State v Ginn, (02-1190) 05/06/2003

Appeal by defendant from judgment entered 21 March 2002 by Judge Dennis J. Winner in Haywood County Superior Court. Heard in the Court of Appeals 14 April 2003.

Attorney General Roy Cooper, by Special Deputy Attorney General Gary R. Govert, for the State.

Hall & Hall, by Douglas L. Hall, for defendant appellant.

ELMORE, Judge.

    Defendant appeals from a judgment sentencing him to an active term of fifty to sixty-nine months on a jury conviction of robbery with a dangerous weapon.
    The State presented evidence tending to show that two men wearing white cloth masks over their faces robbed the Shell Convenience King convenience store in Clyde, N.C. shortly before midnight on 8 January 2002. One of the men, who was carrying a gun described as old and discolored by rust, grabbed a store employee, shoved her toward the counter, and ordered her to open the cash register. The employee opened the drawer and the man withdrew all of the paper currency from the drawer. Both of the men exitedthrough the same door they entered. The store manager subsequently determined that approximately one hundred twenty-two dollars ($122.00) had been taken from the register.
    A person parked in the parking lot of the Shell Convenience King about midnight on 8 January 2002 saw a man, armed with a gun, force the clerk to open the register. He subsequently saw two men come from the direction of the Convenience King and get into a Ford Explorer automobile.
    Law enforcement officers subsequently executed a traffic stop of a Ford Explorer that night. Ryan Shaw (Shaw), Richard Ginn (defendant), Michael Lattner (Lattner) and Maria Lopez (Lopez), who was the driver, were the occupants of the vehicle. Defendant, who was seated in the front passenger seat, was searched and one hundred nineteen dollars ($119.00) in cash was found on his person. A rust-colored semi-automatic handgun and two pieces of a ripped white tee shirt were found in the rear passenger area of the vehicle. Two dollar bills were found laying on the front passenger floorboard, and some dollar bills were found in the console area. The store clerk subsequently identified Shaw as the gunman from a photograph lineup. She also identified the gun as the one wielded by her assailant.
    Shaw testified on behalf of the State that he pled guilty to robbing the Shell Convenience King. He further testified that he shared a home with defendant, Lattner, and Lopez. The four of them were at the residence earlier in the evening on 8 January 2002 when he suggested to the others that they take a trip to Florida. Theirconversation subsequently turned to robbing a store. Defendant said, “If you do the first one, I'll do the second one.” They all packed their clothes and got into defendant's Ford Explorer. Lopez drove the vehicle with defendant seated in the front passenger seat, and Lattner and Shaw sharing the rear seat. Shaw directed Lopez to park the vehicle in the parking lot of a Walmart store near the Shell Convenience King. Shaw ripped some tee shirts to make masks. Shaw and Lattner exited the vehicle and executed the robbery, taking only bills from the register. Upon returning to the vehicle, Shaw handed defendant the money.
    Defendant presented the testimony of his father and stepmother that Shaw told them that defendant had nothing to do with the robbery. Defendant testified that he knew nothing about the robbery. Lopez, who is defendant's girlfriend, also denied knowledge of any plan to rob the store or any robbery.
    Defendant brings forward four assignments of error.

First, defendant contends that the court committed plain error by failing to submit the lesser offenses of felonious larceny from the person and common law robbery. Defendant argues that based upon the evidence presented, a jury could have found commission of the lesser offenses.
We disagree. When the evidence is positive and unequivocal as to each element of robbery with a dangerous weapon, the court does not err by failing to submit lesser offenses. State v. Peacock, 313 N.C. 554, 562, 330 S.E.2d 190, 195 (1985). The essentialelements 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; (3) danger or threat to the life of the victim. State v. Moore, 279 N.C. 455, 458, 183 S.E.2d 546, 548 (1971). The distinguishing element between robbery with a dangerous weapon and the lesser offenses of common law robbery and larceny is the use of a firearm endangering or threatening the life of the victim. State v. Cummings, 346 N.C. 291, 325-27, 488 S.E.2d 550, 570-71 (1997), cert. denied, 522 U.S. 1092, 139 L. Ed. 2d 873 (1998). Here, the State's evidence is positive and uncontradicted as to the use of a firearm to consummate the offense. No evidence was offered that the handgun was not real or that it was not a danger or threat to the life of the victim. This assignment of error is overruled.

Second, defendant contends that the court committed plain error by failing to instruct on the defense of voluntary intoxication. He argues that this instruction was required by evidence that defendant and his cohorts had consumed a case of beer and two bottles of liquor within three hours of the time of the robbery and that defendant was placed in the “drunk tank” when he was arrested.
An instruction on voluntary intoxication is required only when the defendant presents evidence that he was “so completely intoxicated as to be utterly unable to form the specific intent necessary at the time the crime was committed.” State v. Williams,308 N.C. 47, 71, 301 S.E.2d 335, 350, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 177 (1983). Mere evidence of intoxication is insufficient. State v. Brown, 335 N.C. 477, 492, 439 S.E.2d 589, 598 (1994). Here, defendant testified that he was intoxicated. However, he did not present any evidence to show that his intoxication rendered him unable to form the requisite specific intent. This assignment of error is overruled.

    Third, defendant contends that the court committed plain error by stating to the jury that if it did not reach a unanimous verdict, then another panel of twelve jurors would have to be selected and by instructing the jury pursuant to section 15A-1235 of the General Statutes, which authorizes the trial judge to encourage agreement among jurors to the extent their conscience will allow.
    The record in the present case shows that the jury retired to deliberate at 12:34 p.m., recessed for a lunch break, resumed deliberations at 2:00 p.m., returned to the courtroom to view the exhibits again, and continued to deliberate until the court recessed for the evening at an unspecified time. The next morning, before releasing the jurors to resume deliberations, the court made the statement and gave the charge in question. The court noted to the jury that there are understandable reasons for difficulty in reaching agreement among twelve individuals of diverse background and experience. The trial court also noted:
        [I]f you do not arrive at a unanimous verdict, as long as this is still a case . . . thentwelve other jurors will have to be selected and they won't know each other or a few of them might, but won't know each other either and they'll come from equally different backgrounds and that will happen over and over again until some jury finally resolves it.

The court proceeded to charge the jury in accordance with section 15A-1235, holding closely to the statutory language. The court concluded its instruction with the following statement:
        Please be mindful that I'm in no way trying to force or coerce you to reach     a verdict. I recognize the fact that there are sometimes reasons why jurors cannot agree. Through these additional instructions I've just given you, I really want to emphasize that it's your duty to do whatever you can to reason the matter over together as reasonable people and to reconcile your differences, if such is possible, without the surrender of conscientious convictions and therefore, to reach a verdict.

The jury resumed deliberations at 9:43 a.m. and returned with a verdict at 10:20 a.m.
    The decision whether or not to charge a jury pursuant to N.C. Gen. Stat. § 15A-1235 (2001) is within the discretion of the trial judge. State v. Williams, 315 N.C. 310, 326-27, 338 S.E.2d 75, 85 (1986). In giving the charge, the court may not instruct a jury that its failure to agree may result in having to retry the case. State v. Easterling, 300 N.C. 594, 608, 268 S.E.2d 800, 809 (1980). However, the instruction is not reversible error unless it is reasonably possible that a different result would have occurred without the error. Id. at 608-09, 268 S.E.2d 809. Under plain error review, the standard is whether a different result probably would have occurred absent the error. State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986).
    The present facts are analogous to Easterling, in which theSupreme Court held that a similar instruction by the trial court was not prejudicial error when (1) the record failed to contain any indication that the jury was deadlocked, and (2) the court's charge made it clear to the jurors that they were not to surrender any conscientious belief in order to arrive at a verdict. Absent from the present record is any statement or indication by the jury that it was deadlocked or unable to render a verdict. The court's instructions mirror the instructions found curative by the Court in Easterling and made it clear to the jurors not to surrender their beliefs for the sake of reaching a verdict. Under these circumstances, we conclude the court's instructions did not coerce a verdict.

    Defendant's final contention is that the jury's verdict is not supported by the evidence. This contention is not properly pesented. Issues not presented to the trial court for adjudication
will not be considered for the first time on appeal. State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991). Although the assignment of error upon which this contention is based lists a transcript page reference reflecting the receipt of the jury's verdict, this transcript page does not contain, and we cannot find anywhere else in the transcript or record, any motion by defendant to set aside the verdict. This assignment of error is therefore dismissed. See State v. Nobles, 350 N.C. 483, 505-06, 515 S.E.2d 885, 899 (1999).
    We hold defendant received a fair trial, free of prejudicialerror.
    No error.
    Judges HUNTER and BRYANT concur.
    Report per Rule 30(e).

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