NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 4 January Appeal by defendant from judgment entered 4 December 2009 by

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1 An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA NORTH CAROLINA COURT OF APPEALS Filed: 4 January 2011 STATE OF NORTH CAROLINA v. Guilford County No. 09 CRS TAURENCE LEE JONES Appeal by defendant from judgment entered 4 December 2009 by Judge A. Robinson Hassell in Guilford County Superior Court. Heard in the Court of Appeals 20 December Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Elizabeth N. Strickland, for the State. Daniel F. Read for the defendant-appellant. JACKSON, Judge. Taurence Lee Jones ( defendant ) appeals his 4 December 2009 conviction of robbery with a dangerous weapon. For the reasons stated herein, we hold no error. On 10 April 2009, Christopher Watt ( Watt ) and Keith Baldwin ( Baldwin ) were working at the Rite Aid Pharmacy located on East Bessemer Avenue in Greensboro ( the Rite Aid ). At approximately 11:30 p.m., a man wearing a mask and carrying what looked like a shotgun entered the Rite Aid. The man pulled the shotgun, cocked it, and pointed it straight at Mr. Baldwin[,] who was behind the counter. The man told Baldwin to [e]mpty the register and tossed

2 -2- a black mesh bag onto the counter. After Baldwin emptied the register, the robber told Baldwin and Watt to empty the safe. Watt and Baldwin walked to the manager s office, where the safe was located, and the robber followed with the shotgun pointed at Watt. Watt opened the safe and emptied [it] calmly, as quickly as [he] could while the robber point[ed] the gun at [his] head, counting down, and saying, Hurry up; hurry up. The robber then grabbed the mesh bag, told Watt and Baldwin not to follow him, and ran out of the Rite Aid. Watt called 911. Watt provided a description of the robber and advised that the robber had fled on foot. Watt described the robber as approximately six-foot-two and wearing a white mask with a skull on it, blue jeans, and a gray-and-black-striped hoodie. Officer Jeff Kropelnicki ( Officer Kropelnicki ) of the Greensboro Police Department responded to the 911 call. Officer Kropelnicki was on patrol in the area and arrived at the Rite Aid approximately three minutes after the 911 call. Watt gave Officer Kropelnicki a description of the robber. Officer Kropelnicki then relayed the information to other officers in the area. It was estimated that $4, was taken from the store. 1 Officer Dwayne Diaz ( Officer Diaz ) and Officer M.A. McPhatter of the Greensboro Police Department were working off-duty at the Riverwalk Apartment complex ( the apartment complex ) on the evening of 10 April The two officers heard through their police radios about the Rite Aid robbery. Because the apartment 1 The actual amount of money recovered was $4,

3 -3- complex is located across East Bessemer Avenue from the Rite Aid, the officers began circulating through the area looking for the robber as described over the police radio. After driving through some of the dark alleys near the Rite Aid and failing to find a suspect, the officers returned to the apartment complex. Officer Diaz then saw a man, later identified as defendant, emerge from within the apartments wearing dark clothing. Defendant was in the vicinity of the apartment located at 1001 Palmetto Drive ( apartment 1001 ), an apartment Officer Diaz knew to be vacant. The officers approached defendant and asked if they could speak with him. Defendant told the officers that he was coming from his girlfriend s house but could not give them the address. Officer Diaz noticed that defendant was sweating. According to Officer Diaz, I remember sticking my hand out and feeling his heart, and his heart was beating really fast and really hard. Defendant wore a hoodie with a skull mask attached to it and dark jeans. Officer Jeremy Johnson ( Officer Johnson ) also responded to the 911 call. He was instructed to start searching for a weapon and money in the general vicinity of apartment Officer Johnson discovered a blue latex glove on top of a holly bush near apartment He then began searching around the bush and located a sawed-off shotgun. Officer Johnson then found the other blue glove near the shotgun and a bag of money under the bush. He observed the initials T and J on one side of the shotgun and MAMA on the other side. After a crime scene investigator took

4 -4- photographs of the gun, Officer Johnson unloaded the gun. There was one round of ammunition located within the chamber of the gun and one round located within the slide. At his trial, defendant testified on his own behalf. Defendant testified that he was a senior at North Carolina A&T State University ( A&T ) and also worked at Pinnacle Lighting. Defendant stated that on 10 April 2009, he had worked until approximately 11:15 p.m. and then had gone to his then-girlfriend s dorm room on the A&T campus. Defendant testified that he stayed at his girlfriend s dorm room only a few minutes before another man arrived. Defendant became upset when the other man showed up, and he called his cousin, Dewaun Henry ( Henry ), to pick him up. According to defendant, he told his cousin to pick him up at the Riverwalk Apartments, and he began walking to the apartments to meet his cousin. Defendant testified that he had walked about two blocks before he was stopped by the officers. George James, Jr., defendant s supervisor, also testified on defendant s behalf. He confirmed that defendant had worked until after 11:00 p.m. on 10 April Henry, defendant s cousin and roommate, testified that he had worked with defendant on the evening in question. He stated that he had dropped defendant off near the infirmary on A&T s campus and remained in the area in order to give defendant a ride home. Henry testified that, approximately ten minutes after he dropped defendant off, defendant called, sounded mad, and asked Henry to

5 -5- meet him at the Riverwalk Apartments. Henry drove through the area but did not see defendant. However, he did see police activity. On 2 December 2009, a jury found defendant guilty of robbery with a dangerous weapon. The judgment was entered on 4 December The trial court found that mitigating factors existed and sentenced defendant to a mitigated sentence of forty-eight to sixty-seven months. Defendant appeals. Defendant first argues that the trial court erred by refusing to instruct the jury on common law robbery as the State presented no evidence that the gun found was functional. We disagree. Our Rules of Appellate Procedure provide that, [i]n order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion[.] N.C.R. App. P. 10(a)(1) (2009). Accordingly, when a defendant neither objects to the jury instructions given by a trial court nor requests an instruction on a lesser included offense, he has waived appellate review of that issue. State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993) (citing State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983)). Nonetheless, alleged errors with respect to jury instructions, even absent an objection, are reviewable pursuant to the plain error standard. See N.C.R. App. P. 10(a)(4) (2009) ( 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

6 -6- distinctly contended to amount to plain error. ). In order to constitute plain error, the error in the trial court s jury instructions must be so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached. Collins, 334 N.C. at 62, 431 S.E.2d at 193 (citations omitted). In the instant case, defendant failed to object to the jury instructions when given, even after the trial court directly asked him whether he had any objection, amendment, correction, [or] additions to the instructions previously given[.] However, because the trial court s failure to give an instruction as to common law robbery was not error, it also cannot rise to the level of plain error. North Carolina General Statutes, section sets forth the elements of robbery with a dangerous weapon: (1) the unlawful taking or attempted taking of personal property from another; (2) the possession, use or threatened use of firearms or other dangerous weapon, implement or means ; and (3) danger or threat to the life of the victim. State v. Joyner, 295 N.C. 55, 63, 243 S.E.2d 367, 373 (1978) (citation omitted). The essential difference between armed robbery and common law robbery is that the former is accomplished by the use or threatened use of a firearm or other dangerous weapon whereby the life of a person is endangered or threatened. State v. Lee, 282 N.C. 566, 569, 193 S.E.2d 705, 707 (1973) (citations omitted). The question in an armed robbery case is whether a person s life was in fact endangered or

7 -7- threatened by defendant s possession, use or threatened use of a dangerous weapon, not whether the victim was scared or in fear of his life. Joyner, 295 N.C. at 63, 243 S.E.2d at 373 (citation omitted). In a prosecution for armed robbery the court is not required to submit the lesser included offense of common law robbery unless there is evidence of defendant s guilt of that crime. If the State s evidence shows an armed robbery as charged in the indictment and there is no conflicting evidence relating to the elements of the crime charged an instruction on common law robbery is not required. Lee, 282 N.C. at , 193 S.E.2d at 707 (emphasis in original) (citation omitted). When a person perpetrates a robbery by brandishing an instrument which appears to be a firearm, or other dangerous weapon, in the absence of any evidence to the contrary, the law will presume the instrument to be what his conduct represents it to be a firearm or other dangerous weapon. State v. Thompson, 297 N.C. 285, 289, 254 S.E.2d 526, 528 (1979). Here, the State presented eyewitness testimony that the suspect used a sawed-off shotgun to perpetrate the robbery. Watt specifically testified that the robber cocked the gun and pointed it at Baldwin and later pointed it at Watt s head. When police recovered a shotgun, which bore the initials T and J, they discovered one round of ammunition in the chamber of the shotgun and another round located within the slide. Neither defendant nor the State presented any evidence to contradict the State s presumption that the gun was functional. Accordingly, the trial court was not required to instruct the jury as to the lesser

8 -8- included offense of common law robbery, and it did not err in failing to do so. Defendant next argues that the trial court erred in denying his motion to dismiss as the State failed to present sufficient evidence that he was the perpetrator of the robbery or that the lives of Watt and Baldwin actually were endangered. We disagree. In reviewing the denial of a motion to dismiss, this Court must determine whether there is substantial evidence -- either direct, circumstantial, or both -- to support a finding that the crime charged has been committed and that defendant was the perpetrator. State v. Clark, 325 N.C. 677, 682, 386 S.E.2d 191, 194 (1989) (citation omitted). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982) (quoting State v. Smith, 300 N.C. 71, 78 79, 265 S.E.2d 164, 169 (1980)). The evidence is considered in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from the evidence. Clark, 325 N.C. at 682, 386 S.E.2d at 194 (citation omitted). The defendant s evidence is not to be taken into consideration unless it is favorable to the State. Earnhardt, 307 N.C. at 67, 296 S.E.2d at 653. As discussed supra, North Carolina General Statutes, section sets forth the elements of robbery with a dangerous weapon, which are (1) the unlawful taking or attempted taking of personal property from another; (2) the possession, use or threatened use of

9 -9- firearms or other dangerous weapon, implement or means ; and (3) danger or threat to the life of the victim. Joyner, 295 N.C. at 63, 243 S.E.2d at 373 (citation omitted). Defendant challenges only the third element, as well as his identity as the perpetrator. In the case sub judice, the State presented evidence tending to show that the robber was wearing a gray-and-black-striped hoodie with an attached white skull mask and that he had filled a black mesh bag with money from the Rite Aid. Approximately ten minutes after the 911 call went out, defendant was seen at the Riverwalk Apartments. The apartment complex is located across the street from the Rite Aid. Police observed defendant emerge from an area near a vacant apartment. Defendant was wearing a hoodie with a white skull mask attached. When the officers approached defendant, he was sweating and his heart was beating really fast and really hard. Latex gloves, a shotgun with the initials T and J on it, and a black mesh bag containing money were located in a bush near the vacant apartment. Defendant s name is Taurence Jones, and therefore, his initials are T.J. In addition, the evidence showed that there were two shells in the shotgun and that the robber had pointed the gun at both Baldwin and Watt during the robbery. Defendant s evidence that he was at work and then at his girlfriend s house during the robbery does not affect whether the State carried its burden to present substantial evidence. See Earnhardt, supra. Considering the evidence in the light most favorable to the State, we conclude that the State presented substantial evidence as to each element of robbery with

10 -10- a dangerous weapon and as to defendant s being the perpetrator of that offense. Accordingly, the trial court did not err in denying defendant s motion to dismiss. No error. Chief Judge MARTIN and Judge ELMORE concur. Report per Rule 30(e). Judge JACKSON concurred prior to December 31, 2010.