An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1541


Filed: 7 October 2003


v .                         Cumberland County
                            No. 00 CRS 57640

    Appeal by defendant from judgment entered 23 April 2002 by Judge B. Craig Ellis in Cumberland County Superior Court. Heard in the Court of Appeals 16 September 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State.

    Thomas R. Sallenger for defendant-appellant.

    TYSON, Judge.

    Tyron Dwayne Byrd (“Defendant”) appeals from a jury's verdict convicting him of first-degree murder, robbery with a firearm, and conspiracy to commit robbery with a firearm. The jury recommended and the court sentenced defendant to life imprisonment without parole for the first-degree murder conviction. The court also sentenced defendant to a term of 36 months minimum imprisonment and 53 months maximum imprisonment for the conspiracy to commit robbery with a firearm conviction. The court arrested judgment on the robbery with a firearm conviction.

I. Background
    On the morning of 19 April 2000, Keith Hinnant (“victim”) left his home in a rented blue van. Later that day, victim's wife, MaryHinnant (“Mrs. Hinnant”) became concerned when her husband did not return home. She called his mother's house and the victim's cell phone, but could not locate him. She drove to places where victim frequented for about forty-five minutes but could not find him. Around 11:00 p.m., Mrs. Hinnant took a bath in the bathroom adjacent to her master bedroom. Her twenty-two year old son, Devon Scurry (“Scurry”), was asleep in the front bedroom. Mrs. Hinnant's three-year-old step-granddaughter, Lija, was asleep in the master bedroom.
    While bathing, Mrs. Hinnant heard knocking on the bedroom door and her husband's voice asking her to open the door. When she opened the door, a gun was put to her head and she was told to return to the bathroom. She complied. Mrs. Hinnant testified two men wearing masks with camouflage coverings on their faces were with her husband. Mrs. Hinnant became concerned for her husband and granddaughter and tried to leave the bathroom, but was told by one assailant to remain. Mrs. Hinnant watched through the doorway as her husband was shot. She observed her husband wounded and lying on the bed next to Lija. Lija began screaming very loudly and the assailants left the bedroom. Scurry woke up after hearing the shot and came out of his bedroom into the hall. The assailants bumped into him in the hallway as they were leaving the house. Scurry testified that they both were wearing masks and camouflage coverings. Both Mrs. Hinnant and Scurry testified that they did not get a good look at the two men and they could not identify them.
    Later, in the early morning of 20 April 2000, defendant and another man went to Reginald Harris's (“Harris”) house. Harris testified he had known defendant all his life. LaShawnda McFayden (“McFayden”), Harris' girlfriend, was present with Harris that night. She later identified the other man with defendant as Terrance Gibbs (“Gibbs”) from a photo lineup. Defendant asked Harris to give him and Gibbs a ride to Lake Rim. Gibbs' girlfriend was supposed to pick up defendant and Gibbs at Lake Rim. Harris and McFayden drove the two men to Lake Rim and dropped them off before anyone else arrived. Harris and McFayden waited with defendant and Gibbs for about five minutes. Once defendant and Gibbs exited the car, Harris and McFayden returned home. After their arrival at Harris' house, defendant called and asked Harris to wipe down the blue van that he had parked in Harris' neighbors' driveway. Harris did not wipe down the van as defendant had requested. A few days later, defendant told Harris to say nothing to police because “the only person that knows ain't here no more.”
    Leona Williamson (“Williamson”), defendant's ex-girlfriend, also testified for the State. Williamson and defendant had conceived a child together. Williamson testified that at about 4:00 a.m. on 20 April 2000, defendant came to her house. Defendant confessed to killing a man while attempting to rob him. Defendant told Williamson that a prostitute had told him about one of her clients with thirty thousand dollars in cash in a motel room. Defendant and another man went to the motel room but the victim did not have any money. The three men went to victim's house. Defendant described in detail the events to Williamson, including the wife in the bathroom that started yelling and a child in the room on the bed asleep. Defendant told Williamson he had shot the man in the chest three times, while his “homeboy trashed the room.” Defendant never told Williams the name of the other assailant, but referred to him as “homeboy.” After the shooting, defendant and his “homeboy” drove in the victim's rented blue van to Harris' house. Several days later, after Williamson expressed concern to defendant about the police contacting her, defendant told her that he “didn't do it” but that his “homeboy” had killed the man.
    Investigator Michael Corcione (“Officer Corcione”) testified and corroborated the story of the other witnesses. Officer Corcione testified that victim had rented a hotel room on 19 April 2000. As part of his investigation, Officer Corcione went to the home of defendant's friend, Angie Bragg, to question her about defendant in possession of arrest warrants. When defendant answered the door, Officer Corcione placed him under arrest. Officer Corcione searched defendant incident to the arrest and found a camouflaged scarf in his pocket. Fingerprints were lifted from items in the van, but none matched the defendant's fingerprints. Testimony revealed that several of the fingerprints were not of “testable quality.”
    At the close of the State's evidence, defendant's motion to dismiss all charges was denied. In his case-in-chief, defendant's only evidence consisted of three exhibits, that were introduced during the prosecution's case. The defense rested and the courtdenied defendant's motion to dismiss. The jury convicted defendant of first-degree murder under the felony murder rule, robbery with a firearm, and conspiracy to commit robbery with a firearm. Defendant appealed.
II. Issues
    Defendant assigns as error the trial court's: (1) denial of defendant's motion to dismiss the charges of first-degree murder and robbery with a firearm; (2) denial of defendant's motion to dismiss the charge of conspiracy to commit robbery with a firearm; and (3) submission to the jury an instruction on acting in concert.
III. Motion to Dismiss
    In a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State and give the State every reasonable inference to be drawn from the facts and evidence presented. State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998). The State must present substantial evidence of each element of the offense charged. Id. “The trial court should consider all evidence actually admitted, whether competent or not, that is favorable to the State.” State v. Jones, 342 N.C. 523, 540, 467 S.E.2d 12, 23 (1996).
    “If there is substantial evidence -- whether direct, circumstantial, or both -- to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.” State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988). Substantial evidence is defined as “relevant evidence which a reasonable mind could accept as adequate to support a conclusion.” Lee, 348 N.C. at 488, 501 S.E.2d at 343. “The evidence need only give rise to a reasonable inference of guilt for the case to be properly submitted to the jury.” State v. Barnett, 141 N.C. App. 378, 383, 540 S.E.2d 423, 427 (2000), aff'd, 354 N.C. 350, 554 S.E.2d 644 (2001).
A. First-Degree Murder and Robbery with a Firearm
    Defendant assigns error to the trial court's denial of his motion to dismiss the charges of first-degree murder and robbery with a firearm. “The elements necessary to prove felony murder are that the killing took place while the accused was perpetrating or attempting to perpetrate one of the enumerated felonies.” State v. Richardson, 341 N.C. 658, 666, 462 S.E.2d 492, 498 (1995). The enumerated felonies include: arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon. Id. The elements of robbery with a dangerous weapon include:         (1) the unlawful taking or attempted taking of personal property from another; (2) the possession, use or threatened use of firearms or other dangerous weapon, implement or means; and (3) danger or threat to the life of the victim. State v. Jarrett, 137 N.C. App. 256, 262, 527 S.E.2d 693, 697 (2000).
    Defendant contends that the evidence fails to sufficiently indicate his involvement in the crime. He argues that none of the evidence presented places him at the victim's house or in the victim's presence on 20 April 2000. The State's evidence tended toshow that victim was killed while defendant and another assailant attempted to rob him. Although the two eyewitnesses at the scene could not identify either of the two assailants, testimony revealed that defendant admitted to Williams that he had committed the crime. He admitted to using a gun in an attempt to get money from the victim. Defendant revealed specific and unique details of the crime to Williams, also tending to show his involvement.
    Testimony from Harris and McFayden showed that defendant was concerned about evidence in the rented blue van and asked Harris to “wipe it down.” Soon after the murder, defendant and a man, who was later identified as Gibbs, appeared at Harris' house and asked Harris for a ride. Later, defendant spoke with Harris and requested him to not reveal anything to the police. Physical evidence, including the camouflaged scarf found on defendant's person when he was arrested, also indicated defendant could have committed the murder and robbery. The scarf matched the description given by both Mrs. Hinnant and Scurry on the night victim was shot.
    Considering the evidence in the light most favorable to the State, there was sufficient evidence from which a reasonable juror could conclude that defendant was the perpetrator of the robbery and the murder of victim. The trial court properly denied defendant's motion to dismiss. This assignment of error is overruled.
B. Conspiracy to Commit Robbery with a Firearm
    Defendant assigns error to the trial court's denial of hismotion to dismiss the charge of conspiracy to commit robbery with a firearm. “A criminal conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means.” State v. Gibbs, 335 N.C. 1, 47, 436 S.E.2d 321, 347 (1993) (citations omitted). The parties do not have to agree in express terms, but “a mutual, implied understanding is sufficient . . . .” Id. “The existence of a conspiracy may be established by direct or circumstantial evidence.” Id. at 48, 436 S.E.2d at 348. The State does not need direct proof. The conspiracy can be established “by a number of indefinite acts . . . taken collectively, they point unerringly to the existence of a conspiracy.” Id.
    Defendant contends the State failed to offer any evidence to prove an agreement by defendant and any other person to commit robbery. The State's evidence tended to show defendant expressly admitted his plan to rob the victim. His admission to Williams included details of how the victim was selected based on a tip defendant had received from a prostitute. Defendant told Williams that he and another assailant went to victim's hotel room with the intent to rob him. When victim did not have any money in the hotel room, defendant and the other assailant drove victim to his residence.
    In addition to the express admission, the State's evidence also revealed that both assailants on the night of the murder wore camouflaged masks and covered their heads. Defendant and Gibbs appeared together at Harris' house asking for a ride to Lake Rimwhere they had arranged for Gibbs' girlfriend to pick them up.
    The evidence taken in the light most favorable to the State tends to show a plan, or at least an implied understanding, between defendant and Gibbs to commit the crime of robbery with a firearm. Based on the evidence presented to the jury, a reasonable juror could find that defendant conspired to commit robbery with a firearm. This assignment of error is overruled.
IV. Jury Instructions
    Defendant assigns error to the court's jury instruction on acting in concert. Defendant did not object at trial to this jury instruction. Our review is limited to a “plain error standard, under which reversal is justified when the claimed error is so basic, prejudicial, and lacking in its elements that justice was not done.” State v. Prevatte, 356 N.C. 178, 258, 570 S.E.2d 440, 484 (2002). Our courts have held that “the plain error rule applies only in truly exceptional cases. Before deciding that an error by the trial court amounts to 'plain error,' the appellate court must be convinced that absent the error the jury probably would have reached a different verdict.” State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986).
    Our courts have summarized acting in concert as follows:

        If two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose . . . or as a natural and probable consequence thereof.

State v. Erlewine, 328 N.C. 626, 637, 403 S.E.2d 280, 286 (1991)(citation omitted). To justify a jury instruction on acting in concert, the State must present evidence tending to show: (1) defendant was present at the scene of the crime, and (2) he acted together with another who committed acts necessary to constitute the crime pursuant to a common plan or purpose. State v. Robinson, 83 N.C. App. 146, 148, 349 S.E.2d 317, 319 (1986).
    The State's evidence tended to show that defendant was at victim's house and that defendant acted with another in the commission of the murder and robbery. If the instruction had not been given, the jury still could have reached the same verdict. The jury instruction on acting in concert was proper. The trial court did not commit plain error in giving the instruction. This assignment of error is overruled.

V. Conclusion
    The State's evidence at trial could allow a reasonable juror to conclude that defendant committed first-degree murder and robbery with a firearm. The evidence also tended to show that defendant conspired to commit the robbery. The trial court properly denied defendant's motion to dismiss. We find no plain error in the jury instruction on acting in concert. We find no error in the jury's verdict or judgment of the court.
    No Error.
    Judges WYNN and LEVINSON concur.
    Report per Rule 30(e).

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