An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-654


Filed 20 May 2003


         v.                        Forsyth County
                                No. 01 CRS 56075

    Appeal by defendant from judgment entered 5 March 2002 by Judge Catherine C. Eagles in Forsyth County Superior Court. Heard in the Court of Appeals 19 May 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General William P. Hart, and Assistant Attorney General Robert C. Montgomery, for the State.

    Charns & Charns, by Diane Tucker Charns, for defendant- appellant.

    CALABRIA, Judge.

    Gary Joseph Gaston (“defendant”) was found guilty of robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. The convictions were consolidated, and defendant was sentenced to a minimum term of 103 months and a maximum term of 133 months in the custody of the North Carolina Department of Correction.
    The State presented evidence tending to show that on the evening of 30 May 2001, Jeremiah Wood, a delivery person for Domino's Pizza, delivered pizza to 2813 South Main Street in Winston-Salem. A man answered his knock on the door, asked him for the cost, and went back inside the residence. Two men wearingmasks then came from around the house. The two men placed guns to Wood's head and side and ordered him to lie down. The two men searched through Wood's pockets and took all of his money. The two men then fled.
    Fayon Moore and Matthew Watlington testified for the State that they and defendant were at Watlington's home, located at 2813 South Main Street in Winston-Salem, on the evening of 30 May 2001. The three of them devised a plan to lure a pizza delivery person to the residence for the purpose of robbing him/her. Moore placed the call for pizza delivery to the residence. When the delivery person arrived at the house, Watlington answered the door. Meanwhile, defendant and Moore, wearing face coverings, came around from a side exit door. Defendant placed a gun to the delivery person's side. Moore took money from the delivery person's pockets. Defendant and Moore left the scene. Defendant and Watlington subsequently met Moore at Moore's girlfriend's residence. Moore gave defendant the money he had taken from the pizza delivery person.
    Defendant's sole contention is that the court erred by refusing to instruct the jury in accordance with N.C.P.I._Crim. 104.21 (1986). This instruction states:
        There is evidence which tends to show that a witness was testifying [under a grant of immunity][under an agreement with the prosecutor for a charge reduction in exchange for his testimony][under an agreement with the prosecutor for a recommendation for sentence concession in exchange for his testimony]. If you find that he testified in whole or in part for this reason you should examine his testimony with great care and caution indeciding whether or not to believe it. If, after doing so, you believe his testimony in whole or in part, you should treat what you believe the same as any other believable evidence.

N.C.P.I._Crim. 104.21 (1986). As a general principle, a court is required to give a requested instruction, at least in substance, when the instruction is a correct statement of law and is supported by evidence. State v. Lamb, 321 N.C. 633, 644, 365 S.E.2d 600, 605-06 (1988). Moreover, a judge is required by statute, with regard to a witness who is testifying under grant of immunity, to inform the jury of this fact and to instruct during the charge to the jury “as in the case of interested witnesses.” N.C. Gen. Stat. § 15A-1052(c) (2001). This duty to instruct applies, however, only when there is evidence of a formal grant of immunity, of an understanding or agreement not to prosecute, or of an understanding or agreement to reduce charges or to recommend sentence concessions. State v. Bare, 309 N.C. 122, 126-27, 305 S.E.2d 513, 516-17 (1983).
    The present record contains no evidence of any formal grant of immunity or agreement or understanding other than the hopes of Watlington and Moore for leniency. Even if the witnesses' hope of possible leniency mandated the giving of the instruction, the court gave it in substance by instructing the jury to consider the testimony of an accomplice to the crime as that of one with an interest in the outcome and to “examine every part of the testimony of an accomplice with the greatest care and caution.” State v. Cuevas, 121 N.C. App. 553, 560-61, 468 S.E.2d 425, 430 (1996).    By not discussing in his brief the other assignment of error listed in the record on appeal, defendant is deemed to have abandoned it. N.C. R. App. P. 28(a).
    We hold defendant received a fair trial, free of prejudicial error.
    No error.
    Judges MARTIN and McCULLOUGH concur.
    Report per Rule 30(e).

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