State v. More ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-139
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
STATE OF NORTH CAROLINA
v. Wake County
No. 12 CRS 223968
GERALD ALONSO MORE
Appeal by Defendant from judgment entered 6 November 2013
by Judge Paul G. Gessner in Superior Court, Wake County. Heard
in the Court of Appeals 12 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Scott K. Beaver, for the State.
Appellate Defender Staples S. Hughes, by Andrew DeSimone,
for Defendant.
McGEE, Chief Judge.
Gerald Alonso More (“Defendant”) appeals his conviction of
robbery with a dangerous weapon, contending that the trial
court’s partial denial of his requested jury instructions
amounts to reversible error. We disagree.
I. Background
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Defendant entered a Kroger’s grocery store in Raleigh on 21
October 2012. He proceeded to a check-out line, and when the
cashier, Matthew Wells (“Mr. Wells”), opened the register,
Defendant reached across Mr. Well’s check-out conveyor belt.
Defendant held in his right hand what appeared to be a butcher
knife, and he removed money from the register with his left
hand. Defendant’s actions were recorded on the store’s security
camera, and Defendant conceded at trial that he had committed
common law robbery. At issue for the trial court was whether
Defendant’s actions amounted to robbery with a dangerous weapon.
Specifically, Defendant asserted that the knife was in fact a
plastic toy and not a real knife. An actual knife, toy or
otherwise, was never recovered by the police.
Defendant was indicted on 7 January 2013 for robbery with a
dangerous weapon. During the charge conference, Defendant
requested in writing that the trial court instruct the jury on
the charge of robbery with a dangerous weapon using language
mirroring the North Carolina Pattern Jury Instructions, as set
out below. Defendant also requested language not found in the
Pattern Jury instructions, as set out below in bold type:
Sixth, that the defendant had a dangerous
weapon in his possession at the time he
obtained the [money] (or that it reasonably
appeared to [Mr. Wells] that a dangerous
weapon was being used, in which case you may
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infer that the instrument was what the
Defendant’s conduct represented it to be,
BUT ARE NOT REQUIRED TO DO SO)[.] A
dangerous weapon is a weapon which is likely
to cause death or serious bodily injury.
And Seventh, that the [D]efendant obtained
the [money] by endangering or threatening
the life of Mr. Wells with the dangerous
weapon. In deciding whether or not Mr.
Well’s life was endangered or threatened,
you may consider the manner in which the
weapon was used.
(emphasis added). The actual instructions on elements six and
seven of robbery with a dangerous weapon given to the jury were
essentially identical to those requested by Defendant, except
for the bolded language therein, which the trial court declined
to include in its charge to the jury. A jury subsequently found
Defendant guilty of robbery with a dangerous weapon on 6
November 2013. Defendant gave notice of appeal in open court.
On appeal, Defendant contends that the trial court’s partial
denial of his requested jury instructions was in error.
II. Analysis
A. Standard of Review
This Court reviews assignments of error challenging a trial
court's decisions regarding jury instructions de novo. State v.
Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009).
B. Element Six of the Jury Instructions
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Defendant assigns error to the trial court’s partial denial
of his requested jury instruction for element six of robbery
with a dangerous weapon. On this element, the trial court
instructed the jury to determine whether
Defendant had a dangerous weapon in his
possession at the time he obtained the
[money], or that it reasonably appeared to
[Mr. Wells] that a dangerous weapon was
being used, in which case [the jury] may
infer that the said instrument was what the
Defendant’s conduct represented it to be. A
dangerous weapon is a weapon which is likely
to cause death or serious bodily injury.
(emphasis added). However, in addition to the instruction that
the jury “may infer” that Defendant had a dangerous weapon,
Defendant also requested an instruction stating that it was “not
required to do so.” The trial court denied Defendant’s request.
Defendant contends that omitting this additional permissive
language in element six amounts to reversible error because the
sole use of “may” in the jury instruction purportedly could
connote a mandatory, rather than permissive, inference that
Defendant used a dangerous weapon during the robbery.
In State v. Wilburn, this Court was presented with an
identical argument from the defendant, also appealing his
conviction of robbery with a dangerous weapon. Wilburn, 164
N.C. App. 601, 596 S.E.2d 473, slip op. at 6-8 (2004)
(unpublished). In Wilburn, on an appeal challenging jury
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instructions that were essentially identical to those given in
the case sub judice, this Court held that “[t]he [trial] court's
use of permissive language -- i.e., the jury ‘may infer’ that
the object was a firearm -- properly denoted that the jury was
permitted, but not required, to find defendant possessed a
[dangerous weapon] . . . during the robbery.” Id. at 7–8.
On this issue, the present case is not distinguishable from
Wilburn. When Defendant robbed the Kroger, he wielded what
reasonably could have appeared to Mr. Wells to be a large
butcher’s knife. Defendant held it near Mr. Wells while he
removed money from Mr. Well’s register, aiding his carrying out
of the robbery. As such, just as in Wilburn, this allowed the
jury to make the permissible inference that this knife was, in
fact, a real and dangerous weapon. See id. The trial court
instructed the jury that it “may infer that the [knife] was what
the Defendant’s conduct represented it to be,” and it appears
that the jury did just that. “We find no error or prejudice
here.” Id. at 8.
C. Element Seven of the Jury Instructions
Defendant next contends that the trial court erred in its
partial denial of Defendant’s requested jury instruction for
element seven of robbery with a dangerous weapon. On this
element, the trial court instructed the jury to determine
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whether “Defendant obtained the [money] by endangering or
threatening the life of [Mr. Wells] with the dangerous weapon.”
However, during the charge conference, Defendant requested that
this instruction end with the following: “In deciding whether or
not Mr. Well’s life was endangered or threatened, [the jury] may
consider the manner in which the weapon was used.” The trial
court also denied this request from Defendant, which Defendant
contends amounts to reversible error.
The additional language requested by Defendant for element
seven focused on the knife’s manner of use to inform whether Mr.
Well’s life was threatened or endangered. On its face, this
language is mere surplusage. The previous sentence in
Defendant’s requested jury instruction on element seven, which
also was stated to the jury at trial, instructed the jury to
determine whether Defendant “endanger[ed] or threaten[ed] the
life of Mr. Wells with the dangerous weapon.” This instruction
necessarily directed the jury to consider the manner in which
the weapon was used.
However, the question Defendant presents to this Court is
whether “the trial court erred by denying [Defendant’s] request
to instruct the jury that[,] in determining whether the knife
was a dangerous weapon[,] it could consider the manner in which
the knife was used.” (emphasis added). In other words,
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Defendant presents us with an appeal that purportedly arises
from the denial of his requested jury instruction on element
seven of robbery with a dangerous weapon. Yet Defendant’s
argument on this point is entirely within the bounds of element
six of the same charge, which instructed the jury to find
whether Defendant, in fact, used a dangerous weapon during the
robbery. Even Defendant’s trial counsel acknowledged that the
question of whether or not the knife was a dangerous weapon
would be more appropriately addressed in element six of the jury
instructions.
As such, while Defendant’s appeal is proper, the argument
he presents to us has not been properly raised before this
Court, and his argument could only be reviewed for plain error.
See N.C.R. App. P. 10(a)(2) (“A party may not make any portion
of the jury charge or omission therefrom the basis of an issue
presented on appeal unless the party objects thereto before the
jury retires[.]”). However, Defendant does not allege plain
error in his brief. “Where a defendant fails specifically and
distinctly to allege plain error, the defendant waives his right
to have the issues reviewed for plain error.” State v. Ferebee,
177 N.C. App. 785, 789, 630 S.E.2d 460, 463 (2006) (citing State
v. Forrest, 164 N.C. App. 272, 277, 596 S.E.2d 22, 25–26).
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Therefore, Defendant has provided this Court with no grounds on
which to review this argument further.
No error.
Judges BRYANT and STROUD concur.
Report per Rule 30(e).