An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-678


Filed: 18 February 2003


         v.                        Forsyth County
                                Nos. 01CRS32230, 32149,
RODERICK YOUNG CURRY,                 32182, 55138, 54536

    Appeal by defendant from judgments entered 5 December 2001 by Judge Lindsay R. Davis, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 20 January 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Kathleen S. Edwards, for the State.

    James L. Goldsmith, Jr. for defendant-appellant.

    TYSON, Judge.

    Roderick Young Curry, Jr. (“defendant”) was charged with two counts of possession of a firearm by a convicted felon, three counts of robbery with a dangerous weapon, and having attained the status of habitual felon.

I. Background

    These charges arose out of the 10 and 13 May 2001 robberies of two Winston-Salem restaurants. The charges were joined for trial, and this matter was tried before a jury during the 3 December 2001 criminal session of Forsyth County Superior Court. Three eyewitnesses to the robberies identified defendant as one of the robbers of their respective restaurants on 10 and 13 May 2001. Afingerprint expert with the Winston-Salem Police Department also testified that he processed two latent fingerprints lifted from one of the restaurant's menus, and concluded that those fingerprints matched the defendant's fingerprints. The State also presented the testimony of another Winston-Salem police officer who, upon the search of defendant's residence, recovered several items that matched the description of items taken during the 13 May 2001 restaurant robbery.
    Defendant presented the testimony of two friends to establish an alibi for defendant at the time of the 10 and 13 May 2001 restaurant robberies. These witnesses could not, however, testify as to the exact time they saw defendant on the dates in question.
    After a presentation of the evidence, Judge Davis charged the jury, and the jury retired to await the verdict sheets. Contrary to the judge's instruction, the jury may have begun deliberations prior to receipt of the verdict sheets. Upon receipt of a written question from the jury, Judge Davis returned the jury to the courtroom and stated:
        The first thing I would like to do, and I don't think it's a major thing, but a gentle remonstrance, if you will, I asked you not to begin any deliberations until you received the verdict form. The question that you sent out indicates that you may have begun some deliberations.
The judge continued, in answer to the jury's question regarding “acting in concert,” and reinstructed the jury on that particular point of law. Defendant did not object to the jury's possible premature deliberations. The jury deliberated and found defendantguilty of all of the substantive charges. Defendant thereafter pled guilty to the charge of being a habitual felon. Defendant was sentenced to a total of four consecutive terms of 116-149 months imprisonment for his convictions. Defendant appeals.
II. Issues

    By the sole assignment of error argued on appeal, defendant argues that the commencement of jury deliberations prior to receiving the verdict sheet in contradiction of the trial court's instructions deprived him of a fair trial. Defendant has failed to bring forth his remaining assignments of error on appeal, and they are therefore taken as abandoned. N.C.R. App. P. 28(a) (2002).
III. Plain Error

    Defendant concedes that he did not object to the jury's premature deliberations, and “urges this Court to undertake [] review of the issue under the plain error doctrine.” We note that defendant has failed to “specifically and distinctly” contend that the instant error amounted to plain error as required by N.C.R. App. P. 10(c)(4). Plain error analysis does not appear to be applicable in this case. See State v. Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578 (2000)(reiterating that plain error review is applicable only to jury instructions and evidentiary matters). Presuming this issue was properly before this Court, defendant has not presented any argument to show the jury's premature deliberations prejudiced him. See State v. Davis, 251 N.C. 93, 94, 110 S.E.2d 614, 615 (1959)(“To be entitled to a new trial defendant must show prejudice.”); see e.g., N.C. Gen. Stat. § 15A-1443(2001)(providing that in order to show prejudice by errors relating to rights arising other than under the United States Constitution, a defendant must show that there is a “reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial”); State v. Keel, 337 N.C. 469, 485, 447 S.E.2d 748, 757 (1994)(providing that in order to show error under the plain error doctrine the defendant must show that “absent the error the jury probably would have reached a different verdict”), cert. denied, 513 U.S. 1198, 131 L. Ed. 2d 147 (1995). We do not perceive any prejudice.
IV. Conclusion

    We conclude that defendant is not entitled to relief. The evidence of defendant's guilt is overwhelming: (1) eye witness identification by three persons present during the robberies, (2) a fingerprint match from a restaurant menu, and (3) defendant's possession of items taken from one of the robberies. The testimony of defendant's two alibi witnesses is less than persuasive. Neither witness had a clear recollection of the time they allegedly saw defendant on the days of the 10 May and 13 May 2001 robberies. Both admitted to being personal friends of defendant. This assignment of error is overruled.
    No error.
    Judges TIMMONS-GOODSON and BRYANT concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***