, defendant argues that doubts were raised at trial as to whether he engaged in a common plan with the other perpetrators and whether he had the specific intent to commit robbery with a dangerous weapon. Defendant argues that the jury could have determined that he was unaware of the common plan or scheme until after the robbery occurred. Defendant's argument is without merit.
Defendant does not argue that the trial court erred in instructing the jury on the theory of acting in concert.
[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) (citations and quotation marks omitted), cert. denied, 523 U.S. 1024, 140 L. Ed. 2d 473 (1998).
All of the evidence presented at trial, including defendant's own testimony, established that defendant was aware of the common plan to commit the crimes prior to arriving at the Shuffs' residence; defendant was aware of the fact that weapons would be used to facilitate the robbery; and defendant was informed as to his role in the common plan. Whether defendant was on the front porch unarmed or in the house committing the robbery with the BB gun, the evidence supports the offenses charged and the instructions given as to those offenses. See State v. Jones, 157 N.C. App. 110, 115, 577 S.E.2d 676, 680 (2003) (acknowledging that the specific intent to commit the crimes charged may be shown by demonstrating that the defendant joined in a common plan to commit the crimes, and holding that evidence was sufficient to support an armed robbery charge where the defendant served as a getaway driver). Consequently, "[a]s the State's evidence was sufficient to fully satisfy its burden of proof on each element of [each] greater offense and no evidence was offered to negate those elements, defendant was not entitled to an instruction on the lesser-included offense[s], and the trial court did not err in denying the request." State v. Crawford, 179 N.C. App. 613, 617, 634 S.E.2d 909, 912 (2006).
II.
Defendant argues that he was entitled to a jury instruction on duress. Defendant did not request this instruction; however, we will review the trial court's failure to give the instruction for plain error. Under a plain error standard of review, the defendant must show: "(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).
"In order to successfully invoke the duress defense, a defendant would have to show that his `actions were caused by a reasonable fear that he would suffer immediate death or serious bodily injury if he did not so act.'" State v. Cheek, 351 N.C. 48, 61-62, 520 S.E.2d 545, 553 (1999) (quoting State v. Strickland, 307 N.C. 274, 299, 298 S.E.2d 645, 661 (1983), overruled on other grounds by State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986)). Further, once the coercive influence is removed, the "defendant ha[s] a duty to surrender himself and the stolen goods to the police." State v. Smith, 152 N.C. App. 29, 39-40, 566 S.E.2d 793, 800-01, cert. denied, 356 N.C. 311, 571 S.E.2d 208 (2002).
Defendant argues that a rational fact-finder could have determined that he had a reasonable fear of death or serious bodily injury if he did not accompany the group to the house and stand outside. However, defendant's only justification for his fear was the fact that he was told that another person was previously assaulted after backing out of the plan. No evidence was presented concerning the extent of the injuries allegedly sustained by this third party, and defendant made no assertion that he was actually threatened by any person before or after the robbery. Furthermore, when asked by his trial counsel why he decided to participate in the robbery, he simply stated that "[Mr. London's] just got his way of talking people into things. He really does. He can talk anybody into anything." Defendant went on to say that he was scared of what the group would do to him if he said no, but made no reference to any specific threats. Moreover, defendant testified that he agreed to participate because he did not have a job or an education and "needed a way to make a little money." Defendant fails to show that his actions were motivated by a reasonable fear that he would suffer immediate death or serious bodily injury if he did not participate in the robbery.
Defendant also fails to satisfy the second prong of the test set out in Bishop requiring him to surrender himself and the stolen goods to the police after the coercive force was removed. Defendant argues that he was still under the coercion of Mr. London up until his 28 April 2009 arrest and that he was pressured to lie for Mr. London. However, defendant had no communication with Mr. London after the night of the crime, and made no mention of feeling threatened after committing the robbery. Further, defendant never turned himself in to police and spent the stolen money on clothes for himself, despite having a full month between committing the crime and being arrested. In sum, we find no error, much less plain error, in the trial court's failure to instruct the jury on duress.
Conclusion
We hold that: (1) defendant was not entitled to jury instructions on lesser included offenses as the evidence presented satisfied the State's burden of proof for each element of the greater offenses and no evidence was offered to negate those elements, and (2) defendant was not entitled to a jury instruction on duress as he did not have a reasonable fear of immediate death or serious bodily injury, and did not turn himself or the stolen money in to the police after the robbery despite a month passing before his arrest. Consequently, we find no error in defendant's trial.
No Error.
Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).