An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-214


Filed: 18 January 2005


v .                         Wake County
                            No. 02 CRS 34170

    Appeal by defendant from judgment entered 7 August 2003 by Judge Ripley E. Rand in Wake County Superior Court. Heard in the Court of Appeals 20 October 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Jill Ledford Cheek, for the State.

    Nora Henry Hargrove, for the defendant-appellant.

    STEELMAN, Judge.

    On the evening of 25 August 2002 Esther Williams returned to her house to find defendant and Rodreguise L. Calhoun inside. She then left to run an errand, and when she returned a short time later she noticed a group of people around her house. Upon entering, she found Kamara Samuels laying face down inside her house, wearing only a black t-shirt and boxer shorts. Samuels had been shot. She asked Samuels who had shot him and he answered “Chico” and “Worm.” Samuels subsequently died of his injuries. Calhoun was later identified as “Chico,” and defendant was identified as “Worm.”
    Albert Jones lived across the street from Williams, and heard a gunshot that evening. He went to Williams' house to investigateand saw Calhoun through the back door, holding a gun. Jones returned to his house and got his shotgun. Upon seeing defendant and Calhoun running from Williams' house, he fired his shotgun, hitting defendant in the arm and buttocks.
    Near where Samuels was lying police found a pair of pants and an empty wallet. The defendant, Calhoun and Samuels were involved in the drug trade together, and were known to carry large amounts of cash. Defendant was arrested early the next morning, and was carrying $853.00 in cash, a box of .44 caliber bullets, and two rocks of crack cocaine. When interviewed by police, after several contradictory stories, defendant admitted that he was present that evening and that he and Calhoun had gone to Williams' house (which was used by Samuels to sell drugs) to retrieve $3000.00 defendant claimed Samuels owed to him. Defendant denied taking any money from Samuels. Defendant stated that while he was with Calhoun and Samuels that night, it was Samuels who had first reached towards his waistband as if going for a gun. It was then, according to defendant, that Calhoun pulled out his gun, precipitating a scuffle between Samuels and Calhoun for Calhoun's gun. Defendant stated that the gun discharged in the fight, wounding Samuels. Defendant claimed he did not know how Calhoun's pants were removed.
    At trial, the State proceeded on the theory that Calhoun was the shooter, and that defendant was guilty of non-capital first- degree murder based on either the doctrine of acting in concert under felony murder, or aiding and abetting under premeditated and deliberated murder. At the close of evidence, the trial courtinstructed the jury on first-degree murder under two theories _ felony murder based on robbery with a dangerous weapon and premeditation and deliberation, and second-degree murder. The trial court instructed the jury on the theory of aiding and abetting as to the charge of first-degree murder based upon premeditation and deliberation, and upon the theory of acting in concert as to the felony murder charge. The jury found defendant guilty of first-degree murder under the felony murder rule. From a sentence of life imprisonment without parole defendant appeals.
    In his first argument, based upon his eleventh assignment of error, defendant contends that the trial court erred in not instructing the jury on the theory of acting in concert on the charge of second-degree murder. We disagree.
    Defendant did not object to the trial court's instruction on second-degree murder at trial.
        A party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection; provided, that opportunity was given to the party to make the objection out of the hearing of the jury, and, on request of any party, out of the presence of the jury.

Rule 10(b)(2), North Carolina Rules of Appellate Procedure. Outside the presence of the jury, the trial court provided all counsel with written copies of the jury instructions he intended to give to the jury. The trial court then asked counsel to review the proposed instructions “to see if there are any additional requests for modifications, deletions, corrections.” After affording theparties an opportunity to review the instructions, the trial court asked both parties if they had any objections. The defendant did not object to the instruction on second-degree murder at that time. After charging the jury, the trial judge again asked the parties whether they had any “additional instructions, corrections, modifications or if you want to do anything else?” Again defendant failed to object to the instruction on second-degree murder. “Rule 10(b)(2) of our Rules of Appellate Procedure requiring objection to the charge before the jury retires is mandatory and not merely directory.” State v. Fennell, 307 N.C. 258, 263, 297 S.E.2d 393, 396 (1982); State v. Bradley, 91 N.C. App. 559, 564, 373 S.E.2d 130, 133 (1988); see also State v. Morgan, 315 N.C. 626, 644, 340 S.E.2d 84, 95 (1986)(even where trial court has an affirmative duty ex mero motu to give an instruction, failure on the part of defendant to object precludes assigning the lack of instruction as error on appeal except as plain error). We further note that defendant has not assigned as plain error in the record the trial court's instruction on the offense of second-degree murder, and thus waives the right to plain error analysis of this issue on appeal. State v. Moore, 132 N.C. App. 197, 511 S.E.2d 22 (1999). We therefore do not consider this argument.
    In his second argument, encompassing his fifth and ninth assignments of error, defendant contends that the trial court erred in failing to grant his motion to dismiss because there was insufficient evidence to prove robbery with a dangerous weaponbeyond a reasonable doubt, and thus there was insufficient evidence to convict him of felony murder. We disagree.
        [U]pon a motion to dismiss in a criminal action, all the evidence admitted, whether competent or incompetent, must be considered by the trial judge in the light most favorable to the State, giving the State the benefit of every reasonable inference that might be drawn therefrom. Any contradictions or discrepancies in the evidence are for resolution by the jury. The trial judge must decide whether there is substantial evidence of each element of the offense charged. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984)(internal citations omitted).
    “The elements of [robbery with a dangerous weapon] are an unlawful taking or an attempt to take personal property from the person or in the presence of another, by use or threatened use of a firearm or other dangerous weapon, whereby the life of a person is endangered or threatened. N.C.G.S. § 14-87 (1993).” State v. Thomas, 350 N.C. 315, 343, 514 S.E.2d 486, 503 (1999). State's evidence tends to show that defendant was at the scene of the shooting; that when Samuels was shot he was wearing pants; that defendant remained in the house for several minutes after the shooting; that when Samuels was found lying on the floor his pants were removed and his wallet was out and empty; and that defendant and Calhoun fled the scene of the shooting together. When defendant was arrested he had $853.00 in cash. Defendant told police the reason he had gone to the scene that day was to retaliate against Samuels because Samuels had stolen $5000.00 incash from him and a $2000.00 medallion and a Rolex pinky ring from a friend of his at gunpoint. He also told police that the reason he went there that night was to retrieve $3000.00 that Samuels owed him.
    When viewed in the light most favorable to the State, allowing every reasonable inference in its favor, this constitutes relevant and substantial evidence that a reasonable mind might accept as adequate to support a conclusion that defendant, acting in concert with Calhoun, committed robbery with a dangerous weapon. This argument is without merit.
    In his third argument, which he asserts is based on assignment of error nine, defendant contends that the trial court erred in its instruction on robbery with a dangerous weapon as an underlying felony supporting felony murder on the basis that the instruction was contrary to the law of North Carolina. We disagree.
    Defendant argues that the trial court committed reversible error by incorrectly charging the jury in its final mandate that if it found
        from the evidence presented beyond a reasonable doubt that on or about April 25th of 2002, that the defendant, acting by himself or together with another, committed or attempted to commit robbery with a dangerous weapon, and that while committing robbery with a dangerous weapon the defendant, acting by himself or with another, killed Mr. Samuels and that defendant's actions were a proximate cause of Mr. Samuels' death, it would be your duty to return a verdict of guilty of first degree murder under the felony murder rule.

Defendant argues that this instruction is contrary to the law of North Carolina because the jury was never given the legaldefinition of attempt, the State did not argue attempt at trial, and that because there was insufficient evidence to support a completed robbery, giving the instruction on attempt allowed the jury to convict defendant of felony murder where it would otherwise have been unable to do so. We first note that the evidence was sufficient at trial to support a charge of completed robbery with a dangerous weapon. The State based its case for felony murder on a completed robbery with a dangerous weapon. It was thus error for the trial court to mention attempted robbery with a dangerous weapon in its instruction to the jury. However, in its initial instruction on felony murder, the trial court charged only on completed robbery, and included no instruction on attempt. The trial court mentioned “robbery with a dangerous weapon” five separate times in its instruction on felony murder without mentioning attempt. It is clear to this Court that the mention of attempted robbery in the trial court's final mandate was merely a lapsus linguae, and did not confuse the jury. The fact that the trial court never defined attempt for the jury supports this view.
    “A lapsus linguae in the instruction will not be held to be prejudicial error if not called to the attention of the court and if it does not appear that the jury could have been prejudiced thereby.” State v. Willis, 22 N.C. App. 465, 468-69, 206 S.E.2d 729, 731 (1974)(citation omitted).
        The charge to the jury must be considered as a whole, in the same connected way as given to the jury with the presumption that the jury did not overlook any portion of it and if, when so construed, it presents the law fairly and correctly, there is no ground forreversal, although some of the expressions, when standing alone, may be regarded as erroneous.

State v. Humphrey, 13 N.C. App. 138, 142, 184 S.E.2d 902 (1971)(citation omitted). We note that although defendant's counsel objected to the instruction on armed robbery, based on his belief that one of the elements of the crime was missing from the instruction, he did not object to it on the basis that the language on attempt constituted error. Thus, defendant did not draw the trial court's attention to its lapsus linguae. Considering the entire instruction, we hold that the trial court's misstatement was not enough to confuse the jury, the instruction as a whole presented the law “fairly and correctly,” and thus there is no ground for reversal. Id.; see also State v. Ware, 31 N.C. App. 292, 294, 229 S.E.2d 249, 251 (1976). This argument is without merit.
    In defendant's fourth argument, based on his first assignment of error, he argues that the trial court lacked jurisdiction to try him because he was charged under an unconstitutional “short form” indictment. We disagree.
    As defendant acknowledges, our Supreme Court has held the “short form” indictment is constitutional. State v. Hunt, 357 N.C. 257, 582 S.E.2d 593 (2003); State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000), cert. denied, 531 U.S. 1130 (2001). This argument is without merit.    Because defendant has not argued his other assignments of error in his brief, they are deemed abandoned. N.C. R. App. P. Rule 28(b)(6) (2003).
    Judges CALABRIA and GEER concur.
    Report per Rule 30(e).

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