An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1089

NORTH CAROLINA COURT OF APPEALS

Filed: 1 June 2004

STATE OF NORTH CAROLINA

     v.                        Northampton County
                            Nos. 01 CRS 1024-26
TOBY MONTAGO GARY
    

    Appeal by defendant from judgments dated 21 February 2003 by Judge Cy A. Grant in Northampton County Superior Court. Heard in the Court of Appeals 12 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Diane A. Reeves, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for defendant-appellant.

    BRYANT, Judge.

    Toby Montago Gary (defendant) appeals judgments dated 21 February 2003 entered consistent with a jury verdict finding him guilty of first-degree murder, attempted robbery with a firearm, and conspiracy to commit robbery with a firearm.
    At trial, the State presented evidence tending to show that in May 2001, defendant, a resident of Orlando, Florida came to visit family and friends in the Murfreesboro, North Carolina area. During this visit, defendant stayed with his friend Lawrence Hill and his friend's son Cody Hill (Hill). On the evening of 23 May 2001, defendant approached Hill and solicited his help in robbing a bank. The following morning defendant, Hill, and defendant'sfriend Willie Jackson, drove to Conway, North Carolina. With the help of Lamont Williams, they obtained a gun from Terrence Powell. Later that day, defendant drove Hill and Jackson to the First Citizen's Bank in Conway. Defendant gave Hill a stocking cap and told him to “go help Willie.” Defendant told Hill and Jackson that he would wait for them at the flea market and drove away in that direction.
    Outside of the bank, Hill and Jackson encountered and had a brief conversation with Mae Woodard, a middle school teacher who knew both of them well. Hill and Jackson then entered the bank and attempted to commit an armed robbery. Jackson waived a gun in the air and shouted: “Don't anybody press the f_ing button.” Jackson approached the teller window where Carolyn Watson was working, and thereafter witnesses heard a gunshot and saw Carolyn Watson fall to the floor. Hill and Jackson then ran out of the building without taking any money. Once outside, Hill and Jackson ran down an alley and around some buildings to a nearby flea market, where defendant was parked. When Hill and Jackson got into the car, defendant asked, “Where's the f_ing money, where's the f_ing money at?” Hill urged defendant, “Toby let's go, let's go” and they “ran down the road” in the car.
    Defendant, Hill, and Jackson drove to Hill's house and met Lamont Williams, who drove them all to Roanoke Rapids. Defendant indicated to Hill and Jackson that he wanted them to rob another bank; however, because it was after 5:00 p.m., the banks were closed. Thereafter, near the Virginia State line, Williams' carran out of gas. The four men went to Williams' house, where Hill and Jackson remained until the police arrived.
    Chief Ted Sumner of the Gaston Police Department testified that he picked up defendant on the night of 24 May 2001. Defendant then directed Chief Sumner to a house, which was approximately three-and-a-half miles away, where Chief Sumner located Hill and Jackson. Defendant was not arrested and therefore was not searched, patted down, or handcuffed before he got into Chief Sumner's police vehicle. Jackson, who was placed under arrest, was patted down and restrained with handcuffs behind his back before being placed in the police vehicle. A gun was later found in the police vehicle beneath the seat where defendant had been sitting. In the subsequent SBI lab test, the gun was found to be consistent with having fired the bullet removed from Carolyn Watson's body.
    The bank's security camera recorded the events inside the bank on 24 May 2001. Mae Woodard testified that she had spoken to Hill and Jackson moments before the attempted robbery, and she identified them as the perpetrators on the bank's videotape recording. The autopsy on Carolyn Watson revealed she bled to death as a result of a gunshot wound to the left side of her neck.

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    The issues are whether: (I) double jeopardy required the trial court to arrest judgment on defendant's conviction of attempted robbery with a firearm; and (II) the trial court erred in instructing the jury.
I
    Defendant first argues that his constitutional right to be free from double jeopardy was violated when the trial court refused to arrest judgment on his conviction for attempted robbery with a dangerous weapon because the attempted robbery conviction was the underlying felony used to establish first-degree murder under the felony murder rule. The State argues that a defendant can be convicted of both first-degree murder and an underlying felony. As conceded by the State, however, two punishments for the same crime violates the principles of double jeopardy. See, e.g., State v. Wilson, 345 N.C. 119, 122, 478 S.E.2d 507, 510 (1996) (“when the sole theory of [defendant's conviction of] first-degree murder is the felony murder rule, a defendant cannot be sentenced on the underlying felony in addition to the sentence for first-degree murder”); State v. Ocasio, 344 N.C. 568, 581, 476 S.E.2d 281, 288 (1996) (“the trial court erred in failing to arrest judgments on the first-degree kidnapping convictions when these convictions were the underlying felonies for the felony murder convictions”). Accordingly, the judgment must be vacated with respect to defendant's conviction of attempted robbery with a dangerous weapon.
II

    Defendant next contends the trial court erred in instructing the jury that “flight may be considered . . . with all other facts and circumstances . . . in determining . . . an admission or a show of consciousness of guilt.” As defendant failed to object to this instruction at trial, he seeks plain error review of this issue onappeal.
    “[T]o reach the level of 'plain error' . . . , the error in the trial court's jury instructions must be '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. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993) (citation omitted). “A trial court may not instruct a jury on [the] defendant's flight unless there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged.” State v. King, 343 N.C. 29, 38, 468 S.E.2d 232, 238 (1996). The test for finding a flight instruction applicable is twofold: (1) whether the defendant left the scene of a crime; and (2) whether the defendant took steps to avoid apprehension. Id.
    After a review of the record before us, we conclude that the evidence tended to show that defendant left the scene with the intention of avoiding apprehension. First, defendant made arrangements with Hill and Jackson to meet at a designated spot following the planned bank robbery. This meeting place - the flea market - was located far enough from the bank as to avoid detection by witnesses. Further, in their escape, Hill and Jackson ran around the bank and through an alley to get to the flea market. The flea market was a convenient departure point for getting away from the scene of the crime, which defendant, as the driver, promptly did.
    We are not persuaded by defendant's assertion that “[t]here is no evidence that [he] avoided the police, that he tried to hide, that he made any efforts to change his appearance, to 'cover his tracks,' or avoid capture.” According to defendant, “[h]e was simply, . . . driving around attempting to perpetrate other crimes.” If anything, evidence indicating that defendant attempted to perpetrate other crimes supports the trial court's finding that defendant fled, since a person, who is in the process of attempting to commit other crimes, would be making an effort to evade authorities. Additionally, once defendant learned that Hill and Jackson had been identified as the perpetrators of the attempted robbery, he left them at Williams' house and was picked up more than three miles away. This, too, is evidence of defendant's intention to dissociate himself with the known perpetrators of the crime and to avoid apprehension. Finally, there was evidence that defendant attempted to conceal his weapon underneath the seat in the police vehicle.
    In conclusion, we find the evidence was sufficient to warrant the jury instruction on flight; however, assuming arguendo that the trial court did err in instructing the jury as to flight, on the evidence of record, defendant has not shown the level of prejudice required for plain error.
    In light of the foregoing, the judgment on the attempted robbery with a dangerous weapon conviction is vacated. As to the two remaining judgments, we hold that defendant received a fair trial, free from prejudicial error.
    Vacated in part and no error in part.    Chief Judge MARTIN and Judge McGEE concur.
    Report per Rule 30(e).

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