NORTH CAROLINA COURT OF APPEALS. Filed: 5 June STATE OF NORTH CAROLINA Guilford County v. No. 04 CRS 83182

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1 An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 5 June 2007 STATE OF NORTH CAROLINA Guilford County v. No. 04 CRS DARIS LAMONT SPINKS On writ of certiorari from judgment entered 3 February 2005 by Judge William Z. Wood, Jr., in Guilford County Superior Court. Heard in the Court of Appeals 4 June Attorney General Roy Cooper, by Assistant Attorney General LaShawn L. Strange, for the State. Irving Joyner, for defendant-appellant. LEVINSON, Judge. Daris Lamont Spinks (defendant) was found guilty by a jury of robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. The trial court consolidated his offenses for judgment and imposed an active prison sentence of 61 to 83 months. By order entered 12 January 2006, we allowed defendant s petition for writ of certiorari for the purpose of reviewing the judgment. The State s evidence tended to show the following: Two men robbed a Bojangles restaurant on High Point Road in Greensboro,

2 -2- North Carolina on the afternoon of 9 June The restaurant s manager, Douglas Hobgood, testified that he was standing behind the front counter when two young men wearing masks, a do-rag, or a stocking cap came into the restaurant. One of the men brandished a handgun at an employee, Tyrone Morris, who was standing across the counter from Hobgood. The second man jumped the counter and ordered Hobgood to open the cash registers at the front counter and drive-through window. After taking approximately $300 from the two registers, the two men ran out of the restaurant. Morris testified that he had completed his work shift and was purchasing his employee meal at the time of the robbery on 9 June While waiting for his meal, he looked outside and saw two short guys in all black walking down the sidewalk toward Bojangles. Morris recognized one of the men as defendant, with whom he had attended Allen Middle School from 1995 to As the two men reached the front entrance, Morris took like two glances at [defendant] and made sure it was him. He then saw defendant putting his do-rag over his face and realized that the men were about to rob the store. Once inside the store, defendant jumped over the counter and told Hobgood to open the registers while his associate held a gun on Morris. Morris described the gun as small, rusty looking and sort of like a.22. After the robbery, the two men ran from the restaurant. Morris identified defendant to police as one of the robbers. He selected defendant s photograph from a lineup and identified him in court for the jury.

3 -3- Greensboro Police Detective Charles Isom testified that he interviewed defendant on 17 June 2004, after Morris identified him in the photographic lineup. After initially denying involvement in the robbery, defendant told Isom that two friends named Zeek and Young un proposed doing a lick at Bojangles while the three men were driving in Zeek s brother s car. Young un said he had it all mapped out and would arrive at the restaurant after the lunchtime rush, when it was just going to be the employees in there. Defendant told Isom that they planned it out on the way[,] and gave the following verbal account of the theft: [Defendant] said, I was going to go in with Young un. I was just going to stand there and watch out, because Zeek knew that... I [had] never done it before. Young un was the stick-up one. [Defendant] said,... I pulled a black dorag down over my face. [ ]Young un[ ] walked in first. I walked in behind. He said, Yo. This ain t no game. He jumped over the counter. I told the other employees don t move; don t do nothing stupid. I had my hand up under my shirt like I had something.... The manager opened the register. [ ]Young un[ ] grabbed the cash.... [T]hey moved over to the cash the drive thru.... [H]e jumped back over the counter. We ran down the sidewalk....[ ] Defendant also signed a written statement describing his participation in the incident as follows:... Zeek and Young un came and picked me up at about 1:25 to 1: In the car, Young un was telling me about this job where we could make some money,... [b]ut I said, you know,... [j]ust take me home. Got home. My grandmother was getting on my case about not having a job.... So I called Zeek and told him yo, I am down.

4 -4- Let s do it. He came and got me about 2:50 to 3 o clock.... Young un was telling me yeah, I got a home-boy that work in Bojangles Young un walked in first, I was behind, I pulled my mask down, told the people it s not a game, get down, don t move. Young un jumped over the the thing and told the boss man to open the drawer. He took the money and said let s go.... So then we was gone, running down the sidewalk; then we crossed the street, and went my own way.... Isom later identified Zeek as defendant s neighbor, Ezekiel Bart Lenoir. Defendant testified that he was not involved in the Bojangles robbery and knew nothing about it. On the afternoon of 9 June 2004, he asked Zeek for a ride from his grandmother s house to his 3:30 p.m. appointment with his probation officer. Zeek picked defendant up just before 3:00 p.m. After stopping to see Zeek s brother at his workplace, they drove directly to the probation office in downtown Greensboro. Defendant signed in at the probation office at 3:30 p.m., and introduced a copy of the sign-in sheet into evidence at trial. Defendant told the jury that he did not go to the Bojangles on High Point Road or see Young un at any time on 9 June When asked about his incriminating statement to Isom, he explained that it was very frightening to be alone in an interrogation room with a detective accusing him of robbery. Isom told defendant during the interview that he would talk to the D.A. if defendant cooperated. Because defendant was scared and just wanted to go home[,] he decided to [t]ell the man what he want[ed] to hear.

5 -5- On appeal, defendant first claims that the trial court committed plain error in failing to instruct the jury on common law robbery as a lesser-included offense of robbery with a dangerous weapon. A defendant is entitled to a lesser-included offense instruction if the record contains affirmative evidence that would allow a reasonable juror to find beyond a reasonable doubt that he committed the lesser offense, rather than the charged offense. State v. Kyle, 333 N.C. 687, 703, 430 S.E.2d 412, 421 (1993); State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981). Accordingly, where "the State presents evidence of every element of the offense, and there is no evidence to negate these elements other than the defendant's denial that he committed the offense, then no lesser-included offense need be submitted. State v. Mangum, 158 N.C. App. 187, 197, 580 S.E.2d 750, 757 (2003). Moreover, the possibility that the jury might disbelieve some portion of the State s proffer is insufficient to warrant an instruction on a lesser-included offense. State v. Franks, 74 N.C. App. 661, 662, 329 S.E.2d 717, 718 (1985). Common law robbery is a lesser-included offense of robbery with a dangerous weapon. State v. Frazier, 150 N.C. App. 416, 419, 562 S.E.2d 910, 913 (2002). Both offenses entail the use of violence or the threat of violence to effect a taking of property from the person or presence of another. See Id.; State v. White, 142 N.C. App. 201, 204, 542 S.E.2d 265, 267 (2001). The distinction between the lesser and greater offenses is that common law robbery involves the use of violence or fear generally, and

6 -6- robbery with a dangerous weapon involves the use of a dangerous weapon to create this violence or fear. State v. Bartley, 156 N.C. App. 490, 498, 577 S.E.2d 319, 324 (2003) (citations omitted). Accordingly, the trial judge is not required to instruct on common law robbery when the defendant is indicted for armed robbery if the uncontradicted evidence indicates that the robbery was perpetrated by the use or threatened use of what appeared to be a dangerous weapon. State v. Porter, 303 N.C. 680, , 281 S.E.2d 377, 382 (1981). A handgun is a deadly weapon as a matter of law. State v. Reives, 29 N.C. App. 11, 12, 222 S.E.2d 727, 728 (1976). Defendant concedes that he did not request jury instructions on the lesser-included offenses of common law robbery and conspiracy to commit common law robbery; nor did he object to the jury instructions as given. Accordingly, we review the lack of lesser-included offense instructions only for plain error. See N.C.R. App. P. 10(c)(4). To find plain error in this context, the appellate court must be convinced that absent the error the jury probably would have reached a different verdict. In other words, the appellate court must determine that the error in question 'tilted the scales' and caused the jury to reach its verdict convicting the defendant. State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986) (citations omitted). We find no plain error here. The State s eyewitnesses agreed that one of the two perpetrators brandished a handgun to accomplish the robbery. Morris described the gun s appearance and specified that defendant s accomplice held the gun while defendant jumped

7 -7- over the counter and took the money from the registers. By joining with another person to commit this criminal act, defendant was responsible for his accomplice s use of the handgun in furtherance thereof. See generally State v. Erlewine, 328 N.C. 626, 637, 403 S.E.2d 280, 286 (1991). In his out-of-court statement to Isom, defendant confirmed a weapon was used, stating Young un was the stick-up one. No evidence supported a finding that defendant acted independently from the gunman in taking the money from the cash registers, inasmuch as they entered and left the restaurant together. And in his own testimony, defendant did not offer an opposing account of a robbery committed without the use of the handgun. Rather, he claimed he was not involved in the incident. His testimony thus did not support an instruction on common law robbery. Assuming, arguendo, that defendant s out-of-court statements supported an instruction on common law robbery, we hold the want of this instruction did not have a probable effect on the jury s verdict, so as to amount to plain error under Rule 10(c). In applying the plain error standard, our high courts have emphasized that 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. State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378 (1983) (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203, 212 (1977)). Here, both eyewitnesses saw the robber display a handgun. Morris provided a description of the gun. Defendant told the jury that he did not participate in

8 -8- the crime and did not go to the Bojangles or see Young un on the day in question - testimony the jury clearly rejected. This assignment of error is overruled. Defendant also assigns plain error to the court s failure to instruct the jury on conspiracy to commit common law robbery as a lesser-included offense of conspiracy to commit robbery with a dangerous weapon. He contends that the only direct evidence of a conspiracy was his statement to Isom, which acknowledged an agreement to rob the Bonangle[ ]s, but did not show [an agreement] to use a dangerous weapon to commit that offense. Because the evidence supported an instruction on common law robbery, defendant asserts the jury could have found a conspiracy to commit this lesser offense. As discussed above, in order to show plain error based on the failure to instruct the jury on the offense of conspiracy to commit common law robbery..., defendant must [show] not only that there was error, but that absent the error, the jury probably would have reached a different result. State v. Carter, 177 N.C. App. 539, 543, 629 S.E.2d 332, 336, aff d per curiam, 361 N.C. 108, 637 S.E.2d 537 (2006). 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: A mutual, implied understanding is sufficient[.] State v. Johnson, 164 N.C. App. 1, 17, 595 S.E.2d 176, 185 (2004) (quoting State v. Bindyke, 288 N.C. 608, , 220 S.E.2d 521, 526 (1975)). Moreover, a person is guilty of

9 -9- conspiracy if he commits an overt act with knowledge of the conspiracy... [or] tacitly consents to the object of a conspiracy and goes along with the other conspirators[.] Id. at 18, 595 S.E.2d at 186 (quoting State v. Carey, 285 N.C. 497, , 206 S.E.2d 213, 218 (1974)). We find no affirmative evidence of an agreement limited in scope to the taking of money from Bojangles by violence or a threat of violence but without the use of a dangerous weapon. The State s eyewitnesses depicted defendant as stealing the money from the cash registers while his accomplice threatened Morris with a handgun. In his testimony, defendant presented an alibi and claimed he had no involvement whatsoever in the incident. The conflict created by these competing accounts does not support a finding of conspiracy to commit common law robbery. Compare Johnson, 164 N.C. App. at 17, 595 S.E.2d at 185 (finding no evidence of a conspiracy to commit common law robbery where defendant either brandished a gun during the robbery or was not present), with Carter, 177 N.C. App. at 543, 629 S.E.2d at 336 (requiring instruction on conspiracy to commit common law robbery where the conflicting evidence regarding whether the gun used was real or fake created a jury question on the agreement between [the co-conspirators]... as to whether or not the gun Oakley was to use was in fact real ). Defendant s statements to Isom did not tend to show a conspiracy to commit only common law robbery, rather than robbery

10 -10- with a dangerous weapon. According to Isom, defendant described the planning of the robbery as follows:... [Defendant] said, I was going to go in with Young un. I was just going to stand there and watch out, because Zeek knew that I never knew how to do it before. That I never done it before. Young un was the stick-up one. (emphasis added). Defendant s written statement referred only generally to Young un s proposal of a job where we could make some money. As noted above, we do not believe that defendant s accounts of the actual theft supported a verdict of common law robbery. See Bartley, 156 N.C. App. at , 577 S.E.2d at 324. Nor did they affirmatively contradict the State s evidence that Young un brandished a handgun at Morris. As discussed above, even assuming error by the court in failing to instruct the jury on the lesser-included conspiracy, we find no realistic likelihood that the error had an impact on the verdict returned in this case. Accordingly, because defendant has not shown plain error under Rule 10(c)(4), we overrule this assignment of error. The record on appeal includes additional assignments of error which are not addressed in defendant s brief to this Court. By Rule, we deem them abandoned. N.C.R. App. P. 28(b)(6). No error. Judges MCCULLOUGH and STEELMAN concur. Report per Rule 30(e).