An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-418


Filed: 1 March 2005


         v.                        Guilford County
                                No. 03 CRS 73700

    Appeal by defendant from judgment entered 25 August 2003 by Judge Ronald E. Spivey in Guilford County Superior Court. Heard in the Court of Appeals 3 January 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Joseph Finarelli, for the State.

    Anthony M. Brannon and Marlet M. Edwards for defendant- appellant.

    ELMORE, Judge.

    Warren Edward Davis (defendant) appeals a felony conviction of attempted robbery with a dangerous weapon. On appeal, defendant argues that the trial court erred (1) in denying his motion to dismiss based upon insufficient evidence; (2) in failing to further clarify the definition of “acting in concert”; and (3) in not sentencing him in the mitigated range of sentences. These arguments are unpersuasive and, there is no error in the judgment of the trial court.
    Defendant was charged with attempted robbery with a dangerous weapon. The State's evidence tended to show that on the morning of 22 January 2003, Melvin Wiggins was getting ready for work in hisGreensboro, North Carolina apartment when he heard knocking at the front door. Wiggins went to the door and looked through the peephole. When he observed three unknown black males, Wiggins turned around and walked back towards his bedroom to continue preparing for work. The knocking then turned into banging.
    Wiggins' roommate, Robert K. Bayless, II, who had been asleep on the living room couch, awoke to the sound of banging on the front door. Just as Bayless turned over to look at the door, it flew open and Bayless saw three individuals enter the apartment. A light-skin, black man walked over to Bayless, pointed a silver revolver at Bayless's face, and ordered Bayless not to move.
    Wiggins, who had been walking back to his bedroom, was startled by the front door crashing open. When he turned, Wiggins saw two intruders running towards him, and a third man move in the direction of Bayless on the couch. Wiggins moved into his bedroom, locked the door, and grabbed his gun that he kept under his bed. After loading the weapon, Wiggins fired his pistol, whereupon the intruders turned back.
    When Bayless heard the gunshots, he ran to the apartment's balcony. The unidentified male who had been holding him at gunpoint moved toward the front door of the apartment. All three intruders subsequently ran out of the front door of the apartment, got into a gray car with tinted windows, and fled the scene. Bayless then called the Greensboro Police Department to report the incident.
    Greensboro police officers responded to the scene and took thestatements of both Wiggins and Bayless. A crime scene technician retrieved and identified a twenty-two caliber bullet and bullet holes in Wiggins' bedroom wall and living room ceiling. The technician also identified a bullet hole in the light fixture located outside of the victims' apartment door. No drugs or large amounts of money were found on the premises.
    Later, on the same day, Sergeant Pete Acosta of the Graham Police Department, responded to a call from Alamance Regional Medical Center that victims of a shooting were being treated at the hospital. Once at the hospital, Sergeant Acosta spoke with defendant, who had accompanied Paul Thibeau and Lamar Murphy to the emergency room. Thibeau had been shot in the leg, and Murphy had been shot in the chest. Defendant told the sergeant that Thibeau and Murphy had been shot during an incident at an apartment complex in Graham, North Carolina. When no officer was able to locate any evidence of a shooting at the location given by defendant, Sergeant Acosta sent out an e-mail message to other police departments, within a fifty mile radius, explaining that the Graham Police Department had three apparent crime victims, two of whom had been shot, but no crime scene.
    The Greensboro Police Department contacted Sergeant Acosta shortly after receiving his e-mail, noting that they had responded to a crime scene in Greensboro involving three intruders. Sergeant Acosta then attempted to locate defendant and his girlfriend, Charity Gray, who had driven the three suspects to Alamance Regional Medical Center. Defendant and Gray were subsequentlyapprehended, while driving Gray's silver Pontiac Grand Prix on I-85 near Graham. The two were placed under arrest on unrelated charges, advised of their rights, and transported to the Graham Police Department.
    Once at the Graham Police Department, the two were interviewed separately. In a statement to the police, defendant related that Murphy told him that he was “going to get some weed,” and that Murphy and Thibeau later told him that he needed to watch out for the police, which he did while Murphy and Thibeau kicked in the door to Wiggins's apartment. After Murphy and Thibeau were shot, the three fled the scene, got back into the car, in which Gray had been sleeping, and went to the hospital.
    At trial, defendant presented his own testimony, as well as that of his girlfriend, Charity Gray. Gray testified that she accompanied defendant to the apartment of Thibeau's girlfriend on 22 January 2003, and that after talking briefly, the three men and Gray left in Gray's vehicle. Gray stated that she fell asleep in the car, and was later awoken by the sound of gun shots. She noted that at this time there was no one else in the car with her. Defendant, followed by Murphy and Thibeau returned to the car. Murphy and Thibeau had been shot. Gray confirmed defendant's account that Murphy and Thibeau asked him to be a look-out while they went into the apartment of Wiggins and Bayless to get some marijuana.
    Defendant testified that he, Gray and Thibeau had stopped at Murphy's girlfriend's house to pick up Murphy on the date inquestion. Once there, defendant testified that Thibeau and Gray went inside of the house, while he remained outside to smoke a cigarette. After finishing the cigarette, Gray, Murphy and Thibeau came out of the house, and Murphy asked defendant if it was okay if Murphy went to buy some marijuana from some guys that Murphy knew. Apparently, Murphy believed that Wiggins and Bayless had a trash bag full of marijuana and a shoe box full of money at their apartment. Defendant noted that while Gray was asleep in the car, he accompanied Murphy and Thibeau to Wiggins's apartment door. Defendant admitted that he followed Murphy into the apartment, when Murphy kicked the apartment door in, but testified that upon hearing shots fired, he turned and fled the apartment, returning to the car. Defendant stated that as Thibeau returned to the car, he saw Thibeau point a revolver and shoot back in the direction of Wiggins's apartment.
    After hearing the evidence and being instructed on the law applicable to the case, the jury retired to deliberate. The jury subsequently submitted a written request for clarification regarding the instruction on “acting in concert.” The court, after consulting with counsel, repeated its earlier instruction on the theory of “acting in concert.” Thereafter, the jury found defendant guilty as charged. After determining that defendant was a prior record level III, the trial court sentenced defendant to a presumptive sentence of 91 to 119 months imprisonment. Defendant appeals.
    On appeal, defendant first contends that the trial court erredin denying his motion to dismiss. Specifically, defendant contends that the State did not present sufficient evidence that he possessed the requisite intent to commit the offense charged. We disagree.
    A motion to dismiss is properly denied if “there is substantial evidence of each essential element of the crime and that the defendant is the perpetrator.” State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781, cert. denied, 537 U.S. 1005, 154 L. Ed. 2d 403 (2002). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). In considering the motion, the court must view all evidence-- direct or circumstantial-- in the light most favorable to the State, giving the State every reasonable inference that can be drawn therefrom. State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998).
    To obtain a conviction of attempted robbery with a dangerous weapon, the State must prove that the defendant, having “the specific intent to unlawfully deprive another of personal property by endangering or threatening his life with a dangerous weapon, d[id] some overt act calculated to bring about th[at] result.” State v. Miller, 344 N.C. 658, 667-68, 477 S.E.2d 915, 921 (1996). Under the theory of acting in concert, “if two or more persons act together in pursuit of a common plan or purpose, each of them, if actually or constructively present, is guilty of any crime committed by any of the others in pursuit of the common plan.”State v. Golphin, 352 N.C. 364, 456, 533 S.E.2d 168, 228 (2000), (citing State v. Laws, 325 N.C. 81, 97, 381 S.E.2d 609, 618 (1989)), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001). A person is constructively present during the commission of a crime if he is close enough to provide assistance and encourage the actual execution of the crime. Id.
    In the instant case, defendant was convicted under a theory of acting in concert. The evidence tended to show that Murphy, who allegedly had previously purchased marijuana from Wiggins and Bayless, believed that the two had “a trash bag full of marijuana and a shoe box full of money.” By defendant's own admission, once the three men arrived at the apartment, and “when [Murphy] figured out they wasn't home, he wanted to go get it, and I acted in concert by following him.” Defendant testified:
        My intention was simple breaking and entering and larceny. I had no plans for it to be any type of robbery. It became a robbery when the people was in the house and we continued to proceed, we actually taking what wasn't ours.
There was then sufficient evidence that defendant had the intent to unlawfully take and carry away certain property from the victims-- be it by breaking and entering, or by robbery; that he, along with Murphy and Thibeau, took steps beyond mere preparation to commit that crime; and that during the attempt to commit said unlawful act, things went awry, causing injury to his two co-conspirators. Under the theory of acting in concert, defendant's admitted presence pursuant to an agreement to break and enter and the acts taken by him in furtherance thereof, was sufficient to imputeresponsibility for the ultimate crime that was charged here. See State v. Walker, 154 N.C. App. 645, 650, 572 S.E.2d 866, 870 (2002)(rejecting the defendant's argument that he could not be convicted under the theory of acting in concert because there was insufficient evidence to show that there was a common plan or scheme to break into the victims' home and commit armed robbery). In the light most favorable to the State, the evidence was sufficient to submit the issue of defendant's guilt to the jury. Accordingly, the trial court did not err in denying his motion to dismiss.
    Defendant next argues that the trial court erred in failing to properly respond to the jury's question regarding the theory of acting in concert. At the outset, we note that defendant has not properly preserved this issue for appellate review. First, though asked both prior to and after the court's reinstruction on the theory of acting in concert, defense counsel failed to object and declined to be heard at each turn. Hence, defendant has waived review of the court's further instruction on appeal. See N.C.R. App. P. 10(b)(2)(requiring that a defendant object and be heard outside of the presence of the jury, so as to assign error to a jury charge); State v. Weddington, 329 N.C. 202, 210, 404 S.E.2d 671, 674 (1991)(holding that where jurors requested clarification on an instruction, and the defendant's trial counsel agreed to the court's plan to reread all instructions on the elements of the offense, the defendant “will not be heard to complain on appeal” that the instructions should have been otherwise). Further, wenote that defendant has failed to assign or argue plain error as to this alleged error in instructing the jury. See N.C.R. App. P. 10(c)(4)(requiring that a defendant “specifically and distinctly” assign plain error to the issue in the record on appeal). Accordingly, plain error review is also precluded. See id. Finally, even assuming arguendo that the issue were properly before the Court, the trial court's re-instruction was adequate, so as to clear up any question regarding the applicability of the theory of acting in concert in this case. Defendant's argument to the contrary fails. Defendant next argues that the trial court erred in failing to sentence him in the mitigated range. Again, we disagree.
    It is well settled that the trial court is only required to make findings in aggravation or mitigation if the court departs from the presumptive range of sentences. State v. Caldwell, 125 N.C. App. 161, 162, 479 S.E.2d 282, 283 (1997). Thus, even when there is uncontradicted evidence of mitigating factors, the trial court is not required to make any findings justifying a sentence within the presumptive range. State v. Campbell, 133 N.C. App. 531, 542, 515 S.E.2d 732, 739 (1999).
    Here, defendant was sentenced as a Class D felon, having a prior record level of III, to a presumptive sentence of 91 months minimum and a corresponding maximum of 119 months imprisonment. See N.C. Gen. Stat. § 15A-1340.17(c)(2003). Since the trial court sentenced defendant in the presumptive range, the court was not required to take into account any mitigating or aggravatingevidence-- uncontradicted or otherwise. Hence, this argument also fails.
    In light of all of the foregoing, we hold that defendant received a fair trial, free from prejudicial error.
    No error.
    Judges HUNTER and STEELMAN concur.
    Report per Rule 30(e).

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