An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-830

NORTH CAROLINA COURT OF APPEALS

Filed: 21 February 2006

STATE OF NORTH CAROLINA

         v.                        Cumberland County
                                No. 03 CRS 68677
TRECO WHITEHEAD                    
    

    Appeal by defendant from judgment entered 1 March 2005 by Judge B. Craig Ellis in Cumberland County Superior Court. Heard in the Court of Appeals 6 February 2006.

    Attorney General Roy Cooper, by Assistant Attorney General Floyd M. Lewis, for the State.

    Geoffrey W. Hosford for defendant-appellant.

    MARTIN, Chief Judge.

     Treco Whitehead (“defendant”) was indicted on five counts of robbery with a dangerous weapon . A jury returned a verdict of guilty of one count of robbery with a dangerous weapon, and defendant was sentenced to 103 to 133 months imprisonment.
     The evidence pertinent to this appeal tended to show: On 5 August 2003, Lamont Braithwaite was working as a clerk for the Quick Stop Food Mart. Braithwaite was working the second shift, from 3 p.m. to 12 a.m., along with his co-worker, Peggy Munden. At around 7:30 p.m., a man approached the counter to buy a pack of gum. As Braithwaite opened the register to give the man his change, the man pulled out a gun, pointed it at him, and asked forthe money in the register. Braithwaite gave the man approximately $45.00. As the man left the store, he passed Munden and told her to “[h]ave a nice day.” Braithwaite called Munden back into the store and told her that they had just been robbed. Braithwaite then called the police. Braithwaite described the robber as a black man with a medium build, about five feet ten or eleven inches tall, wearing a hat and a shirt with vertical blue and white solid colors. He also noticed that the robber's teeth “were kind of on the rotten side.”
    Braithwaite picked defendant out of a photographic line-up. At trial, Braithwaite identified defendant as the man who robbed the Quick Stop Food Mart. Additionally, defendant was ordered to stand before the jury and show his upper and lower teeth. Braithwaite observed the defendant's teeth in the court room and testified that he recognized defendant's teeth from the robbery. Munden also identified defendant in court, testifying that she was “100 percent sure” that defendant was the man that walked past her after the robbery.
    On 11 August 2003, DeeLynn Andrews was working at Pantry Store 3142. Andrews testified that at around 10:30 p.m., defendant approached her register and asked for a pack of cigarettes. When she opened the register to get defendant his change, he pointed a gun at her and she handed him the money. Defendant then told her to “[h]ave a nice day” and left the store. Andrews described the robber as being approximately five feet ten or eleven inches tall, weighing about 165 or 170 pounds, and wearing a black and whitestriped golf shirt, a black or dark blue hat with a white emblem on it, and dark pants. Andrews identified a photograph of the defendant about ten days after the robbery, and identified defendant in court as the man who robbed her store.
    On August 27, 2003, Leilani Willis was working as a cashier at the Quick Stop Food Mart. Willis testified that, at around 1:15, a man approached the register to buy a pack of gum. When Willis opened the register to give the man his change, the man put a knife to her belly and told her to “Give me all the money out of the register.” Willis gave the man somewhere between $50 and $100. Willis described the robber as a black male with a medium build, “scruffy” like he needed a shave, about five feet eight inches tall and weighing about 150 pounds. The man was wearing a dark blue baseball cap, black shades, a shirt with “big blocks” of blue and white stripes, and dark colored jeans. Willis was unable to identify the robber, either in a lineup or at trial.
    The State filed a motion seeking to join for trial robberies allegedly committed by defendant on 5, 10, 11 and 27 August and 1 September 2003. Prior to trial, the State declined to proceed on the charge relating to the 10 August 2003 robbery. At the close of the State's case, the court dismissed the charge relating to the alleged robbery on 1 September 2003. Defendant was convicted solely of the robbery with a dangerous weapon of Lamont Braithwaite. Defendant was sentenced to a term of 103 to 133 months imprisonment. Defendant appeals.
     Defendant first argues that the trial court erred by denyinghis requested jury instructions on the presumption of innocence and his right not to testify. Prior to trial, defendant proffered the following special preliminary jury instruction regarding the presumption of innocence:
            The Defendant has entered a plea of not guilty and, by his plea, he has answered and denied the allegations in this case. He has done all the law requires of him. He has no burden or duty or responsibility to prove anything at all with regard to these allegations.

            Under our system of justice, a defendant who pleads not guilty is not required to prove his innocence; he is presumed to be innocent. This presumption of innocence remains with him throughout these proceedings unless and until the jurors selected to serve in this case are convinced from the facts and the law beyond a reasonable doubt that the State has proven the defendant's guilt.

            The burden of proof rests entirely upon the State of North Carolina to prove that the defendant is guilty beyond a reasonable doubt. In effect, while this case is entitled the State of North Carolina versus Treco Whitehead, the defendant is not on trial here. What is on trial is the State's case. The State, and the State alone, has the burden of proof.

            As I have said, the State's burden is to prove the guilt of the defendant beyond a reasonable doubt, not beyond all doubt or any shadow of a doubt, but proof beyond any doubt based upon reason and common sense. A reasonable doubt is a doubt based upon reason and common sense, arising out of the evidence presented in a particular case, or the luck of insufficiency as the case may be. Proof beyond a reasonable doubt is proof that fully satisfies or entirely convinces the jury of a defendant's guilt.

            The mere fact that the defendant has been charged is no evidence of guilt. A charge is simply the mechanical means by which theprocess is begun.

            If the State meets its burden of proof, that is, if the State proves that the defendant is guilty beyond a reasonable doubt, it would be the duty of the jury to say by its verdict that the defendant is guilty. On the other hand, if the State fails to meet its burden of proof, the presumption of innocence would remain in effect and the defendant would be entitled to a verdict of not guilty.

        . . .

            Finally, as I have previously instructed you, the defendant in this case has entered a plea of not guilty to the pending charges. He has answered the allegations by that plea - he has done all the law requires of him. The State of North Carolina has the burden of proving that the defendant is guilty beyond a reasonable doubt. The state must prove each and every element of the crime, or crimes, charged beyond a reasonable doubt. I will, at a later time, give you more detailed instructions on the law that applies to this case.

The trial court denied the request, stating that the instructions were “similar to what I usually give.” The court then instead gave the following preliminary instruction regarding the presumption of innocence:
            As I have indicated to you, the defendant has entered pleas of not guilty. Under our system of justice, a defendant who pleads not guilty is not required to prove his innocence; he is presumed to be innocent. This presumption remains with a defendant throughout the trial until the jury selected to hear the case is convinced from the facts and the law beyond a reasonable doubt of the guilt of defendant.

            The burden of proof is on the state to prove to you that the defendant is guilty beyond a reasonable doubt. A reasonable doubt is not a vain or a fanciful doubt. It is a doubt based on reason and common sense arisingout of some or all of the evidence that has been presented or the lack or insufficiency of the evidence as the case may be. Proof beyond a reasonable doubt is proof that fully satisfies or entirely convinces you of the defendant's guilt.

            There is no burden or duty of any kind on the defendant. The mere fact that he has been charged with a crime is no evidence of guilt. A charge is merely the mechanical or administrative way by which a person is brought to a trial.

            If the state proves guilt beyond a reasonable doubt, then the function of this jury by its verdict is to say “guilty.” If the state fails to prove guilt or if you have a reasonable doubt, it is then your duty to say “not guilty.”
    Defendant also proffered the following special jury instruction prior to their deliberations regarding the presumption of innocence and his decision not to testify:
        The defendant in this case has not testified. You will recall that I have instructed you that the defendant is presumed to be innocent. In other words, you must accept as being true that the fact that the defendant is innocent unless and until the state proves the contrary.

        Consistent with the presumption of innocence is the fundamental principle the defendant has no duty, no responsibility, no burden of proving anything with regard to the allegations in this case.

        I further instruct you the defendant is absolutely entitled to rely on this presumption of innocence. The State of North Carolina gives this privilege to anyone who is accused. This same law also assures him that his decision to rely upon this presumption of innocence, that is, his decision not to testify, creates no presumption against him. Therefore, I instruct you that his silence, his reliance upon the presumption of innocence is not to influence your decision in any way.The trial court again denied the defendant's request and instead instructed the jury that:
        The defendant has entered pleas of not guilty to each of the charges. The fact that he has been charged is no evidence of guilt. Under our system of justice, when a defendant pleads not guilty, he is not required to prove his innocence; he is presumed to be innocent. The state must prove to you that the defendant is guilty beyond a reasonable doubt.

        . . .

        . . . In this case, the defendant has not testified. The law of North Carolina gives him this privilege. The same law also assured him that his decision not to testify creates no presumption against him; therefore his silence is not to influence your decision in any way.

Defendant contends that the trial court's instructions were inadequate.
    After careful review of the record, briefs and contentions of the parties, we find no error. Our Supreme Court has stated that:
        A trial court is not required to give a requested instruction in the exact language prayed for. If a requested instruction is correct in law and supported by the evidence, the court, “while not required to parrot the instructions 'or to become a mere judicial phonograph for recording the exact and identical words of counsel,' must charge the jury in substantial conformity to the prayer.” Whether the trial court instructs using the exact language requested by counsel is a matter within its discretion and will not be overturned absent a showing of abuse of discretion.

State v. Herring, 322 N.C. 733, 742, 370 S.E.2d 363, 369 (1988)(citations omitted). In the instant case, as in Herring, “the record discloses that the trial court instructed the jury insubstantial conformity with the defense counsel's request.” Id. Moreover, the trial court's instructions were in accordance with the law. The court accurately charged the jury regarding the presumption of innocence, the burden of proof, and the defendant's right not to testify. We hold there was no abuse of discretion.
    Defendant next argues that the trial court erred by allowing the State's motion for joinder. Defendant asserts that the robberies here did not have a transactional connection and the State's evidence did not show they were part of a single scheme or plan. We are not persuaded.
    This Court has stated that:
        Two or more offenses may properly be joined for trial if the offenses are “based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan.” This Court has held that in ruling upon a motion for joinder, a trial judge must utilize a two-step analysis: (1) a determination of whether the offenses have a transactional connection and (2) if there is a connection, a consideration of whether the accused can receive a fair hearing on the consolidated offenses at trial. The motion to join is within the sound discretion of the trial judge, and the trial judge's ruling will not be disturbed absent an abuse of discretion. However, if there is “no transactional connection, then the consolidation is improper as a matter of law.”

        . . . . In determining whether offenses are part of the same series of transactions, the following factors must guide the court: “(1) the nature of the offenses charged; (2) any commonality of facts between the offenses; (3) the lapse of time between the offenses; and (4) the unique circumstances of each case.”

State v. Simmons, 167 N.C. App. 512, 516, 606 S.E.2d 133, 136-37(2004)(emphasis in the original)(citations omitted), disc. review denied, 359 N.C. 325, 611 S.E.2d 844 (2005). In the case sub judice, we find there was a sufficient forecast of evidence for the trial court to determine that the offenses were part of a common scheme or plan. The allegations all pertained to armed robberies of convenience stores in Cumberland County between 5 August and 1 September 2003. The witnesses all gave similar physical descriptions of the suspect. In each robbery, the robber feigned making a purchase and then robbed the clerk while the cash register drawer was open. It even appears that the robber wore identical shirts in the 5 August and 27 August 2003 robberies.
    Having determined that there was a sufficient transactional connection to justify joinder, the next issue for the Court to consider is whether defendant was deprived of a fair hearing by joinder of the charges. In determining this issue, this Court has stated the following:
        we are mindful that “the question posed is whether the offenses are so separate in time and place and so distinct in circumstances as to render a consolidation unjust and prejudicial to an accused.” In the context of joinder of charges, this Court has explained that “while the admissibility of [the] evidence pursuant to Rule 404(b) is not conclusive evidence of the absence of prejudice, it is a factor that we may consider.”

Simmons, 167 N.C. App. at 517, 606 S.E.2d at 137 (citing State v. Bowen, 139 N.C. App. 18, 28, 538 S.E.2d 248, 254 (2000))(emphasis in original). Here, if the offenses had not been joined, evidence of the separate robberies would have been admissible pursuant toRule 404(b) for the purpose of showing a common scheme. Furthermore, we note that the jury was instructed to consider the charges separately, and there were separate verdict sheets for each charge. “We have long held that a jury is presumed to follow the instructions given to it by the trial court.” State v. Wiley, 355 N.C. 592, 637, 565 S.E.2d 22, 52 (2002)(citations omitted), cert. denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003). Thus, we conclude that defendant was not deprived of a fair hearing, and the trial court did not abuse its discretion by allowing joinder of the charges. Accordingly, we hold that defendant had a fair trial, free from prejudicial error.
    No error .
    Judges BRYANT and GEER concur.
     Report per Rule 30(e).
    

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