An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-537

NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2003

STATE OF NORTH CAROLINA

v .                                 Wake County
                                    Nos. 00CRS087764-65
CHRISTOPHER SHAW                            01CRS049248-50

    Appeal by defendant from judgments entered 21 August 2001 by Judge Henry W. Hight, Jr. in Wake County Superior Court. Heard in the Court of Appeals 14 April 2003.

    Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Staci Tolliver Meyer, for the State.

    Maitri “Mike” Klinkosum for defendant-appellant.

    HUNTER, Judge.

    Christopher Shaw (“defendant”) appeals from convictions of conspiracy to commit first degree burglary, conspiracy to commit robbery with a dangerous weapon, first degree burglary, robbery with a dangerous weapon, and assault with a deadly weapon with intent to kill inflicting serious injury. For the reasons set forth herein we find no error.
    The evidence relevant to this appeal is briefly summarized as follows. On the evening of 29 September 2000, defendant, Michael Booker (“Booker”), Thomas Holland (“Holland”), and Donnie McNeil (“McNeil”) convened at Booker's trailer and discussed robbing someone. Defendant suggested robbing Cara Cummins' (“Cummins”) trailer because Cummins did not have any guns and had goodmarijuana. The four men then devised a plan, which included going to Cummins' home where Holland and McNeil were to go in and take the marijuana and money. Booker provided McNeil with a gun while defendant provided Holland with a gun to use during the robbery. Defendant showed Holland and McNeil how to make masks by tying shirts around their heads. The four men then left Booker's home to carry out the formulated plan. On their way to Cummins' trailer, defendant instructed McNeil and Holland not to harm Cummins. When they arrived at Cummins' trailer, Booker and defendant dropped Holland and McNeil off while they drove around the block.
    Soon thereafter, Holland and McNeil ran to the car and stated that they could not do it because somebody had come outside of the trailer. The four men then returned to Booker's home. While in the car, defendant told Holland and McNeil, “if you all going to do it, do it. Don't keep procrastinating or whatever.” By the time the men reached Booker's trailer, they decided to return to Cummins' home to commit the robbery. Defendant, however, said that he did not wish to go back, so Booker dropped him off at his house. Defendant told the three men to pick him up after they got the money and marijuana so that they could split it up at Booker's trailer. Booker drove Holland and McNeil back to Cummins' home and dropped them off while he circled the block.
    Cummins and James Brooks (“Brooks”) were in Cummins' home when Holland and McNeil arrived. Brooks saw two masked men come to the front steps of the trailer. Brooks then observed a masked man at the door with a gun pointed toward him and Cummins. Brooksrecognized McNeil as one of the masked men since McNeil's mask was partially removed. Brooks quickly grabbed Cummins' arm and ran down the hallway towards the back of the trailer. Upon noticing that Cummins was not with him, Brooks ran back to the kitchen to find her. Brooks found Cummins in the kitchen with the two masked men. McNeil stated, “give me the money, give me the weed. Give me whatever you've got.” The armed men then took Brooks and Cummins into the master bedroom. Brooks was forced to lie on the floor and was told by McNeil to put a shirt over his face. Brooks complied. McNeil took Brooks' phone, pager, truck keys, and money that he had on his person. Cummins gave Holland and McNeil all the marijuana and money that she had. The gunmen eventually separated Brooks and Cummins. McNeil forced Brooks into the bathroom while Cummins was taken into her daughter's bedroom where Holland raped her. Thereafter, McNeil took Brooks out of the bathroom and Brooks observed Holland pulling Cummins' clothes off. At that point, Brooks jerked up and tried to “rear” McNeil through the back window. Both Holland and McNeil began shooting at Brooks. Brooks was wounded seven times before he ran out of the front door.
    Holland and McNeil ran out of the back door of Cummins' trailer and got into Booker's car. Holland and McNeil told Booker that they had to shoot somebody. After returning to Booker's trailer, Holland and McNeil divided the “stuff” taken during the robbery between the four men. Defendant received a share of marijuana and money.    Defendant was charged in true bills of indictment with conspiracy to commit first degree burglary, conspiracy to commit robbery with a dangerous weapon, first degree burglary, robbery with a dangerous weapon, and assault with a deadly weapon with intent to kill inflicting serious injury. Defendant was found guilty of all charges. Defendant received the following consecutive sentences: 34 to 50 months imprisonment for conspiracy to commit first degree burglary; 34 to 50 months imprisonment for conspiracy to commit robbery with a dangerous weapon; 103 to 133 months imprisonment for robbery with a dangerous weapon; 103 to 133 months imprisonment for first degree burglary; and 116 to 149 months for assault with a deadly weapon with intent to kill inflicting serious injury. Defendant appeals.

I.

    Defendant initially contends the trial court erred in denying his motion to dismiss all the charges against him. We disagree and will address each charge in turn.
    “In ruling on a motion to dismiss, the trial court is required to view the evidence in the light most favorable to the State, making all reasonable inferences from the evidence in favor of the State.” State v. Kemmerlin, 356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002). The trial court must determine “whether there is substantial evidence of each essential element of the crime . . . .” State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998). Substantial evidence is defined as “that amount of relevant evidence necessary to persuade a rational juror to accepta conclusion.” State v. Scott, 356 N.C. 591, 597, 573 S.E.2d 866, 869 (2002).
A. First Degree Burglary and

Robbery with a Dangerous Weapon

    “The elements of first-degree burglary are: (1) breaking, (2) and entering, (3) at night, (4) into the dwelling, (5) of another, (6) that is occupied, (7) with the intent to commit a felony therein.” State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721- 22 (2001). The essential elements of robbery with a dangerous weapon are: “(1) an unlawful taking or an attempt to take personal property from the person or in the presence of another, (2) by use or threatened use of a firearm or other dangerous weapon, (3) whereby the life of a person is endangered or threatened.” Call, 349 N.C. at 417, 508 S.E.2d at 518. Defendant was convicted of these crimes based on his being an accessory before the fact. Pursuant to N.C. Gen. Stat. § 14-5.2 (2001), an accessory before the fact to a felony is guilty and punishable as a principal to that felony. “An accessory before the fact is one who is absent from the scene when the crime is committed but who procures, counsels, commands, or encourages the principal to commit it.” State v. Marr, 342 N.C. 607, 611, 467 S.E.2d 236, 238 (1996).
    In the instant case, the evidence tended to show that on the night of 29 September 2000, Holland and McNeil broke into Cummins' trailer while Cummins and Brooks were inside. McNeil immediately asked, “where's your weed, where's your money?” Cummins gave the gunmen money and marijuana. Brooks was shot by McNeil and Holland seven times during the robbery. While defendant was not present atthe crime scene, the evidence showed that he counseled, commanded, and encouraged the men to commit first degree burglary and armed robbery. After the gunmen's failed attempt to burglarize Cummins' home, defendant stated, “if you all going to do it, do it. Don't keep procrastinating or whatever.” In addition, defendant played an active role in planning the burglary and robbery by providing Holland a gun, showing McNeil and Holland how to tie shirts around their heads, designating McNeil and Holland as the men to enter Cummins' residence, and suggesting Cummins' home as the target for the burglary and robbery. Therefore, there was more than sufficient evidence to send these charges to the jury.

B. Conspiracy Charges

    Defendant was charged and convicted of conspiracy to commit first degree burglary and conspiracy to commit robbery with a dangerous weapon. Defendant asserts that the trial court erred in denying his motion to dismiss these charges because he withdrew from the conspiracy when he was taken home at his request after the men's failed attempt to rob Cummins.
    “A criminal conspiracy is an agreement between two or more people to do an unlawful act or to do a lawful act in an unlawful manner.” State v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835 (1991). To prove conspiracy it is unnecessary for the State to prove an express agreement. Id. The State must only present evidence tending to show a mutual, implied understanding. Id. This Court has previously stated:
        [O]nce a conspiracy is shown, each conspirator is responsible until he withdraws from theconspiracy for all acts committed by the others in the execution of the common purpose and is equally guilty as a principal with the other participants in the commission of the crimes contemplated by the conspiracy, even though not personally present when those crimes are committed.

State v. Reagan, 35 N.C. App. 140, 143, 240 S.E.2d 805, 808 (1978).     The evidence in the case sub judice tended to show that on the evening of 29 September 2000, defendant, Booker, McNeil, and Holland entered into an agreement to rob Cummins' trailer. As stated earlier, defendant provided Holland a gun, showed McNeil and Holland how to tie shirts around their heads, designated McNeil and Holland as the men to enter Cummins' residence, and suggested Cummins' home as the target for the burglary and robbery. After the men's failed attempt to rob Cummins, defendant stated that he did not want to go back, and asked to be taken home. Defendant, however, provided no reason for not wishing to return to Cummins' residence. Upon being dropped off at his home, defendant told the men to pick him up after they had gotten the “stuff” so that they could then go split it at Booker's home.
    In viewing the evidence in the light most favorable to the State and providing the State with every reasonable inference that could be drawn from the evidence, we conclude the trial court did not err in denying defendant's motion to dismiss the conspiracy charges. Although defendant asked to go home prior to the other three men returning to Cummins' residence, it could reasonably be inferred that this did not constitute withdrawal from the conspiracy. Defendant's failure to withdraw could be inferred fromdefendant telling Booker and the other men to pick him up directly after the robbery so that they could split up the money and marijuana taken from Cummins. Therefore, the trial court properly denied defendant's motion to dismiss the conspiracy charges.
C. Assault with a Deadly Weapon with Intent

to Kill Inflicting Serious Injury

    The charge of assault with a deadly weapon with intent to kill inflicting serious injury requires proof of the following elements: “(1) an assault, (2) with a deadly weapon, (3) an intent to kill, and (4) infliction of a serious injury not resulting in death.” State v. Grigsby, 351 N.C. 454, 456, 526 S.E.2d 460, 462 (2000). Defendant was convicted of this offense based on a conspiracy theory.
        [O]nce a conspiracy is shown, each conspirator “is responsible for all acts committed by the others in the execution of the common purpose which are a natural or probable consequence of the unlawful combination or undertaking, even though such acts are not intended or contemplated as a part of the original design.”

State v. Bindyke, 288 N.C. 608, 618-19, 220 S.E.2d 521, 528 (1975) (emphasis added) (citations omitted). A conspirator who is not personally present at the time these unlawful acts are committed in an effort to achieve the primary object of the criminal plan is still responsible for the crimes committed by co-conspirators. Id. at 619, 220 S.E.2d at 528.
    In the instant case, there was evidence of an agreement entered into by defendant and the other three men to rob Cummins. The plan, which defendant actively participated in formulating,included Holland and McNeil carrying guns. In fact, defendant provided McNeil with a gun to carry during the robbery. We acknowledge that there is evidence that defendant told Holland and McNeil not to harm Cummins. However, there was no evidence that defendant told the perpetrators of the robbery not to harm Brooks. During the robbery, Brooks was shot seven times by Holland and McNeil and is now disabled as a result. It was probable that the perpetrators would face resistance from the occupiers of the trailer being robbed and thus, a shooting was a natural consequence of the robbery. Therefore, the evidence, when viewed in the light most favorable to the State, was ample to submit the charge of assault with a deadly weapon with intent to kill inflicting serious injury to the jury.

II.
    
    Defendant next contends the indictments contain fatal variances and defects in his charges for first degree burglary, robbery with a dangerous weapon, and assault with a deadly weapon with intent to kill inflicting serious injury because the indictments charge defendant as if he had engaged in the acts themselves and not as an accessory before the fact. We disagree.
    N.C. Gen. Stat. § 14-5.2 provides in part: “All distinctions between accessories before the fact and principals to the commission of a felony are abolished. Every person who heretofore would have been guilty as an accessory before the fact to any felony shall be guilty and punishable as a principal to that felony.” Our Supreme Court has stated that “[i]n cases controlledby N.C.G.S. 14-5.2, an indictment charging the principal felony will support trial and conviction as an accessory before the fact.” State v. Gallagher, 313 N.C. 132, 141, 326 S.E.2d 873, 880 (1985). Gallagher is controlling. Accordingly, we overrule defendant's assignment of error.
III.

    Defendant finally argues the trial court erred in failing to instruct the jury that defendant could not be convicted of the conspiracy charges and the principal felonies. We note that defendant has failed to preserve this issue for our review since defendant raised no objection to the jury instructions and has failed to specifically and distinctly contend that any error committed amounted to plain error. N.C.R. App. P. 10(b)(2), 10(c)(4). However, had defendant properly preserved this issue for our review, we would have found no error. A trial court may permit the jury to return guilty verdicts for both conspiracy to commit a crime and accessory before the fact to the same crime. See State v. Wilson, 338 N.C. 244, 449 S.E.2d 391 (1994). Accordingly, in this case the trial court properly submitted to the jury the conspiracy charges along with the principal felony charges based on defendant being an accessory before the fact.
    Defendant failed to include an argument supporting his remaining assignment of error. Therefore, it is deemed abandoned. N.C.R. App. P. 28(b)(6).
    No error.
    Chief Judge EAGLES and Judge CALABRIA concur.
    Report per Rule 30(e).

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