An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-810

NORTH CAROLINA COURT OF APPEALS

Filed: 06 May 2003

STATE OF NORTH CAROLINA

v .                         Haywood County
                            No. 01 CRS 1293
ROBERT K. GROENEWOLD

    Appeal by defendant from judgment entered 7 December 2001 by Judge Ronald K. Payne in Haywood County Superior Court. Heard in the Court of Appeals 25 March 2003.

    Roy Cooper, Attorney General, by K.D. Sturgis, Assistant Attorney General, for the State.

    Russell J. Hollers, III for defendant-appellant.

    STEELMAN, Judge.

    Defendant, Robert K. Groenewold, appeals a conviction of second-degree murder. He asserts five assignments of error. For the reasons discussed herein, we find no error.
    The State's evidence tended to show that on the evening of 1 February 2001, Deanah McCoy and her friend, Chastity Worley, went to Thunder Ridge, a dance hall in Maggie Valley, North Carolina. While there, the two women saw Martin Pepion, McCoy's former boyfriend and father of her two children, and defendant, Pepion's cousin. Pepion danced with McCoy and wanted to go home with her,but she refused. Pepion became angry.
    When Thunder Ridge closed at 2:00 a.m. on 2 February 2001, the four people left. In the parking lot, Pepion accused McCoy of having had too much to drink. McCoy eventually allowed Worley to drive her truck. Before they left, Pepion attempted to get into McCoy's truck on both the driver and passenger sides.
    As McCoy and Worley drove away, defendant and Pepion followed them in defendant's minivan, with the understanding that Worley would drive herself home and the men would follow McCoy home, ostensibly to make sure she got there safely. During the ride, Worley noted that defendant was driving so closely behind her that she could not see his headlights.
    At Worley's home, McCoy refused Worley's invitation to stay the night because her children had school later that day. Worley expressed concern about McCoy returning with defendant and Pepion, but McCoy stated that she would be all right as long as everyone remained in their respective vehicles. McCoy left Worley's home at approximately 2:58 a.m. and drove to a church parking lot where she met Pepion and defendant.
    Pepion got out of the minivan and approached McCoy's vehicle with a gun. They began to argue about the resumption of their relationship. McCoy asked defendant to get out of his minivan. She and Pepion gave defendant the gun. They resumed their argumentand defendant, for no apparent reason, shot McCoy in the head as she sat in her truck at approximately 3:15 a.m.
    Immediately after the shooting, defendant told Pepion to get into McCoy's truck. Defendant and Pepion drove the two vehicles down Interstate Highway 26. Defendant stopped at a gas station and purchased a two-gallon gas can and gasoline. Defendant then continued down Interstate Highway 26 until he saw McCoy's truck, driven by Pepion, on the side of the road. He exited his vehicle and saw Pepion dragging McCoy's body up a hillside into some brambles. Defendant then helped Pepion move the body further into the brambles. The two then drove the vehicles into Transylvania County, removed the license plate from McCoy's truck and set the truck on fire. Defendant also threw out a pizza box from his minivan, which smelled strongly of gasoline.
    A deputy sheriff responded to a call concerning a burning vehicle. He found the pizza box that defendant had discarded. The truck was completely burned.
    Defendant and Pepion drove back home. Along the way, Pepion threw the gun out of the window. It was never recovered. Later that day, police questioned Pepion about the whereabouts of McCoy. A detective inspected the minivan and noted a strong odor of fuel emanating from it. After searching the minivan, a label torn from the pizza box found at the scene of the burned truck was discoveredin the minivan.
    That afternoon, Pepion's mother drove Pepion and defendant to the Asheville airport, and they flew to Cleveland, Ohio. Defendant and Pepion then went to Browning, Montana to join Pepion's father.
    Authorities discovered shattered glass and a bullet in the church parking lot where McCoy had been shot. Shattered glass was also found on the shoulder of Interstate Highway 26 in Buncombe County where McCoy's body was found.
    Defendant's evidence tended to show that he had not planned to shoot and kill McCoy. He was overcome by his emotions when he witnessed the argument between Pepion and McCoy. Defendant did not know why he shot McCoy. He was subsequently arrested in Montana. He confessed to the police and showed them where the body of McCoy was hidden. Defendant was charged with and convicted of first- degree murder, under the felony murder rule based upon discharging a firearm into occupied property and robbery with a dangerous weapon. He was sentenced to life imprisonment without parole. Defendant appeals.

I.
    In his first assignment of error, defendant argues the trial court committed plain error in its re-instruction to the jury concerning the elements of the offense of discharging a weapon into occupied property as it pertained to the charge of first-degreemurder under the felony murder rule. We disagree.
    Defendant did not object to this instruction at trial. We therefore address it under the standard of plain error. Plain error is an error “'so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'” State v. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118 (1999), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681 (2000) (quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988)).
    The trial court gave its charge to the jury. The jury was excused from the courtroom. The judge then asked counsel if there were any objections to the charge. The prosecutor noted that the trial judge had given the jury instruction as to the first element of discharging a weapon into occupied property as “willfully, wantonly and intentionally [done.]” The instruction was in the conjunctive rather than the disjunctive. The trial court agreed to re-instruct the jury to correct this error. In re-instructing the jury, the judge charged that “[i]f the State does not prove all three of those things, then you could find him guilty under the first-degree felony murder rule with the underlying felony being the discharging a firearm into occupied property.” [Sic]. This re- instruction was also erroneous. Defendant does not contend that thejury instructions for the crime of felony murder based on robbery with a dangerous weapon was in any way erroneous.
    We hold that defendant has not shown plain error or that the jury would have reached a different verdict. The trial judge submitted a verdict sheet to the jury. The verdict sheet required that if jurors found defendant guilty of first-degree murder, they must state whether their verdict was based upon premeditation and deliberation or the felony murder rule. If the jury found defendant guilty under the felony murder rule, then they were required to state whether it was based upon the felony of discharging a firearm into occupied property or robbery with a dangerous weapon. The jury found defendant guilty under the felony murder rule based upon both discharging a firearm into occupied property and robbery with a dangerous weapon. Since the conviction for first-degree murder would have been supported by the robbery conviction alone, the erroneous instruction on the discharge of a firearm into occupied property could not have resulted in a different verdict. This assignment of error is without merit.
II.
    In his second assignment of error, defendant argues the trial court erred in allowing the prosecutor to make improper statements to the jury during closing arguments. We disagree.
    The prosecutor stated that: (1) the defense was running a“shell game” and “con game” for attempting to manipulate the evidence; (2) counsel for potential co-defendants and accessories were hovering like “buzzards” around the courtroom; and (3) he believed that defense witnesses had lied on the stand. Defendant did not object to the State's closing argument at the time it was made. He argues the trial court should have intervened ex mero motu. The standard of review is whether the argument was “so grossly improper that the trial court erred in failing to intervene ex mero motu.” State v. Trull, 349 N.C. 428, 451, 509 S.E.2d 178, 193 (1998), cert. denied, 528 U.S. 835, 145 L. Ed. 2d 80 (1999).
    “'Only an extreme impropriety on the part of the prosecutor will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken.'” State v. Davis, 353 N.C. 1, 31, 539 S.E.2d 243, 263 (2000), cert. denied, 534 U.S. 839, 151 L. Ed. 2d 55 (2001) (citations omitted). The control of jury arguments is within the discretion of the trial court and will not be reversed unless the remarks are “clearly calculated to prejudice the jury in its deliberations.” State v. Johnson, 298 N.C. 355, 369, 259 S.E.2d 752, 761 (1979). “A trial court is not required to intervene ex mero motu where a prosecutor makes comments during closing argument which are substantially correct 'shorthandsummaries of the law, even if slightly slanted toward the State's perspective.'” State v. Warren, 347 N.C. 309, 322, 492 S.E.2d 609, 616 (1997), cert. denied, 523 U.S. 1109, 140 L. Ed. 2d 818 (1998) (citations omitted).
    After a careful review of the entire transcript of the prosecutor's closing argument, we hold that although he used strong language, his argument was not so grossly improper that it was prejudicial. The trial court did not abuse its discretion in not intervening ex mero motu during the prosecution's closing argument. This assignment of error is without merit.
III.
    In his third assignment of error, defendant argues the trial court erred in denying his motion to dismiss based upon insufficiency of the evidence. This assignment of error is directed only to the charge of robbery with a dangerous weapon as a basis for felony murder. We disagree.
    In considering a motion to dismiss, the only issue for the trial court is whether there is substantial evidence of each essential element of the charged offense and of the defendant being the perpetrator. State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). The court must consider the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from that evidence. State v. Jaynes, 342 N.C. 249, 274, 464 S.E.2d 448, 463 (1995), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996). Contradictions and discrepancies in the evidence are resolved in favor of the State. State v. Gibson, 342 N.C. 142, 150, 463 S.E.2d 193, 199 (1995).
    The elements of armed robbery include: (1) the 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. N.C. Gen. Stat. § 14-87(a) (2001).
    Defendant asserts that the evidence shows that the taking of McCoy's property was done after the murder, as an afterthought. Our Supreme Court has held that the commission of armed robbery does not depend upon whether the threat or use of violence precedes or follows the taking of the victim's property. State v. Barden, 356 N.C. 316, 572 S.E.2d 108 (2002). Where there is a continuous transaction, the temporal order of the threat or use of a dangerous weapon and the taking is immaterial. Id. (citing State v. Rasor, 319 N.C. 577, 587, 356 S.E.2d 328, 335 (1987)). Further, when the theft and the force are aspects of a single transaction, it is immaterial whether the intention to commit the theft was formedbefore or after force was used upon the victim. State v. Fields, 315 N.C. 191, 337 S.E.2d 518 (1985). We therefore hold the trial court did not err in denying defendant's motion to dismiss. This argument is without merit.
IV.
    In his fourth assignment of error, defendant argues ineffective assistance of counsel in failing to move to dismiss all of the charges at the close of all the evidence. We disagree.
    In order to establish ineffective assistance of counsel, a defendant must show: (1) that his attorney's performance fell below an objective standard of reasonableness; and (2) that the defendant was prejudiced by his attorney's performance to the extent that there exists a reasonable probability that the result of the trial would have been different absent the error. State v. Jaynes, 353 N.C. 534, 547-48, 549 S.E.2d 179, 191 (2001), cert. denied, 535 U.S. 934, 152 L. Ed. 2d 220 (2002); Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984).
    Here, there was substantial evidence of all of the elements for the charge of first-degree murder based on the felony murder rule. Defendant himself admitted to most of the facts concerning McCoy's killing and the subsequent taking and burning of her truck. There was no real dispute concerning defendant's actions when he killed McCoy. Thus, defendant cannot show that if his attorney hadrenewed the motion to dismiss at the close of all the evidence, the trial court would have granted the motion and the verdict would have been different. This assignment of error is without merit.
V.
    In his fifth and final assignment of error, defendant argues the trial court erred in denying his motion to dismiss based on the State's use of the short-form murder indictment. Defendant concedes that this argument has been previously decided contrary to his position and is statutorily authorized by N.C. Gen. Stat. § 15- 144 (2001). See State v. Harris, 323 N.C. 112, 371 S.E.2d 689 (1988). We therefore do not examine this argument further and find it to be without merit.
    NO PREJUDICIAL ERROR.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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