Converted WP file 050802-1

    Nielsen, an eighteen year old high school senior, testified a friend referred him to Browder for the purpose of obtaining a false identification (“false I.D.”) to buy alcohol. On 14 May 2004,Nielsen did not know Browder but called him to find out about obtaining the false I.d. During the phone conversation, Nielsen and Browder agreed to meet at a gas station, so Browder could deliver the false I.D. and some cocaine in exchange for three hundred dollars ($300.00). Defendant and Drequies Valentine (“Valentine”) were at Browder's home when Nielsen called. Both accompanied Browder to the gas station.
    Nielsen testified that after he arrived to the gas station, Valentine told him to enter Browder's vehicle. Nielsen sat in the back passenger's seat behind defendant who was seated in the front passenger's seat. Valentine sat next to Nielsen. Browder drove the car.
    While driving toward South Carolina on Interstate 26 for approximately twenty minutes, all four occupants used cocaine. Browder exited the interstate near Tuxedo, and parked the car on Anders Road near a house. Valentine explained to Nielsen they were waiting on an individual inside the house to provide them with the false I.D. and cocaine. Nielsen and Valentine waited outside the car. Nielsen gave Valentine the three hundred dollars ($300.00) to pay for the false I.D. Nielsen testified he was looking around, and when he turned his head back toward Valentine, Valentine cut Nielsen's throat with a knife and immediately ran away with Nielsen's money.
    Nielsen opened the back passenger car door and screamed for help. Blood from his wound dripped onto the car seat. Defendant told Nielsen to get out of the car. Browder and defendant droveoff. Nielsen used his cellular phone to call 911. He ran to the nearby house and asked a woman inside to help him. She refused to allow him to enter her house, but she agreed to call for emergency help. Nielsen was taken to a nearby hospital. He suffered a deep cut in his throat and underwent surgery.

    Browder testified: (1) he was charged with armed robbery and assault with a deadly weapon with intent to kill inflicting serious injury for the events that occurred on 14 May 2004, and; (2) he had entered into a plea agreement where the charges were reduced to a single count of conspiracy to commit common law robbery.
    Browder met Nielsen at the gas station for the first time. Browder testified that prior to meeting Nielsen, he, Valentine and defendant planned to rob Nielsen. The plan was for defendant to sit in the front passenger seat, and Nielsen to sit in the back passenger seat. Defendant was to lean his seat back and pin Nielsen in his seat while Valentine took Nielsen's money.
    Browder testified that when Nielsen got inside the car, Valentine instructed Browder to drive to a quiet location. When they arrived at Anders Road, Valentine and Nielsen got out of the car. A few minutes later defendant said he needed his cellular phone. He got out of the vehicle. The assault happened moments after defendant exited the car. Browder testified he heard Nielsen say, “[n]o, what did you do that for?” Defendant jumped back inside the car and told Browder to drive off. They drove away fromthe scene and picked up Valentine, who had run away from the scene. Valentine threw the knife out of the vehicle's window.
    Browder drove to a gas station to purchase some gas and cigarettes. While he was getting gas, Valentine and defendant cleaned Nielsen's blood out of the backseat of the car.
    Defendant moved to dismiss the charges of robbery with a dangerous weapon and assault with a deadly weapon with intent to kill inflicting serious injury. The trial court denied defendant's motion. Defendant appeals.

    Defendant contends the State failed to tender sufficient evidence that a robbery was committed by the possession or use of a weapon. We disagree.
    Pursuant to N.C. Gen. Stat. § 14-87(a) (2005), the elements of armed robbery include:
        Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time, either day or night, or who aids or abets any such person orpersons in the commission of such crime, shall be guilty of a Class D felony.
    Defendant argues Nielsen voluntarily gave up the three hundred dollars ($300.00) in anticipation of receiving his false I.D. Defendant contends it is “undisputed that [Nielsen] handed over his money due to trickery, not violence or the threat thereof.” Nielsen testified that he and Valentine waited outside the car for the false I.D. card to be delivered. After he paid Valentine, Nielsen gazed around while he waited. Approximately five minutes passed before Valentine cut Nielsen's throat.
    Defendant's argument is premised on his assertion that an armed robbery cannot have occurred unless Valentine used his knife to forcefully take the money from Nielsen. Our Supreme Court, however, has “held that the exact time relationship, in armed robbery cases, between the violence and the actual taking is unimportant as long as there is one continuing transaction amounting to armed robbery with the elements of violence and of taking so joined in time and circumstances as to be inseparable.” State v. Hope, 317 N.C. 302, 305-306, 345 S.E.2d 361, 363-64 (1986) (internal quotation marks and citations omitted) (holding that armed robbery occurred when defendant shoplifted a coat and then showed a gun when the store clerks attempted to stop him from leaving the store with the coat). This Court has further held that:
        [a] defendant's threatened use of his [dangerous weapon] is deemed concomitant with and inseparable from his robbery attempt where the evidence shows that (1) the [weapon] was used to facilitate the defendant's escape, and(2) the taking of property coupled with the escape constitutes one continuous transaction. This standard applies even if there is no evidence that defendant used force or intimidation before the taking of property.

State v. Gaither, 161 N.C. App. 96, 100, 587 S.E.2d 505, 508 (2003) (internal citations omitted) (holding that armed robbery occurred when defendant unlawfully took shirts from a store premises and showed a gun to security officers when they stopped him), disc. rev. denied, 358 N.C. 157, 593 S.E.2d 83 (2004).
    In this case, while Nielson may have voluntarily handed Valentine his money, “[h]ornbook law dictates that property need not be 'attached' to a person in order for a person to retain legal possession of it . . . .” State v. Barnes, 125 N.C. App. 75, 79, 479 S.E.2d 236, 238, aff'd per curiam, 347 N.C. 350, 492 S.E.2d 355 (1997) (citation omitted). “Thus, just because a thief has physically taken an item does not mean that its rightful owner no longer has possession of it.” Id.
    A jury could find from the evidence that Valentine used his knife in order to escape with the money without Nielson's attempting to regain the money once he realized that Valentine would not be giving him a false I.D. Because a reasonable juror could find that the use of force was necessary to complete the unlawful taking of the money, the State offered substantial evidence of an armed robbery to overcome defendant's motion to dismiss. See id. at 79, 479 S.E.2d at 238-39 (“Defendant Hooks' display of a handgun was thus necessary to the completion of the taking, viz., defendant applied force when it became apparent thesuccess of the taking required it.”); see also State v. Bellamy, 159 N.C. App. 143, 149, 582 S.E.2d 663, 668 (holding that an armed robbery occurred because “[d]efendant's brandishing of a weapon . . . was necessary to complete the taking of the videos by thwarting [the store clerk's] attempt to retain lawful possession of them”) (citation omitted), cert. denied, 357 N.C. 579, 589 S.E.2d 130 (2003).
    Sufficient evidence was presented from which a jury could reasonably find defendant to be guilty of armed robbery, to deny his motion to dismiss. This assignment of error is overruled.

    Defendant also argues his conviction for assault with a deadly weapon with intent to kill inflicting serious injury should be vacated. We disagree.
    The trial court instructed the jury regarding the acting in concert theory as follows:
        For a person to be guilty of a crime, it is not necessary that he personally do all of the acts necessary to constitute the crime. If two or more persons join in a common purpose to commit a robbery with a dangerous weapon, each of them, if actually or constructively present, is not only guilty of that crime, if the other person committed a crime, but is also guilty of any other crime committed by the other in pursuance of the common purpose to commit robbery with a dangerous weapon; or the natural or probable consequence thereof.

    The trial court's acting in concert instruction was more narrow than precedents allow. For defendant to be guilty of armed robbery, under the acting in concert theory, the trial court's instruction suggests defendant would have had to conspire withValentine to commit robbery with a dangerous weapon. Our Supreme Court has stated:
        [t]he mere presence of a person at the scene of a crime at the time of its commission does not make him guilty of the offense, but that if two persons are acting together, in pursuance of a common plan and common purpose to rob, and one of them actually does the robbery, both would be equally guilty within the meaning of the law and if two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose; that is, the common plan to rob, or as a natural or probable consequence thereof.

State v. Westbrook, 279 N.C. 18, 41-42, 181 S.E.2d 572, 586 (1971) (emphasis supplied), rev'd on other grounds, 408 U.S. 939, 33 L. Ed. 2d 761 (1972).
    In State v. Joyner, our Supreme Court affirmed defendant's conviction for first-degree rape and armed robbery. 297 N.C. 349, 356-57, 255 S.E.2d 390, 395 (1979). The defendant argued there was insufficient evidence from which to convict him, and the trial court erred when it instructed the jury on the acting in concert theory. Id. The Court stated:
        The principle of concerted action need not be overlaid with technicalities. It is based on the common meaning of the phrase “concerted action” or “acting in concert.” To act in concert means to act together, in harmony or in conjunction one with another pursuant to a common plan or purpose.

        . . . .

        Where the state seeks to convict a defendant using the principle of concerted action, that this defendant did some act forming a part of the crime charged would be strong evidencethat he was acting together with another who did other acts leading toward the crimes' commission. That which is essentially evidence of the existence of concerted action should not, however, be elevated to the status of an essential element of the principle. Evidence of the existence of concerted action may come from other facts. It is not, therefore, necessary for a defendant to do any particular act constituting at least part of a crime in order to be convicted of that crime under the concerted action principle so long as he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.

Id. (internal citation omitted) (emphasis supplied).
    Defendant joined in the purpose to commit robbery and is guilty not only of robbery, but also of robbery with a dangerous weapon. Ample evidence shows the three men planned to rob Nielsen. Defendant rode with Valentine and Browder to pick up Nielsen and then to a remote area. Defendant got out of the car after Valentine and Nielsen. After Valentine slashed Nielsen's throat, defendant jumped back into the car, shoved Nielsen out of the car, and ordered Browder to drive off to retrieve Valentine, who held the money. Sufficient evidence shows defendant was both physically present at the scene and acted together with Valentine and Browder to accomplish the common plan of robbery.
    Because defendant acted in concert with Valentine in committing the robbery, he may also be found guilty of armed robbery based on Valentine's use of a knife to assault Nielsen in order to accomplish the robbery. State v. Johnson, 164 N.C. App. 1, 12-13, 595 S.E.2d 176, 183 (evidence sufficient to showdefendant acted in concert to commit robbery with a dangerous weapon when he and two co-defendants planned to rob someone by having unarmed defendant frighten victims, but co-defendant instead menaced victims with a shotgun, and defendant took the victims' money), disc. rev. denied, 359 N.C. 194, 607 S.E.2d 659 (2004).
    Sufficient evidence was presented “to show [defendant] [acted] together with [Browder and Valentine] pursuant to a common plan or purpose” to rob Nielsen. Id. Under the acting in concert theory, under the evidence presented, a jury could find defendant guilty of assault with a deadly weapon with intent to kill inflicting serious injury. This assignment of error is overruled.

    Defendant argues the State erred when it issued a jury instruction regarding flight. Defendant contends the State failed to produce evidence defendant “took any affirmative steps to avoid apprehension beyond riding away from the scene in a car driven by Browder.”
    After the jury instructions were read to the jury, the court stated, “[b]efore handing the verdict sheets into the jury for them to begin their deliberations, are there any requests for additions to, or correlations to, or changes to the charge as given to the jury by the court from the State?” Defendant's attorney answered, “No.” Because defendant failed to object to the jury instructions at trial, he failed to preserve this issue for review. However, defendant asserts the trial court committed plain error pursuant toState v. Odom. 307 N.C. 655, 659, 300 S.E.2d 375, 378 (1983). In Odom, our Supreme Court stated:
        N.C. R. App. Proc. 10(b)(2) provides that no party may 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.
        . . . .
        T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is 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, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.

Id. (citations and internal quotations omitted).
    We cannot agree that the trial court's instruction “resulted in a miscarriage of justice.” Id. The State offered evidence that tended to show defendant took “steps to avoid apprehension.” State v. Norwood, 344 N.C. 511, 534, 476 S.E.2d 349, 359-360 (1996) (“[T]he relevant inquiry [is] whether there is evidence that defendant left the scene. . . and took steps to avoid apprehension.”), cert. denied, 520 U.S. 1158, 137 L. Ed. 2d 500 (1997). “Where there is some evidence supporting the theory of thedefendant's flight, the jury must decide whether the facts and circumstances support the State's contention that the defendant fled.” Id. at 535, 476 S.E.2d at 360.
    The State's evidence tended to show, defendant forced Nielsen out of the vehicle after Nielsen was assaulted and pled for help. Browder and defendant sped away from the scene, picked up Valentine, and stopped at a gas station to clean the car of Nielsen's blood. Browder testified that he and defendant prepared an alibi story. Defendant's actions helped him “to avoid apprehension.” Id. at 534, 476 S.E.2d at 360. This assignment of error is overruled.