An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 5 December 2006
STATE OF NORTH CAROLINA
Nos. 04 CRS 216136
DONTAVIS JAMAR ANDERSON 05 CRS 024280
Appeal by defendant from judgment entered 29 September 2005 by
Judge Nathaniel J. Poovey in Mecklenburg County Superior Court.
Heard in the Court of Appeals 13 November 2006.
Attorney General Roy Cooper, by Assistant Attorney General Q.
Shanté Martin, for the State.
Jarvis John Edgerton, IV, for defendant-appellant.
Dontavis Jamar Anderson (defendant) appeals from judgment
entered after a jury found him to be guilty of robbery with a
firearm and found the aggravating factor of joining with more than
one other person in committing the offense and not being separately
charged with committing a conspiracy. We find no error.
The State's evidence tended to show Mooresville Police
Officer, Yakisha Norris (Norris), was engaged in a part-time
business of selling clothes from her personal vehicle while off-
duty and during holidays. On 10 April 2004, the day before Easter
Sunday, Norris met a woman named Jay while promoting her clothing
business. Norris gave Jay her business card. That night, Jay called Norris between 10:00 and 11:00 p.m. and
informed Norris that she knew other individuals who were interested
in purchasing clothes for Easter morning. Norris agreed to meet
Jay at a Quick-N-EZ convenience store in Charlotte, North Carolina.
When Norris arrived at the convenience store, Jay was not present.
As Norris prepared to leave, Jay called Norris's cellular telephone
and asked if Norris would pick her up.
Norris drove to a house to which Jay had directed her. Jay
exited the house and entered the front seat of Norris's vehicle.
Jay directed Norris to drive to a house where Jay's brother and
cousin were purportedly interested in purchasing some of Norris's
clothes. Defendant and another male entered Norris's vehicle and
directed Norris to yet another location, where they could obtain
the money to purchase the clothes.
After three to five minutes of driving, defendant told Norris
to stop her vehicle. Defendant pointed a gun at Norris and
demanded, give me everything you have got. Norris gave defendant
her pocketbook. Defendant and Jay ordered Norris to exit her
vehicle and open the trunk. After going through the clothes in
Norris's trunk, defendant, Jay, and the other male left Norris on
the side of the road and drove away in Norris's car.
Norris used her cellular telephone to call the police and
provided a description of her vehicle and the assailants. The
police apprehended defendant, Jay, and the other male near the
location where Norris had originally picked up defendant and the
other male. Norris identified all three suspects as her assailantsand specifically identified defendant as the gunman. Defendant did
not offer any evidence in his defense.
On 28 September 2005, a jury found defendant guilty of robbery
with a firearm. The trial court entered the sentencing phase and
the jury found defendant to be guilty beyond a reasonable doubt of
the aggravating factor of joining with more than one other person
in committing the offense and was not charged with committing a
conspiracy. On 29 September 2005, the trial court sentenced
defendant to a minimum of eighty-seven months and a maximum of 114
months imprisonment. Defendant appeals.
Defendant argues the trial court's jury instruction that they
could consider all the evidence presented in the guilt or innocence
phase of his trial during the sentencing phase of his trial was
error because the instruction: (1) violated N.C. Gen. Stat. § 15A-
1340.16(d) and (2) was likely to mislead the jury.
III. N.C. Gen. Stat. § 15A-1340.16(d)
Defendant contends the trial court's jury instruction stating,
you will be able to consider all the evidence that you heard in
the first phase of this trial in this the second phase of the
trial, was error. Defendant argues this instruction violated N.C.
Gen. Stat. § 15A-1340.16(d), which states in part, Evidence
necessary to prove an element of the offense shall not be used to
prove any factor in aggravation, and the same item of evidence
shall not be used to prove more than one factor in aggravation. During defendant's trial, the trial court instructed the jury
on the elements the State was required to prove to find defendant
guilty of robbery with a firearm. The trial court also instructed
the jury that they could find defendant guilty of robbery with a
firearm on a theory of acting in concert. The jury found defendant
to be guilty. During the sentencing phase of the trial, the jury
found the aggravating factor that defendant had joined with more
than one other person in committing the offense and was not
separately charged with committing a conspiracy beyond a reasonable
Defendant argues, [t]he evidence required to apply the acting
in concert theory for the substantive offense is almost completely
the same as, and substantially overlaps with, the evidence . . .
needed to support the aggravating factor. We disagree.
This Court addressed a similar argument in State v. Sellers,
155 N.C. App. 51, 574 S.E.2d 101 (2002). In Sellers, a jury found
the defendant guilty of assault with a firearm on a law enforcement
officer, assault with a deadly weapon inflicting serious bodily
injury, assault with a deadly weapon, and discharging a firearm
into occupied property. 155 N.C. App. at 54, 574 S.E.2d at 103.
The trial court found the aggravating factor that the defendant had
knowingly created a great risk of death to more than one person by
means of a weapon or device which would normally be hazardous to
the lives of more than one person for each offense. Id. Like
here, the defendant contended the trial court violated N.C. Gen.
Stat. § 15A-1340.16(d) and argued since it was necessary for theState to prove defendant used a firearm to be convicted of [the
substantive offenses] the trial court could not consider the use of
the firearm as evidence to support an aggravating factor. Id. at
57, 574 S.E.2d at 105.
This Court disagreed and stated:
In order to prove the substantive crimes, the
State needed to prove use of the firearm, but
did not need to prove that defendant employed
a weapon normally hazardous to the lives of
more than one person, as required for finding
the aggravating factor. The State proved that
defendant utilized a semi-automatic pistol,
which in its normal use is hazardous to the
lives of more than one person and is the type
of weapon contemplated by [this statute].
Therefore, we hold additional evidence was
required from the State to prove the existence
of this aggravating factor, beyond that
required for the offenses themselves, and the
trial court did not violate N.C. Gen. Stat. §
15A-1340.16(d) in finding this [aggravating]
Id. at 57, 574 S.E.2d at 105-06 (emphasis supplied) (internal
quotations and citations omitted).
Here, the State was required to present additional evidence
beyond the evidence to prove the elements of robbery with a firearm
in order to prove the aggravating factor that defendant joined with
more than one other person in committing the offense and was not
charged with committing a conspiracy. A defendant can be found
guilty of a substantive offense under a theory of acting in
concert, [i]f two or more persons act together, with a common
purpose to commit the crime. State v. Francis, 341 N.C. 156, 160-
61, 459 S.E.2d 269, 272 (1995) (citing State v. Taylor, 337 N.C.
597, 608, 447 S.E.2d 360, 367 (1994)). The aggravating factorrequires the State to prove defendant joined with more than one
other person in committing the offense and was not charged with
committing a conspiracy. N.C. Gen. Stat. 15A-1340.16(d)(2).
To prove the aggravating factor, the State had to tender
evidence of two elements beyond that required for the offense
[itself]. Sellers, 155 N.C. App. at 57, 574 S.E.2d at 106.
First, while acting in concert requires two or more persons, the
aggravating factor requires the State to prove the defendant
joined with more than one other person. Francis, 341 N.C. at 160,
459 S.E.2d at 272; N.C. Gen. Stat. 15A-1340.16(d)(2). Acting in
concert requires the involvement of at least two people in the
substantive crime, while the aggravating factor requires proof of
a conspiracy of at least three people, including the defendant, who
committed the offense. Id. Second, the aggravating factor
requires the State to prove the defendant was not charged with
committing a conspiracy. N.C. Gen. Stat. 15A-1340.16(d)(2).
Proof tending to show defendant acted in concert in committing the
substantive offense of robbery with a firearm requires neither
element. Francis, 341 N.C. at 160-61, 459 S.E.2d at 272. This
assignment of error is overruled.
IV. Misleading Instructions
Defendant argues the trial court's jury instruction, allowing
all evidence presented in the guilt or innocence phase of his trial
could also be considered during the sentencing phase of his trial
misled the jury about the law to apply. We disagree.
This Court has stated: On appeal, this Court reviews jury
instructions contextually and in their
entirety. If the instructions present the law
of the case in such a manner as to leave no
reasonable cause to believe the jury was
misled or misinformed, then they will be held
to be sufficient. The appealing party must
demonstrate that the error in the instructions
was likely to mislead the jury.
State v. Crow, ___ N.C. App. ___, ___, 623 S.E.2d 68, 73 (2005)
(internal quotations and citations omitted), disc. rev. denied, 360
N.C. 485, 632 S.E.2d 495 (2006).
The trial court's instruction was not likely to mislead the
jury when viewed in its entirety. Later in the proceeding, the
trial court specifically charged the jury on the aggravating factor
[Y]ou must now consider whether the
aggravating factor exists that the defendant
joined with more than one other person in
committing the offense and was not charged
with committing a conspiracy . . . .
The State must prove to you beyond a
reasonable doubt that the aggravating factor
exists . . . .
Members of the jury, having found the
defendant guilty of the offense of robbery
with a firearm you must now consider the
Do you find from the evidence beyond a
reasonable doubt the existence of the . . .
After reviewing the instructions in their entirety, defendant
failed to show the jury was misled by the trial court's
instruction. This assignment of error is overruled.
The State was required to present additional evidence beyond
that required to prove the substantive offense of robbery with a
firearm under an acting in concert theory in order to prove the
existence of the aggravating factor. The trial court did not
violate N.C. Gen. Stat. § 15A-1340.16(d) in instructing the jury
during the sentencing phase of defendant's trial.
Defendant failed to show the trial court's instruction,
allowing all evidence presented during the guilt or innocence phase
of his trial to be considered by the jury during the sentencing
phase of his trial, was likely to mislead the jury. Defendant
received a fair trial and lawful sentence, free from prejudicial
errors he preserved, assigned, and argued.
Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).
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