State v Bitting, (02-1329) 08/05/2003

Appeal by defendant from judgments entered 25 January 2002 by Judge Jerry Cash Martin in Superior Court, Forsyth County. Heard in the Court of Appeals 21 July 2003.

Attorney General Roy Cooper, by Special Deputy Attorney General Elizabeth Leonard McKay, for the State.

Jon W. Myers for defendant-appellant.

McGEE, Judge.

    Defendant appeals his convictions for attempted robbery with a dangerous weapon and possession of a handgun by a convicted felon. We find no prejudicial error and affirm the judgments of the trial court.
    The State's evidence tended to show that on the afternoon of 19 December 2000, Jose Ramon Orellana was working at La Fiesta convenience store at 4833 Old Rural Hall Road in Winston-Salem when two black males entered the store wearing dark clothing and "half facial masks." Both men were carrying a pistol. After announcing, "This is a robbery," both men shot at Orellana, who returned fire with a .357 caliber handgun and ducked behind a counter. After thetwo men fled the store, Orellana called 911.
    Police officers responding to the call found Kalil Porter (Kalil) in the parking lot bleeding severely from a bullet wound to the head. Kalil identified his accomplice to the police as "my cousin, Marchello Bittings." Inside the store, the officers found a nine-millimeter handgun on the floor in front of the counter, shell casings and lead projectile fragments.
    The police went to defendant's residence, located a few miles from La Fiesta. A red Ford Escort was parked in the driveway of the residence. After ringing the doorbell, banging on the front door and calling defendant's name for five to ten minutes, a special enforcement team entered the house and saw defendant run from the back bedroom. Defendant heeded the officers' command to stop. Inside the residence, the officers found a black leather jacket, a dark blue toboggan, and a cloth work glove. Defendant told police that he had worn the jacket, toboggan, and glove to La Fiesta. Lab tests revealed the presence of gun residue on the back of the glove. Police also found a loaded .22 caliber semiautomatic pistol under the driver's seat of the red Ford Escort with two of eleven bullets missing from the gun's magazine.
    Defendant was questioned at his residence and he initially denied having any knowledge of the robbery. He then acknowledged being with Kalil but denied knowing that he intended to rob the store. Defendant next claimed he knew the robbery was going to occur but "didn't know it was going to go down like that." During an interview at the police station, defendant stated that LashunPorter drove him and Kalil to Old Rural Hall Road. He and Kalil used a pay phone before going to La Fiesta to buy cigars. Kalil walked into the store first, four or five steps ahead of defendant. When defendant entered the store, the owner was already shooting at Kalil. Defendant did not know that Kalil intended to rob the store and he denied having a gun. Upon further questioning, defendant admitted he and Kalil planned the robbery, insisting it was Kalil's idea "and that he only went with [Kalil] to cover his back." Defendant again denied having a gun, claiming instead that he had reached into his pocket to retrieve a glove. When asked if the police should believe that he paused to put on a glove while the store owner was shooting at him, defendant said, “Yes.” At one point in the interview, defendant mentioned putting a gun in his pocket, but then clarified that he meant to say "glove."
    Defendant first argues that the trial court erred in refusing to instruct the jury that his "false, contradictory, and conflicting statements" to police should be "considered as circumstances tending to reflect the mental processes of a person possessed of a guilty conscience seeking to divert suspicion and to exculpate himself." At the charge conference, the trial court gave the following explanation for its decision:
        THE COURT: . . . I would prefer not to make reference to false, contradictory, or conflicting statement. I'd prefer to stay neutral in this, and it's an instruction that just refers to -- it seems to let the judge give some weight or authority to a determination that the statements made by the defendant were contradictory. I'm going to deny the request to charge on that instruction; however, if counsel wants toargue that, it seems to be fair game for argument, that is, the effect of any false, contradictory, or conflicting statements made by the defendant.

Defendant contends he was entitled to the instruction, because his statements to police "ran the full spectrum from denial to admission of intent to commit robbery" and thus "blatantly contradict[ed] each other." Defendant insists that his "false, contradictory, and conflicting statements in this case can, and should have been, considered as circumstances tending to reflect the mental processes of a person possessed of a guilty conscience seeking to divert suspicion and exculpate himself. Accordingly, the trial court should have allowed the instruction." Defendant posits that the court's ruling was reversible error "[r]egardless of defense counsel's motive for requesting the instruction[.]"
    As shown above, defendant has not suggested how he was prejudiced by the trial court's refusal to give the requested instruction. See N.C. Gen. Stat. § 15A-1443(a) (2001) (requiring a "reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial"). "The burden is on defendant not only to show error, but also to show that the error complained of affected the result of the trial adversely to [defendant]." State v. Winecoff, 280 N.C. 420, 424, 186 S.E.2d 6, 8 (1972) (citing State v. Woolard, 260 N.C. 133, 132 S.E. 2d 364 (1963)). State v. Myers, 309 N.C. 78, 88, 305 S.E.2d 506, 512 (1983) (citing State v. Easterling, 300 N.C. 594, 609, 268 S.E.2d 800, 809 (1980)). The requested instruction would have called the jurors' attention to defendant's inconsistentstatements to police and would have allowed them to consider these inconsistencies as evidence of his guilty conscience. Inasmuch as it would have emphasized to the jury the inculpatory value of an aspect of the State's proffer, the omission of this instruction would appear to favor defendant. Absent any showing of prejudice by defendant, we overrule this assignment of error. See State v. Brown, 332 N.C. 262, 273, 420 S.E.2d 147, 153-54 (1992).
    Defendant next argues the trial court failed to find as a mitigating factor "that he had the support of his family and other local community members." The trial court sentenced defendant within the applicable presumptive range for his offenses. "[W]here the trial court imposes sentences within the presumptive range for all offenses of which defendant was convicted, [it] is not obligated to make findings regarding aggravating and mitigating factors." State v. Rich, 132 N.C. App. 440, 452-453, 512 S.E.2d 441, 450 (1999).
    The record on appeal contains additional assignments of error not addressed in defendant's brief to this Court. Pursuant to N.C.R. App. P. 28(b)(6), we deem them abandoned.
    No error.
    Judges HUDSON and GEER concur.
    Report per Rule 30(e).

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