An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1227

NORTH CAROLINA COURT OF APPEALS

Filed: 3 August 2004

STATE OF NORTH CAROLINA

v .                                     Gaston County
                                        No. 02CRS64228< br> NOAH GERALD CAIN

    Appeal by defendant from judgment entered 13 May 2003 by Judge J. Gentry Caudill in Gaston County Superior Court. Heard in the Court of Appeals 7 June 2004.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Jason T. Campbell, for the State.

    Leslie C. Rawls for defendant-appellant.

    HUNTER, Judge.

    Noah Gerald Cain (“defendant”) appeals from a judgment filed on 13 May 2003 entered consistent with a jury verdict finding him guilty of robbery with a firearm. As a consequence of this conviction, defendant was sentenced to forty-five to sixty-three months incarceration. We conclude that the trial court did not err by denying defendant's request for specific instructions and that defendant did not receive ineffective assistance of counsel.
    The evidence tends to show that defendant admitted to committing robbery at a Subway restaurant in Belmont, North Carolina on 21 August 2002. Defendant was an unemployed twenty-six year old man who was separated from his wife. They had two children and defendant testified that he had to do somethingbecause his wife had told him that she and the children were “kind of low on supplies”. On the night of the robbery, defendant went to his friend's house and collected a gun, a black glove or gloves, a black ski mask and a long black shirt that he had stored there. He wore all black clothing and carried the gun, gloves and ski mask in a brown McDonald's bag. He asked a friend for a ride and was dropped off near the shopping center where the Subway restaurant was located. Defendant walked to Subway where Cliffton Riggins (“Riggins”) was working as the night manager.
    Shortly before midnight, Riggins was doing multiple tasks before closing up the shop and defendant grabbed him at the back of the restaurant near the door. Defendant wore the black ski mask and grabbed Riggins by taking his arm and putting it behind Riggins' back. He told Riggins that he was not going to hurt him and that he just wanted the money. Riggins testified that he saw defendant's gun when defendant put the gun up to his neck, but defendant could not recall if he touched Riggins with the gun or not. Defendant gave Riggins the McDonald's bag and walked him to the front of the store. Riggins placed approximately $145.00 into the McDonald's bag from the cash register, as well as a $2.00 bill and a $2.00 roll of nickels. Riggins testified that he added the roll of nickels to the bag because “[i]t's just something unique. Not everybody running around has a $2 roll of nickles [sic] and a $2 bill and $145 at 12 o'clock at night.”
    After defendant instructed Riggins to give him the McDonald's bag, he asked Riggins if the freezer could open from the inside. When Riggins said that it could, defendant told him to get in the freezer and count to thirty before coming out. Riggins stayed in the freezer for several minutes, came out and saw that Subway's telephone had been ripped from the wall. He ran next door to Dominos Pizza and shouted for them to call the police. Mount Holly Police Officer Cory Fox (“Officer Fox”) and Belmont Police Sergeant Gladys Grier (“Sergeant Grier”) responded. Officer Fox went to Subway and talked to Riggins. Based on her experience, Sergeant Grier went to Browntown Road where she anticipated a robbery suspect would go to escape. She encountered defendant, who was sweating profusely, breathing hard and wearing no shoes. He fit the description given by Riggins -- white male, approximately 5'9” or 5'10” with dirty blond hair and a stockier build than Riggins. Sergeant Grier radioed the information to Officer Fox and Officer Fox left Riggins to join her.
    When questioned by Officer Fox, defendant said he had an argument with his girlfriend and explained that he became sweaty by running after her car, where he had left his shoes. Officer Fox stayed with defendant while Sergeant Grier searched the area where she had first seen defendant. She saw money scattered on the ground and radioed Officer Fox to secure defendant. When Officer Fox asked defendant if he would mind going to Subway to discuss an incident, he said “you got me.” Defendant said it again when Officer Fox asked if he was saying that he robbed the Subway.
    After Officer Fox told defendant to place his hands behind his back to handcuff him, defendant jerked his arm away and ran. Officer Fox pursued him down Browntown Road toward Park Street, down an alleyway, over a fence and into a backyard where he used his flashlight and saw defendant crouched down between a bush and a building. With his gun drawn, Officer Fox told him to put his hands up and lay on the ground. Defendant put his hands up and stood up, but when Officer Fox again ordered him to get on the ground, defendant ran. Officer Fox ran after him about five steps and tackled him to the ground. He held defendant until another officer arrived and helped him handcuff defendant. Sergeant Grier and Officer Fox drove to the Subway restaurant and Riggins identified defendant as the person who had robbed Subway.
    At the Belmont Police Department, defendant confessed to the robbery. Corporal Floyd Bollinger (“Corporal Bollinger”) arrived on Browntown Road and recovered the handgun, which was not loaded. Sergeant Grier had located the money totaling $169.35 and asked Corporal Bollinger to secure it. Corporal Bollinger and Crime Scene Investigator Jason Gardner searched the area surrounding the Subway restaurant and Browntown Road and found tennis shoes in a garbage pail. Then, after the information was radioed in, defendant told them to look in the drain culvert for the clothing and Subway telephone.
    Defendant assigns error to the trial court's denial of his oral requests for specific jury instructions that his gun was not loaded and thus, the gun could not endanger the life of someone with regard to a conviction of robbery with a firearm. In the alternative, defendant asserts that he received ineffectiveassistance of counsel based on his counsel's failure to request this special instruction in writing.

I.

    Defendant first argues that the jury instructions, which included a submission of robbery with a firearm and common law robbery, were insufficient because they did not allow the jury to address whether or not the gun was loaded. Defendant asserts that the failure to give this special instruction deprived the jury of their right to determine an elemental fact of the crime. We disagree.
A.

    The trial court did not err in denying defendant's requests for special jury instructions because the requests were not in writing.
        Requests for special instructions must be in writing, entitled in the cause, and signed by the counsel or party submitting them. Such requests for special instructions must be submitted to the judge before the judge's charge to the jury is begun. The judge may, in his discretion, consider such requests regardless of the time they are made.

N.C. Gen. Stat. § 1A-1, Rule 51(b) (2003); see also N.C. Gen. Stat. § 1-181(a) and (b) (2003).
        A request for special instructions, properly made, imposes a duty on the court to give the instructions, at least in substance, where relevant to the case. State v. Thomas, 28 N.C. App. 495, 221 S.E.2d 749 (1976). However, in the absence of such a request, no duty arises on the part of the trial court, and where the instruction is not in writing and signed pursuant to G.S. 1-181, it is within the discretion of the trial judge to give or to refuse an instruction. State v.Thomas, supra; State v. Hardee, 6 N.C. App. 147, 169 S.E.2d 533 (1969).

State v. Lang, 46 N.C. App. 138, 143, 264 S.E.2d 821, 825, remanded on other grounds, 301 N.C. 508, 272 S.E.2d 123 (1980).
    In the case before us, defendant's trial attorney did not request the special jury instructions in writing. He verbally made a request before the verdict form was given to the jury. “For the record, based upon Mr. Falivene's record, I'd ask you to instruct the jury on the significance of the gun being loaded and unloaded in regards to his remarks about not mentioning any bullets in the instruction. . . .” When the jury asked for the “[w]ritten difference between guilty of robbery, guilty of common law,” defendant's counsel made another request. “Your honor, again, I would ask that the Court, in addition to that, also instruct the jury that a gun that is unloaded is not a gun that could endanger the life pursuant to a law that I submitted already.” The judge decided to instruct the jury in writing “using the pattern instruction that I've already given.”
    It is in the trial court's discretion whether to give the special instructions to the jury upon defendant's oral requests. The trial court, in its discretion, chose not to give that instruction, and based on our review the trial court did not abuse its discretion. In addition, the trial court sufficiently instructed the jury based on the law and the facts, and did not err in this case.
    The trial judge gave the standard jury instructions for robbery with a firearm as well as the lesser included crime ofcommon law robbery. The relevant portions of the jury instructions to this case included the charge
        that for you to find the defendant guilty of robbery with a firearm, the state must prove seven things beyond a reasonable doubt . . . six, that the defendant had a firearm in his possession at the time he obtained the property or that it reasonably appeared to the victim that a firearm was being used . . . and, seven, that the defendant obtained the property by endangering or threatening the life of that person with the firearm.

B.

    The trial court did not err in denying defendant's requests for special jury instructions even when defendant testified the gun was not loaded and he believed it was inoperable.
    First, in State v. Joyner, 312 N.C. 779, 324 S.E.2d 841 (1985), our Supreme Court opined:
        [W]here there is evidence that a defendant has committed a robbery with what appears to the victim to be a firearm or other dangerous weapon and nothing to the contrary appears in evidence, the presumption that the victim's life was endangered or threatened is mandatory. See State v. Thompson, 297 N.C. 285, 254 S.E.2d 526 (1979). If the jury in such cases finds the basic fact (that the robbery was accomplished with what appeared to the victim to be a firearm or other dangerous weapon), the jury must find the elemental fact (that a life was endangered or threatened).

Joyner, 312 N.C. at 782, 324 S.E.2d at 844.
    Secondly, “when any evidence is introduced tending to show that the life of the victim was not endangered or threatened, 'the mandatory presumption disappears, leaving only a mere permissive inference. . . .'” Id. at 783, 324 S.E.2d at 844 (quoting State v. White, 300 N.C. 494, 507, 268 S.E.2d 481, 489 (1980)).    Next, Joyner states:
        Although the burden of proof beyond a reasonable doubt always remains upon a State, the defendant has the burden of demonstrating to the court the invalidity of the permissive inference as applied in his case. Ulster County Court v. Allen, 442 U.S. at 157; State v. White, 300 N.C. at 503, 268 S.E.2d at 487. If the defendant makes such a showing, the trial court may not allow the inference to be made by the jury.

Id. at 783-84, 324 S.E.2d 844-45.
    Finally, this Court has also opined:
        [W]here a defendant presents evidence that the weapon used during a robbery was unloaded or otherwise incapable of firing, such evidence “tend[s] to prove the absence of an element of the offense [of armed robbery] and require[s] the submission of the case to the jury on the lesser included offense of common law robbery as well as the greater offense of robbery with firearms or other dangerous implements.” State v. Joyner, 67 N.C. App. 134, 136, 312 S.E.2d 681, 682 (1984), affirmed, 312 N.C. 779, 324 S.E.2d 841 (1985); see also Allen, 317 N.C. at 126, 343 S.E.2d at 898 (noting that evidence that a firearm is inoperative forms the basis for instruction on common law robbery).

State v. Frazier, 150 N.C. App. 416, 419, 562 S.E.2d 910, 913 (2002).
    In the case at bar, the jury could make a permissive inference that the firearm was operative and threatened Riggins' life, despite defendant's evidence. In the alternative, the trial court instructed the jury on the lesser included offense of common law robbery whether the inference was sufficiently satisfied or not. The jury heard the evidence, including defendant's admission of committing the crime when he had a gun in his possession. Duringdeliberations, it asked the court for the “[w]ritten difference between guilty of robbery, [and] guilty of common law.” The jury heard conflicting evidence about the gun and, consequently, it was convinced beyond a reasonable doubt to convict defendant of robbery with a firearm instead of common law robbery.
    Riggins testified that he saw defendant with a gun and defendant “stuck it” up against his neck. It felt like cold steel and defendant kept it on his neck until they walked to the front of the store. The rest of the time, defendant kept the gun pointed at Riggins, “trained at me so if I did the wrong thing he could easily have a shot at me.” Defendant could not recall putting it up to Riggins' neck, but admitted “I'm not saying that I did not.” Defendant testified that he had bought the gun for his estranged wife earlier that year because she lived in a bad neighborhood. He bought it for $20.00 without a clip and believed it was inoperable, but wanted his wife to be able to scare away people in the neighborhood. Defendant testified he was convinced it was inoperable because at one point after retrieving the gun from his wife, it came apart in his hands.
    The State Bureau of Investigation (“SBI”) presented expert testimony on the testing of the gun and determined that it was operable and that it could be fired without a clip. Based on the serial number, the expert said that the clip could be easily removed and the 25 caliber automatic cartridges that it used could be easily removed and thrown away too.    The evidence also tended to show that defendant admitted to throwing away the other robbery items in the dark, including the gun and money. The State offered that when the investigators searched in the dark for evidence early that morning after the crime, they could have overlooked the round and clip of the gun that defendant used if they had been thrown away also. While confessing to the robbery, defendant never told officers that the gun was unloaded and inoperable, as he testified in court. Defendant did not have witnesses such as his wife or the gun salesman to testify and corroborate his testimony.
    Accordingly, we hold that the trial court did not have a duty to give defendant's requested special instructions because it was not in writing, and further the trial court did not abuse its discretion by not instructing on the gun being unloaded or loaded.
II.

    Defendant next argues that he was deprived of his right to due process and effective assistance of counsel (1) if this Court cannot review the special jury instruction requests because they were not made in writing, and (2) since there was plain error in the trial court's jury instructions, which excluded the special instructions, when his attorney failed to make the requests properly. We disagree with defendant's assertions that he received ineffective assistance of counsel.
    “To successfully assert an ineffective assistance of counsel claim, defendant must satisfy a two-prong test.” State v. Gainey, 355 N.C. 73, 112, 558 S.E.2d 463, 488 (2002). Defendant must first“show that counsel's performance fell below an objective standard of reasonableness.” Id. “Second, the defendant must also show that the error committed was so egregious that 'but for counsel's unprofessional errors, the result of the proceeding would have been different.'” State v. Pratt, 161 N.C. App. 161, 163, 587 S.E.2d 437, 439 (2003) (quoting Strickland v. Washington, 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698 (1984).
        In State v. Seagroves, 78 N.C. App. 49, 336 S.E.2d 684 (1985), disc. review denied, 316 N.C. 384, 342 S.E.2d 905 (1986), the Court of Appeals held that in order to show ineffective assistance of counsel because of the failure to request jury instructions, the defendant must show that without the requested instructions there was plain error in the charge.

State v. Swann, 322 N.C. 666, 688, 370 S.E.2d 533, 545 (1988). Plain error is defined as “'a “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or “where [the error] is grave error which amounts to a denial of a fundamental right of the accused[.]”'” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F. 2d 995, 1002 (4th Cir. 1982)).
    In the case sub judice, defendant's counsel did make requests, though not in writing, and the trial judge denied them. In any event, as we have previously discussed, defendant was not entitled to these special instructions and did not prove that his counsel's actions resulted in plain error in the charge. Thus, defendant has not shown that his counsel acted contrary to the objective standardof reasonableness or that but for his failure to provide written requests for instructions the result of the trial would have been different. Therefore, the attorney's failure to provide them in writing does not amount to ineffective assistance of counsel.
    No error.
    Chief Judge MARTIN and Judge TIMMONS-GOODSON concur.
    Report per Rule 30(e).

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