STATE OF NORTH CAROLINA
v. Iredell County
No. 97 CRS 7004
ANDRE HOWELL
Attorney General Roy Cooper, by Assistant Attorney General
Leonard G. Green, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Barbara S. Blackman, for defendant-appellant.
CALABRIA, Judge.
Andre Howell (“defendant”) seeks review of a judgment upon a
jury verdict finding him guilty of robbery with a dangerous weapon.
He was sentenced to a minimum of 103 months to a maximum of 133
months in the North Carolina Department of Correction. We find no
error in the trial but remand for resentencing.
The State presented evidence showing that, on 20 April 1997,
defendant entered the County Line Convenience Store on Campground
Road in Iredell County, North Carolina (“the store”) with Corey
Mayfield (“Mayfield”) and Shaunte Frazier (“Frazier”). Frazier
brandished a .22 caliber handgun and took money from the store's
clerk. Defendant drove Mayfield and Frazier from the scene beforebeing stopped on Woodleaf Road by Deputy Sheriff Eric Dye (“Deputy
Dye”) of the Iredell County Sheriff's Department, who charged
defendant with armed robbery of the store. A videotape of the
robbery was recorded by a surveillance camera and played for the
jury.
At trial, the participants offered conflicting accounts of
defendant's involvement in the robbery. Frazier testified that
defendant announced his intention to commit the robbery as he was
driving the group to the store. While standing in the back of the
store near the beer cooler, defendant handed Frazier the gun and
asked him to perform the robbery, explaining that “[i]f anything
goes wrong . . . nothing's going to happen” because Frazier was
the youngest. Like Frazier, Mayfield testified that defendant
initiated the idea of robbing the store and went into the store
with the gun but “chickened out” once they were inside. Mayfield
claimed, however, that Frazier then volunteered to commit the
robbery, whereupon defendant handed him the gun.
Defendant testified he was unaware that Frazier and Mayfield
intended to commit the robbery. Frazier mentioned robbing the
store while they were in the parking lot, but defendant assumed he
was joking. When Frazier repeated his statement inside the store
by the cooler, defendant replied, “[M]an, I ain't robbing nothing.
. . . [I]f you rob it, me and [Mayfield] are getting in the car;
and we're going to leave you here.” Defendant paid no attention to
Frazier and Mayfield when they approached the front counter,
looking instead at candy and some transmission fluid for the car. Defendant “heard [Frazier] say, ['G]ive me the money,[']” but was
unaware of what was happening, because he was “singing a song or
two in [his] head.” When he saw Frazier brandishing a gun, he
immediately fled the store, followed by Mayfield. Defendant heard
a gunshot in the store and tried to start the car. Frazier ran out
of the store, got into the car, and said, “[L]et's go, let's go.”
Defendant “didn't know what just happened in the store after [he]
heard the shot[,]” but decided he “was going to take [Frazier
wherever] he wanted to go.”
During the charge conference, defendant's counsel initially
requested an instruction on withdrawal, “[t]hat is, that a
participant in this crime or any crime might elect to withdraw
himself at some period prior to the actual carrying out of the
event[.]” After a recess, the court announced that its instruction
on aiding and abetting would include language explaining “that one
merely being present at the scene does not constitute guilt, even
though he may secretly approve of the crime, he has to in some way
actively encourage the procurer, so forth.” The court then asked
defense counsel if he had any additional instruction requests.
Counsel responded, “No I don't judge. . . . I was thinking about
conspiracy[.]” The court ultimately instructed the jury on the
issue of concerted action as follows:
A person who aids and abets another to commit
a crime . . . is guilty of the crime just as
if he had personally done all the acts
necessary to constitute that crime. A person
is not guilty of a crime merely because he is
present at the scene even though he may
silently approve of the crime or secretly
intend to assist in its commission. In orderto be guilty, he must aid or actively
encourage the person committing the crime or
in some way communicate to this person his
intention to assist in its commission.
(Emphasis added).
Defendant was found guilty of robbery with a dangerous weapon
and was sentenced to an active prison term of a minimum of 103 and
a maximum of 133 months in the North Carolina Department of
Correction. By order entered 26 May 2004, we granted defendant's
petition for writ of certiorari for the purpose of reviewing the
judgment.
On appeal, defendant assigns error to the lack of a jury
instruction on the effect of his withdrawal from the robbery.
Defendant avers that the lack of an instruction on withdrawal was
the product of (1) error by the trial court in failing to give the
instruction sua sponte or (2) ineffective assistance of counsel in
abandoning his request for the instruction.
In order to establish error in the trial court's failure to
give a jury instruction, defendant "must show that substantial
evidence supported the omitted instruction[.]" State v. Farmer,
138 N.C. App. 127, 133, 530 S.E.2d 584, 588 (2000) (citations
omitted). “Substantial evidence is that evidence which a
reasonable mind might accept as adequate to support a conclusion.”
State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996)
(citations omitted). To sustain an ineffective assistance of
counsel claim, defendant must show both that counsel was
unreasonable in declining to seek the instruction and that
counsel's error had a probable effect on the jury's verdict orotherwise deprived defendant of a fair trial. See State v.
Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985).
Our Supreme Court has articulated the principle of withdrawal
as follows:
Where the perpetration of a felony has been
entered on, one who had aided or encouraged
its commission cannot escape criminal
responsibility by quietly withdrawing from the
scene. The influence and effect of his aiding
or encouraging continues until he renounces
the common purpose and makes it plain to the
others that he has done so and that he does
not intend to participate further.
State v. Spears, 268 N.C. 303, 310, 150 S.E.2d 499, 504 (1966)
(citations omitted). This principle can apply where a defendant is
alleged either to have aided and abetted the commission of a felony
or to have committed a felony by concerted action. See State v.
Wilson, 354 N.C. 493, 507-08, 556 S.E.2d 272, 282 (2001), disavowed
in non-pertinent part by State v. Millsaps, 356 N.C. 556, 567, 572
S.E.2d 767, 775 (2002).
We find defendant's assignments of error without merit. None
of the competing versions of the robbery offered by the witnesses
depicted defendant as withdrawing from the robbery. Defendant
claimed that he was unaware Frazier intended to rob the store,
refused to be involved, and threatened to leave Frazier at the store
if he attempted a robbery. Accepting defendant's evidence as true,
he never entered into the robbery enterprise with Frazier but was
just unwittingly present at the scene. This scenario was addressed
by the trial court in its instruction on “mere presence.” Moreover,
we note defendant's testimony that after seeing Frazier brandish thegun at the counter and hearing the gunshot in the store, he elected
to “take [Frazier] wherever he wanted to go” rather than
disassociating himself from his associate's endeavor. Frazier
testified defendant instigated the robbery, asked Frazier to perform
the act, and provided him with the gun. Similarly, Mayfield stated
that defendant initiated the idea of robbing the store, went into
the store with the gun, but “chickened out” at the beer cooler.
Although defendant said “he wasn't going to rob the store,” he then
handed Frazier the gun, thereby facilitating the crime, and drove
the getaway car. No evidence was presented regarding any witness
or witnesses who could describe defendant's initial participation
in the robbery plot followed by his withdrawal; therefore, no
instruction on withdrawal was warranted. Accordingly, we hold the
trial judge did not err in failing to give the instruction, and
defense counsel was not ineffective in failing to seek it.
Defendant next claims the State failed to adduce sufficient
evidence under N.C. Gen. Stat. § 15A-1340.14(f) (2004) to support
the prior record level found by the court at sentencing. During his
cross-examination at trial, defendant had acknowledged prior
convictions for possession with intent to sell or deliver cocaine
in 1993, and for assault on a law enforcement officer “concurrent
with my felony[.]” When asked if he had been convicted of
possession of drug paraphernalia in 1996, he replied, “No, I ain't
never been to court on nothing like that. Not that I recall.
Unless it was something that run concurrent with my other charges.”
At sentencing, the prosecutor tendered a prior record worksheet thatlisted a 1996 conviction for possession of drug paraphernalia and
a 1993 conviction for injury to personal property, in addition to
the two offenses admitted by defendant. The prosecutor then had the
following exchange with defense counsel:
[PROSECUTOR]: . . . Would you stipulate that
[defendant] has five points placing him at
prior record level three?
. . .
[DEFENSE COUNSEL]: I can't stipulate, but we
don't argue with the record. My client doesn't
remember, as he's indicated earlier, possession
-- I mean conviction for possession of drug
paraphernalia.
Although the prosecutor made no additional proffer, the trial court
found “from the evidence presented that the [d]efendant's prior
record level [is] three.” The judgment reflects a finding of five
prior record points, including two points for misdemeanors not
acknowledged by defendant in his testimony.
Under N.C. Gen. Stat. § 15A-1340.14(f), “[t]he State bears the
burden of proving, by a preponderance of the evidence, that a prior
conviction exists and that the offender before the court is the same
person as the offender named in the prior conviction.” “There is
no question that a worksheet, prepared and submitted by the State,
purporting to list a defendant's prior convictions is, without more,
insufficient to satisfy the State's burden in establishing proof of
prior convictions." State v. Eubanks, 151 N.C. App. 499, 505, 565
S.E.2d 738, 742 (2002). Likewise, “[a] statement by the State that
an offender has . . . points, and thus is a [certain] record level,
. . . if only supported by a prior record level worksheet, is notsufficient to meet the catchall provision found in [N.C. Gen. Stat.]
§ 15A-1340.14(f)(4), even if uncontested by defendant.” State v.
Riley, 159 N.C. App. 546, 557, 583 S.E.2d 379, 387 (2003) (citations
omitted).
Relying on Eubanks, the State contends that defense counsel's
response to the prosecutor could "reasonably be construed as a
stipulation by defendant that he had been convicted of the charges
listed on the worksheet.” Id., 151 N.C. App. at 506, 565 S.E.2d at
743. In Eubanks, the following exchange occurred at sentencing:
THE COURT: Evidence for the State?
[THE PROSECUTOR]: If Your Honor please, under
the Structured Sentencing Act of North
Carolina, the defendant has a prior record
level of four in this case, Your Honor.
THE COURT: Do you have a prior record level
worksheet?
[THE PROSECUTOR]: Yes, sir, I do.
THE COURT: All right. Have you seen
that,[defense counsel]?
[DEFENSE COUNSEL]: I have, sir.
THE COURT: Any objections to that?
[DEFENSE COUNSEL]: No, sir.
Id., 151 N.C. App at 504-05, 565 S.E.2d at 742. Here, unlike in
Eubanks, defendant affirmatively denied the prior conviction for
possession of drug paraphernalia, and his counsel expressly refused
the prosecutor's invitation to stipulate to the convictions. Our
Supreme Court has said “a stipulation need not follow any particular
form, [but] its terms must be definite and certain . . . and it is
essential that they be assented to by the parties or thoserepresenting them.” State v. Alexander, 359 N.C. 824, 828, 616
S.E.2d 914, 917 (2005). Because defendant did not definitely and
clearly stipulate to the prior convictions listed on the worksheet
and the State provided no proof of two of the convictions, we must
remand the case for a new sentencing hearing.
The record includes an additional assignment of error not
addressed in defendant's appellate brief. It is deemed abandoned
pursuant to N.C.R. App. P. 28(b)(6) (2005).
No error in trial; remanded for resentencing.
Judges WYNN and JACKSON concur.
Report per Rule 30(e).
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