An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-162


Filed: 17 January 2006


         v.                        Iredell County
                                No. 97 CRS 7004

    Appeal by defendant from judgment entered 14 January 1998 by Judge Charles C. Lamm, Jr., in Iredell County Superior Court. Heard in the Court of Appeals 9 January 2006.

    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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