STATE OF NORTH CAROLINA
v. Guilford County
No. 04 CRS 68948
CHAMRATH PEAN
Attorney General Roy Cooper, by Assistant Attorney General
Elizabeth F. Parsons, for the State.
Brian Michael Aus for defendant appellant.
McCULLOUGH, Judge.
Defendant appeals from a judgment imposed on a jury conviction
of robbery with a dangerous weapon.
The State presented evidence tending to show that Thuy Ha and
her husband, Thao Nguyen, operated the Me Kong Market on High Point
Road in Greensboro. At approximately 3:00 p.m. on 27 December
2003, two men entered the Me Kong Market and demanded money. One
of the men, whom Thuy Ha identified as Chinh Nguyen, held a gun to
the head of Thuy Ha while the other man grabbed a bag of money and
ran. Three other men, with faces covered, then entered the store
and held guns to the head of Thao Nguyen. Chinh Nguyen grabbed the
cash register and ran out of the store. One of the other men fled
when Thao Nguyen told them that the police were coming. Theremaining two men fled after Thao Nguyen hit one of them in the
head with a tea box. Thao Nguyen chased the men and saw them get
into an Oldsmobile automobile. Thao Nguyen memorized the last four
digits of the license plate of the vehicle and provided it to the
police.
A police officer searched a computer database for vehicles
matching the description given by Thao Nguyen and bearing the same
last four digits on the registration plate. He located an
Oldsmobile automobile bearing the same last four digits registered
to a resident of 3915 Clifton Road. The officer went to this
residence. Kevin Aker answered the door. Although the officer
asked to speak to the registered owner, who was a different person,
Aker asked, “Are you here for me?” The officer replied, “Why would
I be here for you?” Aker responded, “Because of what happened at
the shopping center on High Point Road.”
Aker testified for the State that on 27 December 2003, Chinh
Nguyen called him and asked for a ride. Aker agreed to give a ride
in exchange for some marijuana. Aker picked up four men, whom he
identified as Chinh Nguyen, defendant, defendant's brother, and a
man named Kauven at a store. He drove and parked in the back
parking lot of the Me Kong Market. While he remained in the
vehicle, the four men got out and went into the store. He heard a
scream. He looked in his rearview mirror and saw the four men at
his door and a lady screaming. The four men jumped into his car.
They told him that they had robbed the store. He saw that Chinh
Nguyen, who was seated with him on the front seat, had a gun in hishand. They directed him to drive back to the same place where he
had picked them up. The men exited his vehicle, and he drove home.
Defendant testified that he rode with Aker and the others to
the store; that he accompanied the three other men into the store;
and that when he saw the others were armed, he fled from the store.
Defendant contends the court committed plain error by allowing
two police officers to testify regarding the disposition of charges
against non-testifying codefendants. He argues that the evidence
had a probable impact upon the jury's verdict because the jury
could have reasoned that since the others pled guilty, defendant
must also be guilty.
By assigning plain error, defendant concedes that he did not
object to admission of the evidence. See State v. Oliver, 309 N.C.
326, 335, 307 S.E.2d 304, 312 (1983). Review for plain error is
limited to determining whether this case is
“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.'”
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(quoting
United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.
1982) (footnotes omitted) (emphasis in original)).
Prior to admission of the testimony to which defendant hasassigned as plain error, defendant elicited from Aker, one of the
codefendants, testimony that he had been charged with robbery with
a dangerous weapon arising out of this incident. Chinh Nguyen,
another codefendant, also testified prior to admission of the
officers' testimony that he had pled guilty to robbing the Me Kong
Market on 27 December 2003.
Defendant's testimony tended to show
that he had no knowledge of his codefendants' plans to rob the
store and that once he saw they had guns, he fled the store.
Evidence that the codefendants pled guilty did not make it any more
or less probable that defendant had knowledge of their plans to rob
the store. For these reasons, we conclude that there was no plain
error in the trial court's admission of the officers' testimony
concerning the disposition of the charges against the non-
testifying codefendants.
Defendant also contends the court committed plain error by
failing to instruct the jury that “mere presence” at the scene of
a crime is not evidence of guilt of the crime. Again, we do not
find plain error. The trial court's instructions made clear that
in order to find defendant guilty, the jury had to find defendant
joined together with the others in a common purpose to commit the
armed robbery. See State v. Lucas, 353 N.C. 568, 592, 548 S.E.2d
712, 728 (2001), overruled on other grounds by State v. Allen, 359
N.C. 425, 615 S.E.2d 256 (2005) (holding no plain error when the
trial court's instructions as a whole adequately convey the
principle that a person's presence at the scene, by itself, is not
sufficient to support a conviction).
No error.
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).
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