Opinion
No. COA10-460
Filed 18 January 2011 This case not for publication
Appeal by defendant from judgment entered 3 September 2009 by Judge W. Erwin Spainhour in Rowan County Superior Court. Heard in the Court of Appeals 17 November 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Richard E. Slipsky, for the State. Leslie C. Rawls, for defendant-appellant.
Rowan County No. 07 CRS 53408.
The trial court properly charged the jury in this case on robbery with a firearm under an acting in concert theory.
I. Factual and Procedural Background
On 14 May 2007 at approximately 4:00 p.m., Cody Hodge (Hodge) was at his residence that he shared with his cousin and her boyfriend, Kevin Burrell (Burrell). Hodge heard a vehicle pull into the driveway, and saw Phillip Cody Morgan (defendant) and Daniel Hamilton (Hamilton) exit the vehicle. Shortly thereafter, defendant and Hamilton were standing in the doorway. Defendant had brought Hamilton with him to collect a debt from Burrell that was owed from the purchase of marijuana the day before. Hamilton asked defendant if Hodge was Burrell and defendant replied, "No[.]" Hamilton then aggressively walked into the residence, asked Hodge "Where's [Burrell]?", pulled out a gun, and pointed it at Hodge's head. Hodge told Hamilton that Burrell was not home and that he did not know where he was. Hamilton repeatedly asked Hodge where Burell was and stated that he wanted his money. Hamilton made Hodge walk through the residence at gunpoint to determine whether Burrell was in the residence. While this occurred, defendant was standing outside, but Hodge saw him "peek in and out" of the doorway approximately four times.
After walking through the entire residence, Hamilton instructed Hodge to empty his pockets. Hodge had $11.00 in cash. Hamilton stated that he did not want Hodge's money and directed Hodge to take Burrell's television to defendant's vehicle. Hamilton told Hodge that it would cost Burrell $50.00 to get his television back. Defendant opened the back driver's side door and instructed Hodge to place the television in the back seat. Hamilton then threatened Hodge stating, "If you call the police, I'm going to come back, and I'm going to kill you." Defendant also threatened Hodge repeating that "If you do call the police, we're coming back." Hamilton then told Hodge that he wanted his $11.00. Hodge complied. As defendant and Hamilton drove away, Hodge's neighbor arrived. Defendant told his neighbor that he had been robbed and the neighbor called police.
On 27 August 2007, defendant was indicted for robbery with a firearm. On 2 September 2009, a jury found defendant guilty as charged. The trial court found defendant to be a prior record level I and sentenced defendant to 55 to 75 months imprisonment. On 3 September 2009, the trial court amended its judgment and sentenced defendant to 51 to 71 months imprisonment. Defendant appeals.
II. Jury Instruction on Acting in Concert
In his only argument, defendant contends that the trial court erred in overruling his objection to its acting in concert jury instruction and refusing to give the instruction requested by defendant. We disagree.
A. Standard of Review
On appeal, this Court considers a jury charge contextually and in its entirety. The charge will be held to be sufficient if it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed. The party asserting error bears the burden of showing that the jury was misled or that the verdict was affected by an omitted instruction. Under such a standard of review, it is not enough for the appealing party to show that error occurred in the jury instructions; rather, it must be demonstrated that such error was likely, in light of the entire charge, to mislead the jury.
State v. Bettis, ___ N.C. App. ___, ___, 698 S.E.2d 507, 511-12 (2010) (quotation omitted). Specific jury instructions requested by the defendant "need only be given in substance if correct in law and supported by the evidence." State v. Morgan, 359 N.C. 131, 169, 604 S.E.2d 886, 909 (2004), cert. denied, 546 U.S. 830, 163 L. Ed. 2d 79 (2005).
B. Analysis
In the instant case, the State submitted the robbery with a firearm charge to the jury under an acting in concert theory. The doctrine of acting in concert can be articulated as follows:
If "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 (quotation and alteration omitted), cert. denied, 522 U.S. 876, 139 L. Ed. 2d 134 (1997), cert. denied, 523 U.S. 1024, 140 L. Ed. 2d 473 (1998); see also State v. Herring, 176 N.C. App 395, 400, 626 S.E.2d 742, 746 (2006) ("The theory of acting in concert, as properly defined by the trial court, requires a common purpose to commit a crime. . . . [T]he requisite common purpose for acting in concert is not necessarily the intent to commit the crime charged, rather it is sufficient if the crime charged is a natural occurrence of, or flows from a common criminal purpose." (quotation and citations omitted)), disc. review denied and appeal dismissed, 360 N.C. 651, 637 S.E.2d 183 (2006), cert. denied, 549 U.S. 1293, 167 L. Ed. 2d 342 (2007).
The trial court proposed the following jury instruction on acting in concert:
For a person to be guilty of a crime, it is not necessary that he personally do all the acts necessary to constitute the crime. If two or more persons join in a common purpose to collect an illegal drug debt, each of them, if actually or constructively present, is guilty of that crime if the other person commits the crime and also guilty of any other crime committed by the other in pursuance in a common purpose to commit the crime of collecting an illegal drug debt or as a natural or probable consequence thereof.
(Emphasis added.) Defendant objected and requested that the trial court instruct the jury that defendant could be found guilty if the jury found that "two or more persons join[ed] in a common purpose to commit robbery with a firearm or common law robbery. . . ." The trial court refused this request on the basis that the evidence showed that defendant and Hamilton "joined in an illegal act in that they intended to collect and tried to collect on an illegal drug debt."
We note that on appeal defendant does not challenge the trial court's assertion that the evidence showed a common purpose to collect a debt rather than commit robbery. Defendant argues that "the instructions inaccurately present the law by characterizing the debt as `illegal' and the attempt to collect the debt as a `crime.'" Defendant contends that no North Carolina statute or common law renders the attempt to collect an unenforceable debt as a crime.
In State v. Freeman, this Court noted the distinction between the sale and delivery of a controlled substance. ___ N.C. App. ___, ___, 690 S.E.2d 17, 20-21 (2010). "A sale of a controlled substance is a `transfer of property for a specified price payable in money.' A delivery of a controlled substance is the `actual, constructive, or attempted transfer from one person to another of a controlled substance.'" Id. (internal quotations and emphasis omitted). In Freeman, we held that the sale of crack cocaine was not completed because payment was never made for the controlled substance even though the delivery was completed the week prior. Id. at ___, 690 S.E.2d at 21. The defendant subsequently showed up to collect payment and shot the victim. Id. at ___, 690 S.E.2d at 19. We held that the defendant's actions constituted an attempt to complete the transaction of the sale of cocaine and that it was properly made the basis of submitting the issue of felony murder to the jury. Id. at ___, 690 S.E.2d at 21.
The reasoning in Freeman is applicable to the instant case. By defendant's own testimony, the following events transpired: on 12 May 2007, defendant called Hamilton in order to find Burrell "a bag of marijuana." Defendant met up with Hamilton and purchased a "quarter bag" of marijuana for $25.00. Defendant purchased the marijuana with his own money. Burrell was to pay defendant when the drugs were delivered. Defendant then picked up Burrell, delivered the marijuana, and took him back to his residence. On the way to his residence, Burrell told defendant that he did not have any money. While at the residence, Burrell again informed defendant that he did not have the money for the marijuana and asked defendant "if [he] had a problem with it." Defendant told Burrell that he would come back the next day to get his money. On 14 May 2007, defendant told Hamilton what had occurred, and Hamilton agreed to "help straighten out the problem." Defendant picked up Hamilton and drove to Burrell's residence. This was when the encounter with Hodge occurred.
A "quarter bag" is equal to seven grams of marijuana.
Evidence at trial showed that defendant and Hamilton appeared in the doorway of the residence. Hamilton entered the residence, held a gun to Hodge's head, and demanded to know where Burrell was. Hamilton walked Hodge through the residence at gunpoint and ordered him to take Burrell's television to defendant's vehicle. Hamilton stated to Hodge that if Burrell wanted his television back, it would cost him $50.00. Hamilton also demanded that Hodge give him $11.00 in cash that he had in his pocket. Hamilton and defendant then threatened Hodge, stating that if he called the police, they would come back and kill him.
Based upon the rationale of Freeman, defendant and Hamilton's attempt to collect an illegal drug debt constituted an attempt to complete the transaction of the sale of marijuana. The sale of marijuana is prohibited in North Carolina and is punishable as a felony. N.C. Gen. Stat. §§ 90-94, 90-95(b)(2). In the attempt to complete the illegal drug transaction, Hamilton committed robbery with a firearm. While the jury instruction could certainly have been more clearly stated, we hold that the trial court did not err in its acting in concert instruction to the jury. The trial court's jury instructions, when viewed as a whole, were substantially correct and will be upheld on appeal. State v. McGhee, 16 N.C. App. 702, 707, 193 S.E.2d 446, 450 (1972), cert. denied, 282 N.C. 674, 194 S.E.2d 154 (1973); see also State v. Roache, 358 N.C. 243, 304, 595 S.E.2d 381, 420 (2004) ("[W]hen instructions, viewed in their entirety, present the law fairly and accurately to the jury, the instructions will be upheld." (citation omitted)).
Even assuming arguendo that the trial court erred in its acting in concert instruction, the burden is on defendant to demonstrate "that such error was likely, in light of the entire charge, to mislead the jury." Bettis, ___ N.C. App. at ___, 698 S.E.2d at 512. After the trial court gave the acting in concert instruction, it set forth the elements of robbery with a firearm and concluded:
So if you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant, acting either by himself or acting with another person known as the Hammer or — strike that — known as Hammer, had in his possession a firearm and took and carried away property from the person or presence of a person without his voluntary consent by endangering or threatening his life with the use or threatened use of a firearm, the defendant knowing that he was not entitled to take the property and intending to deprive that person of its use permanently, it would be your duty to return a verdict of guilty.
Viewing the jury instruction in its entirety, we hold defendant has failed to show that any error was likely to mislead the jury. Id. This argument is without merit.
NO ERROR.
Judges STEPHENS and HUNTER, JR. concur.
Report per Rule 30(e).