An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-914

NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2003

STATE OF NORTH CAROLINA

    v.                        Gaston County
                            Nos. 01 CRS 61796 & 19554

TOMMY LEE BURTS

    Appeal by defendant from judgment filed 27 February 2002 by Judge F. Donald Bridges in Gaston County Superior Court. Heard in the Court of Appeals 16 April 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Ted R. Williams, for the State.

    Kay S. Murray for defendant appellant.

    BRYANT, Judge.

    Tommy Lee Burts (defendant) appeals from a judgment filed 27 February 2002 entered consistent with jury verdicts finding him guilty of carrying a concealed weapon and robbery with a dangerous weapon.
    The State's evidence presented at trial tends to show that, on 22 August 2001, a woman approached Willie James Broner, Jr. (Broner) and engaged him in small talk. Defendant approached the pair and asked Broner for a light for a cigarette, but Broner did not have one. Defendant then pulled out a gun, cocked it, put a bullet in the chamber, and commanded Broner to give defendant his money or wallet. Broner gave defendant all of the money in hiswallet, totaling seven dollars. Defendant took the money and walked away.
    Broner flagged down a patrol car driven by Officer J. L. Sparrow (Officer Sparrow) of the Gastonia Police Department. Broner described the perpetrator to Officer Sparrow as a light- skinned black male, large in build, and wearing a grey shirt. Officer Sparrow drove a few blocks and found defendant, who matched the description, walking down the street. Officer Sparrow patted down defendant and found a .380 handgun stuck inside defendant's waistband. The gun was in a “locked back state” with three .380 bullets in the magazine. This meant the gun could not have been fired at the time it was found but would require only about a second to load a bullet into the chamber and render the gun able to fire. Officer Sparrow returned defendant to the crime scene where Broner identified defendant as the robber. Following the identification, Officer Sparrow arrested defendant and conducted a further search during which he found seven dollars on defendant's person. Before trial, Officer Sparrow tested defendant's gun by firing it. He determined the gun would fire the bullets and eject the shells in the magazine.
    Defendant testified, on his own behalf, that he came upon Broner and the female, whom he identified as an acquaintance, as they were arguing. When defendant escorted the female away from Broner, he saw Broner “fishing around in his pockets.” Defendant pulled out his gun and told Broner to leave them alone. Defendant and the woman then proceeded to leave the scene. Defendantmaintained that he did not rob or take anything from Broner.
    The trial court instructed the jury, over defendant's objection, that a handgun was a “deadly or dangerous weapon.” During its deliberations, the jury asked the trial court if it was required to reach a unanimous verdict on the robbery with a dangerous weapon charge before moving to lesser-included offenses. The trial court responded, without objection, that it was up to the jury to decide the order in which it proceeded as long as the verdict was unanimous.

________________________________

    The issues are whether: (I) the State presented substantial evidence Broner's life was threatened; (II) it was proper to instruct the jury that a handgun is a deadly or dangerous weapon; and (III) the trial court's response to the jury's question was confusing or coercive of a verdict such that it resulted in plain error.
I

    Defendant first contends the trial court erred by denying his motion to dismiss for insufficient evidence. A motion to dismiss requires the trial court to determine whether the State has presented substantial evidence of each element of the charged offense and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). The trial court must consider the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn therefrom. State v. Powell, 299 N.C. 95, 99, 261S.E.2d 114, 117 (1980). If a reasonable inference of the defendant's guilt may be deduced from the evidence, then the trial court must deny the motion to dismiss and submit the case to the jury even though the evidence may also reasonably support an inference of innocence. State v. Alexander, 337 N.C. 182, 187, 446 S.E.2d 83, 86 (1994).
    The essential elements of robbery with a dangerous weapon are: (1) the unlawful taking or attempted taking of personal property from another; (2) the possession, use, or threatened use of a firearm or other dangerous weapon; and (3) danger or threat to the life of the victim. See State v. Moore, 279 N.C. 455, 458, 183 S.E.2d 546, 548 (1971). To overcome a motion to dismiss a charge of robbery with a dangerous weapon, the State must produce evidence sufficient to show that the victim of an unlawful taking or attempted taking of personal property was endangered or threatened by the use or threatened use of a firearm or other dangerous weapon. See State v. Joyner, 295 N.C. 55, 63, 243 S.E.2d 367, 373 (1978).
    Defendant argues the evidence fails to establish that Broner's life was threatened or endangered because defendant's gun was not in a position to be fired. He bases this argument on evidence that when the gun was recovered by Officer Sparrow no bullet was actually in the chamber to be fired, although bullets were in the magazine.
    To assist with resolving the question of the sufficiency of the evidence to establish the element of whether the defendantemployed a firearm or other dangerous weapon endangering or threatening the life of the victim, our Supreme Court established certain rules in State v. Allen, 317 N.C. 119, 124-25, 343 S.E.2d 893, 897 (1986). Succinctly stated, a motion to dismiss may be allowed only when all of the evidence affirmatively shows that what appeared to be a firearm or other dangerous instrument was in fact not capable of endangering or threatening the life of another. Id. In all other cases, the motion should be denied and the charge submitted to the jury. See id. The case at bar is clearly not one in which all of the evidence shows that the firearm pointed at the victim by defendant was not capable of endangering or threatening the victim's life. The State's evidence showed at the time of the robbery, defendant produced the weapon, cocked it and caused a bullet to be put in the chamber. There was also evidence that Officer Sparrow tested the weapon and found it to be functional. Thus, there was evidence the gun was capable of threatening or endangering Broner's life. The trial court therefore properly denied defendant's motion to dismiss.
II

    Defendant next contends the trial court erred by peremptorily instructing the jury that a handgun is a dangerous or deadly weapon. He argues there was conflicting evidence, in the form of the Officer Sparrow's testimony regarding the gun being in a locked back position, as to whether the handgun was dangerous or deadly. Defendant also cites his testimony that he merely “displayed” the gun in self-defense. We reject this contention.    A pistol is considered a deadly weapon as a matter of law. State v. Reives, 29 N.C. App. 11, 12, 222 S.E.2d 727, 728 (1976); see also N.C.G.S. § 14-87 (2001) (robbery with a firearm or other dangerous weapon). Moreover, as a general rule, when a robbery is committed with what appeared to the victim to be a firearm or other dangerous weapon capable of endangering or threatening the life of another, and there is no evidence to the contrary, there is a mandatory presumption that a weapon is a deadly weapon. State v. Joyner, 312 N.C. 779, 782, 324 S.E.2d 841, 844 (1985). All of the evidence in this case shows that defendant's gun was loaded with ammunition and was operational. In addition, there is no evidence the gun was either incapable of being fired or was not a real firearm. Defendant himself admitted on cross-examination that the gun was loaded with ammunition and that it was operational. Thus, there was no contention that the handgun was not a functioning firearm, and therefore, the trial court did not err in instructing the jury that the handgun was a dangerous weapon.
III

    Defendant's final contention is that the trial court committed plain error in its instructions responding to the jury's inquiry. After retiring to deliberate, the jury returned to the courtroom and asked the following question:
        In the event the jury cannot unanimously agree to guilty of robbery with a dangerous weapon, do we, the jury, move on to guilty of assault with a deadly weapon or must we first be unanimous to a yay [sic] or nay to option one prior to moving on to option two?

The trial court responded:
            Now with regard to that question, remember again what I told you; that a verdict is not a verdict until all twelve of you have agreed unanimously as to what your verdict shall be. You may not render a verdict, any verdict, by majority vote. However, as to the order in which you approach your consideration of the possible verdicts on the verdict sheet, I am going to leave that to you. You may start at the top and work your way to the bottom or you can start at the bottom and work your way to the top, or you can start in the middle and work both ways. But you must consider each of the possible verdicts on the verdict sheet and you must agree unanimously as to each of those possible verdicts on the verdict sheet and then choose only one possible verdict on the verdict sheet. Whatever your choice is, you must agree unanimously on that choice. So, in other words, it does not matter in which order you address your possible considerations, but you must give fair and careful consideration to each of those possible verdicts and you must agree unanimously on what your verdict shall be among those possible verdicts. So with that I will ask you to go back and resume your deliberations.

The trial court offered the parties the opportunity to make corrections to the court's re-instruction. Defendant declined the opportunity.     Only on appeal does defendant argue the instructions were confusing because, in the original charge, the court directed the jury to consider the charge of robbery with a dangerous weapon first before proceeding to consider lesser charges. He also argues the instruction was coercive because it led the jury to believe it must render a verdict.
    Plain error may not be found unless it is shown that absent the instructional error, the jury probably would have reached a different verdict. See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). The burden of showing plain error isplaced on the defendant because the defendant, as here, could have prevented or corrected any error by objecting when offered the opportunity by the trial court. State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). We find nothing confusing in this instruction rising to the level of plain error, nor is there anything in the instruction that could be construed as coercing a verdict. Accordingly, the trial court did not commit plain error.
    No error.
    Judges HUNTER and ELMORE concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***