State v. Lipford ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-708
NORTH CAROLINA COURT OF APPEALS
Filed: 4 March 2014
STATE OF NORTH CAROLINA
v. Caldwell County
No. 10 CRS 053142
10 CRS 053149
10 CRS 053337
10 CRS 053340
DOUGLAS DURANT LIPFORD
Appeal by Defendant from judgments entered 14 August 2012
by Judge Nathaniel J. Poovey in Caldwell County Superior Court.
Heard in the Court of Appeals 4 November 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Thomas O. Lawton III, for the State.
M. Alexander Charns, for Defendant.
DILLON, Judge.
Douglas D. Lipford (“Defendant”) appeals from judgments
entered convicting Defendant of two counts of robbery with a
dangerous weapon and two counts of conspiracy to commit robbery
with a dangerous weapon, challenging the jury instructions and
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alleging his trial counsel was ineffective. We conclude there
was no reversible error at trial.
The evidence of record tends to show the following: In the
fall of 2010, there were a string of robberies involving a
number of retail establishments, including, inter alia, a Dollar
General store and a Domino’s pizza location, in Lenoir, North
Carolina. On 26 October 2010, Lenoir Police arrested Latanya
Nicole Taylor on an unrelated drug charge, and she ultimately
implicated Defendant, who had been her boyfriend, and a third
person, in the robberies. Ten eye-witnesses to the various
robberies testified that Defendant had a firearm, nine of whom
said the gun was a handgun. However, Ms. Taylor – who was only
present at the robberies at the Dollar General and at the
Domino’s - said, with regard to the incident at the Dollar
General, that Defendant was carrying “[a] BB gun[.]”
On 6 December 2010, Defendant was indicted on seven counts
of conspiracy to commit robbery with a dangerous weapon, four
counts of robbery with a dangerous weapon, and one count of
assault by pointing a gun. Defendant’s case came on for trial,
and several of the charges were dismissed during the course
thereof. After deliberating for over eight hours on the
remaining charges, the jury deadlocked on two counts of robbery
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with a dangerous weapon; however, the jury found Defendant
guilty of two counts of conspiracy to commit robbery with a
firearm, arising out of the incidents at the Dollar General and
the Domino’s. The jury also found Defendant guilty of two
counts of robbery with a firearm, arising out of incidents at
two other retail establishments. The trial court entered
judgments consistent with the jury’s verdicts, sentencing
Defendant to terms of incarceration with respect to each of the
four convictions, with the sentences to run consecutively. From
these judgments, Defendant appeals.
I: Jury Instruction: Lesser Included Offense
In Defendant’s first argument, he contends the trial court
committed plain error by failing to instruct the jury on common
law robbery and conspiracy to commit common law robbery as
lesser included offenses, based on Ms. Taylor’s testimony that a
BB gun – and not a “dangerous weapon” - was used in at least
some of the incidents. We dismiss this issue, as Defendant
invited error.
“An instruction on a lesser-included offense must be given
only if the evidence would permit the jury rationally to find
defendant guilty of the lesser offense and to acquit him of the
greater.” State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767,
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771 (2002). The test for whether to give a jury instruction on
a lesser-included offense “is the presence, or absence, of any
evidence in the record which might convince a rational trier of
fact to convict the defendant of a less grievous offense.”
State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981)
(citation omitted).
In this case, two of Defendant’s four convictions were for
robbery with a firearm. “The critical difference between armed
robbery [under N.C. Gen. Stat. § 14-87(a)] and common law
robbery is that the former is accomplished by the use or
threatened use of a [firearm or other] dangerous weapon,” while
“[t]he use or threatened use of a [firearm or other] dangerous
weapon is not an essential element of common law robbery.”
State v. Peacock, 313 N.C. 554, 562, 330 S.E.2d 190, 195 (1985).
Defendant was also convicted of two counts of conspiracy to
commit robbery with a firearm. “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.”
State v. Tabron, 147 N.C. App. 303, 306, 556 S.E.2d 584, 586
(2001), disc. review improvidently allowed, 356 N.C. 122, 564
S.E.2d 881 (2002) (citation and quotation marks omitted). “To
constitute a conspiracy it is not necessary that the parties
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should have come together and agreed in express terms to unite
for a common object: A mutual, implied understanding is
sufficient, so far as the combination or conspiracy is
concerned, to constitute the offense.” State v. Bindyke, 288
N.C. 608, 615-16, 220 S.E.2d 521, 526 (1975) (emphasis in
original). This Court has held that when a defendant is charged
with conspiracy to commit armed robbery, and the evidence of the
firearm’s operability is conflicting, the trial court should
also instruct the jury on conspiracy to commit common law
robbery. State v. Carter, 177 N.C. App. 539, 541, 629 S.E.2d
332, 335, aff’d per curiam, 361 N.C. 108, 637 S.E.2d 537 (2006)
(holding the trial court committed plain error by failing to
instruct the jury on the offense of conspiracy to commit common
law robbery on conflicting evidence regarding whether the gun
“was real or fake[,]” and reversing the defendant’s conviction
and remanding for a new trial); but see State v. Lawrence, 365
N.C. 506, 519, 723 S.E.2d 326, 335 (2012) (stating that “the
trial court’s charge on conspiracy to commit robbery with a
dangerous weapon was erroneous,” because the instruction
“erroneously omitted the element that the weapon must have been
used to endanger or threaten the life of the victim[,]” but
holding that the error in the instruction did not constitute
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plain error, because “[i]n light of the overwhelming and
uncontroverted evidence, [the] defendant cannot show that,
absent the error, the jury probably would have returned a
different verdict”).
The determination of whether to give an instruction on the
lesser-included offense in cases involving a question as to
whether a “firearm or other dangerous weapon” was involved
depends on the evidence presented in each case. The Supreme
Court has delineated three scenarios:
The rules are: (1) When a robbery is
committed with what appeared to the victim
to be a firearm or other dangerous weapon
capable of endangering or threatening the
life of the victim and there is no evidence
to the contrary, there is a mandatory
presumption that the weapon was as it
appeared to the victim to be. (2) If there
is some evidence that the implement used was
not a firearm or other dangerous weapon
which could have threatened or endangered
the life of the victim, the mandatory
presumption disappears leaving only a
permissive inference, which permits but does
not require the jury to infer that the
instrument used was in fact a firearm or
other dangerous weapon whereby the victim's
life was endangered or threatened. (3) If
all the evidence shows the instrument could
not have been a firearm or other dangerous
weapon capable of threatening or endangering
the life of the victim, the armed robbery
charge should not be submitted to the jury.
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State v. Allen, 317 N.C. 119, 124-25, 343 S.E.2d 893, 897 (1986)
(holding that the evidence presented created only a permissive
inference that the instrument used was in fact a firearm or
other dangerous weapon, allowing the jury to decide whether the
instrument threatened or endangered life, and thus, requiring
the instruction on the lesser included offense of common law
robbery should the jury reject the inference of the instrument’s
dangerous properties).
In a case involving a BB gun, in particular, this Court has
held that there must be evidence in the record of a BB gun’s
capability to inflict death or great bodily injury for a jury to
find that a BB gun is a dangerous weapon. State v. Fleming, 148
N.C. App. 16, 25, 557 S.E.2d 560, 565 (2001). Our Supreme Court
explained the necessity of the instruction on the lesser-
included offense of common law robbery when there is evidence
that the defendant used a BB gun:
In determining whether evidence of the use
of a particular instrument constitutes
evidence of use of “any firearms or other
dangerous weapon, implement or means” within
the prohibition of G.S. 14-87, the
determinative question is whether the
evidence was sufficient to support a jury
finding that a person’s life was in fact
endangered or threatened. Employing this
test, we determine that the testimony by
Robinson that the rifle he used during the
robbery was a Remington pellet gun was
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sufficient to support a jury finding that
the lives of the victims here in fact were
endangered or threatened by his possession,
use or threatened use of the rifle. The
testimony of Robinson, on the other hand,
that the rifle was a BB rifle constituted
affirmative evidence to the contrary and
indicated that the victims’ lives were not
endangered or threatened in fact by his
possession, use or threatened use of the
rifle. This latter statement by Robinson was
affirmative testimony tending to prove the
absence of an element of the offense charged
and required the submission of the case to
the jury on the lesser included offense of
common law robbery as well as the greater
offense of robbery with firearms or other
dangerous weapons.
State v. Alston, 305 N.C. 647, 650-51, 290 S.E.2d 614, 616
(1982) (citations omitted) (emphasis in original).
In the present case, we believe there is evidence from
which the jury could reasonably infer that the weapon used by
Defendant in at least some of the incidents, particularly the
Dollar General and the Domino’s, was either a BB gun or a
firearm. For instance, the victim and two other witnesses at
the Domino’s robbery stated that Defendant had a firearm. Also,
a witness to one of the robberies testified that the gun was
“close enough for me to look down the barrel and see the threads
on it[.]” Only Ms. Taylor testified that the gun used in the
Dollar General conspiracy was a BB gun; however, she also
affirmed that she was with Defendant in the car at both the
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Dollar General and the Domino’s and that she “[n]ever seen (sic)
[Defendant] with any other guns[.]” She also testified that she
was with Defendant when the gun was destroyed “[r]ight after”
the incident at Domino’s. From these testimonies, the jury
could reasonably infer that Defendant only had one gun, and –
depending upon whether the jury believed Ms. Taylor or the other
eye-witnesses – that the gun Defendant possessed at the
Domino’s, the Dollar General, and the other locations was either
a BB gun or, respectively, a real gun. Accordingly, we believe,
that trial court was required to submit a common law robbery
instruction and a conspiracy to commit common-law robbery
instruction to the jury. See Carter, 177 N.C. App. at 541, 629
S.E.2d at 335.
However, though we believe the trial court committed error,
we must consider the State’s argument that the error was
invited. “A defendant is not prejudiced . . . by error
resulting from his own conduct.” N.C. Gen. Stat. § 15A-1443(c)
(2011). In the context of jury instructions, a defendant who
consents to the manner in which the trial court gives the
instructions to the jury “will not be heard to complain on
appeal when the trial court has instructed adequately on the law
and in a manner requested by the defendant.” State v.
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Wilkinson, 344 N.C. 198, 235-36, 474 S.E.2d 375, 396 (1996)
(citation and quotation marks omitted). “[A] defendant who
invites error has waived his right to all appellate review
concerning the invited error, including plain error review.”
State v. Hope, __ N.C. App. __, __, 737 S.E.2d 108, 111 (2012),
disc. review denied, 366 N.C. 438, 736 S.E.2d 493 (2013)
(citation and quotation marks omitted).
During the charge conference in this case, Defense counsel,
counsel for the State, and the trial court had a discussion
pertaining to an instruction on common law robbery and
conspiracy to commit common law robbery in which counsel for the
State indicated that he would not necessarily “be opposed to a
common law instruction.” However, Defense Counsel withdrew his
request for the lesser-included offense, stating, “for the
record I would withdraw my request that common law robbery be
submitted in this case, because I had asked for it and now I
would withdraw that in light of the further reflection[.]” The
Court asked defense counsel the following question:
COURT: As I understood or the end of our
conversation on Friday, you were not
requesting it.
MR. PEARCE: That is correct, Your Honor.
We’re not requesting a common law robbery
charge.
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COURT: Either in the conspiracy or in the
underlying[?]
MR. PEARCE: In none of the six issues that
will be submitted. We’re not asking for
that, yes, sir.
Defense counsel also made clear that his “whole defense” was
that Defendant was not the perpetrator, because “the elements of
the crime are almost given[.]” We believe that by withdrawing
his request for the lesser-included offense, by agreeing to
instructions without the lesser-included offense instruction,
and by declining, a second time, the lesser-included offense
instruction, Defendant invited error in this case. See State v.
Sierra, 335 N.C. 753, 760, 440 S.E.2d 791, 795 (1994) (holding
that the defendant invited error by “stat[ing] a total of three
times that he did not want such an instruction . . . and was
contrary to defendant’s theory of the case”); Hope, __ N.C. App.
at __, 737 S.E.2d at 111 (stating that “a defendant who invites
error has waived his right to all appellate review concerning
the invited error, including plain error review”); State v.
Wilkinson, 344 N.C. 198, 235-36, 474 S.E.2d 375, 396 (1996)
(holding the defendant invited error when he consented to the
manner in which the trial court gave the instructions to the
jury and, when asked specifically, said, “[t]hat will be fine”).
Therefore, we dismiss this argument.
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II: Jury Instruction: Definition of Deadly Weapon
In Defendant’s second argument, he contends the trial court
committed plain error by failing to define “dangerous weapon” to
the jury. We disagree.
We have held that, in a prosecution for robbery with a
firearm or other deadly weapon, when evidence is conflicting
regarding whether the instrument used was actually a firearm or
dangerous weapon, “the jury must be properly instructed with a
definition of a dangerous weapon.” Fleming, 148 N.C. App. at
26, 557 S.E.2d at 566. In this case, we believe that even if
the trial court erred by failing to define “dangerous weapon” in
its instructions to the jury – even where we have held that the
trial court’s failure to instruct on lesser included offenses
was the result of Defendant’s invited error – we do not believe
that this failure to define “dangerous weapon” rises to the
level of plain error.
“Under the plain error rule,” the “defendant must convince
this Court not only that there was error, but that absent the
error, the jury probably would have reached a different result.”
State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993)
(citation omitted). Defendant’s argument in his brief that he
was prejudiced consists of one sentence, in which he states that
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there may have been a different result because this is a “close
case” and the jury “deliberated for a lengthy time.” After our
thorough review of the record, we believe the evidence
incriminating Defendant was such that, even if there was error
pertaining to the trial court’s failure to instruct the jury on
the definition of dangerous weapon, there was no plain error.
Though it is possible that the jury may have believed Ms.
Taylor’s testimony that the gun was a BB gun, Defendant has
failed to show that the jury probably believed her, and
disbelieved the other witnesses. Accordingly, Defendant has
failed to meet his burden of showing that the jury probably
would have reached a different result had the trial court given
the instruction on the definition of deadly weapon. See State
v. Carter, 366 N.C. 496, 500, 739 S.E.2d 548, 552 (2013)
(stating that there was no plain error where the “[d]efendant
has not shown that ‘the jury probably would have returned a
different verdict’ if the trial court had provided the . . .
instruction”) (internal citation omitted).
III: Ineffective Assistance of Counsel
In Defendant’s third argument on appeal, he contends he
received ineffective assistance of counsel when his trial
counsel withdrew his request that the trial court instruct on
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common law robbery and conspiracy to commit common law robbery,
and failed to request an instruction on the definition of deadly
weapon. We believe that the cold record is not sufficient to
allow us to decide this issue. Accordingly, we dismiss
Defendant’s claim without prejudice to his “right to reassert
[this claim] during a subsequent MAR proceeding.” State v.
Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001).
IV: Amendment to Indictments
In Defendant’s fourth argument on appeal, he contends the
trial court erred by allowing the indictments to be amended. We
disagree.
In this case, the trial court ruled that “[t]he motion to
amend the indictment to allege the victim’s name as Paul
Bringhurst Waterbury rather than Paul Bringhurst is allowed.”
The trial court also allowed the motion to “amend [the
indictments] to Douglas Lipford – Douglas Durant Lipford the
second.” Defendant argues the foregoing was error. This Court
has held such changes are not improper amendments and do not
substantially alter the charge set forth in the indictment. See
State v. Hewson, 182 N.C. App. 196, 211, 642 S.E.2d 459, 469,
disc. review denied, 361 N.C. 572, 651 S.E.2d 229 (2007)
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(changing “Gail Hewson Tice” to “Gail Tice Hewson”). This
argument is without merit.
NO ERROR in part; DISMISSED in part.
Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).