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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-574

NORTH CAROLINA COURT OF APPEALS

Filed: 3 April 2007

STATE OF NORTH CAROLINA

v .                         Alamance County
                            No. 05 CRS 51163
GARY LEE TATE

    Appeal by defendant from judgment entered 23 September 2005 by Judge Orlando F. Hudson in Alamance County Superior Court. Heard in the Court of Appeals 7 December 2006.

    Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Grady L. Balentine, Jr., for the State.

    Haral E. Carlin, for defendant-appellant.

    JACKSON, Judge.

    On the night of 6 February 2005, Tele Richmond (“Richmond”) went to the home of Tynisha Lee (“Lee”), and asked if she would drive for him and indicated that he would pay her. Lee's friend Crashonda Alston (“Ms. Alston”) also was present, and went with Richmond and Lee. The three got into Richmond's car, and joined Richmond's girlfriend and two other males, including Rodney Alston (“Mr. Alston”), who already were in the car. After dropping off Richmond's girlfriend at her home, Lee took over driving, and per Richmond's direction drove to another house where Gary Lee Tate (“defendant”) was picked up. Richmond then directed Lee to drive by a house on Rosenwald Street, in Burlington, North Carolina later identified as the home of the Zepeda family. Richmond referred tothe other males in the car as “team” and told them that this was the house. He then directed Lee to park several blocks from the house and that he would “chirp” her via the walkie-talkie feature on their cell phones when he needed her. Ms. Alston saw Richmond put a handgun in his coat pocket as he got out of the car. Within a few minutes Richmond contacted Lee, and she and Ms. Alston drove by the Zepeda home. At first they noticed the four males trying to get into the chainlink fence surrounding the home, and then saw them inside the fence on the home's front porch. Lee and Ms. Alston then returned to their original parking place.
    During the early morning hours of 7 February 2005 Ismiel Zepeda (“Zepeda”) was asleep in his home, along with his wife Maria, son Andy, and daughter Anna. Zepeda and his wife were awakened by the sound of their dog barking. As they started to get out of their bed they heard someone breaking through the front door. Maria Zepeda crawled over her husband and left the bedroom to check on her children. Upon leaving the bedroom she encountered two people coming towards her with one person pointing what she thought to be a pistol at her. She immediately backed into her bedroom and yelled to her husband that the intruders had a gun. The couple shut the bedroom door, and as they held it closed, her husband retrieved his gun from a bedside table and loaded it. The Zepedas eased their pressure on the door and allowed it to open. Zepeda then reached his gun outside the door and fired, hitting someone.     As this intruder fell to the floor in the hall, Zepeda jumped over him and headed toward the front of the house and his son's bedroom. Other intruders went into his son's room and shut the door. The door was being held shut against Zepeda's attempts to enter, but the pressure then eased and Zepeda opened the door. He saw his son still in his bed and the lower half of an intruder going out the window of his son's bedroom. Zepeda fired a shot above the intruder and through the window.
    Andy Zepeda had returned home about 11:30 p.m. on 6 February 2005. He locked the front gate of the chainlink fence surrounding their house with a chain and padlock. After entering the house he also locked the front door. He later went to sleep in his bedroom, which is located just to the left of the front door. During the early morning hours he was awakened by a loud bang at the front door. He then saw a tall man standing at the door of his bedroom. The man was dressed in black and aiming a gun at him. The man identified himself as “police” and told Andy not to move. As Andy remained in his bed, he heard someone trying to enter his parents' bedroom, and he heard one gunshot. The man standing in the doorway to Andy's bedroom then jumped across Andy's bed and started banging on the bedroom window with his gun. Two more men rushed into the room. As one man held the door closed the other two pushed the window open and jumped out. The man holding the door turned, yelled “wait for me,” ran to the window, and dove through it head first. Andy testified that defendant's body shape resembles thisintruder. Andy's father pushed open the door, looked first at him and then the window, and fired one shot.
    Andy immediately called 911 and reported the break-in. Upon leaving his bedroom he saw a man crawling on his back toward the front door of the house. The man told Zepeda that there was no need to call the police. The man reached the front door, opened it and crawled onto the porch. The police arrived within minutes of the 911 call being placed, and found the intruder who had crawled out the front door in the Zepeda's front yard. Zepeda informed the police he had shot this intruder. The door of the Zepeda home showed evidence of having been forced open and a window in the first bedroom upon entering the house had a broken window with what appeared to be blood on the mini blinds. The intruder found in the front yard was transported to the hospital and later identified as Richmond.
    Shortly after returning to their original parking spot, Lee and Ms. Alston were met at the car by defendant and Mr. Alston. Mr. Alston had a severely cut finger. Defendant stated that he had felt a bullet barely miss the top of his head, and Ms. Alston noticed a burn on the back of defendant's head. When asked about Richmond, defendant stated he heard Richmond say he had been hit.
    Lee then dropped off Mr. Alston at his request and drove defendant home. After dropping off defendant, Lee and Ms. Alston switched cars and drove back by the Zepeda house to check on Richmond. After seeing him move, they drove back to defendant's home, retrieved Richmond's car and drove it to Richmond's house. They informed Richmond's father that he had been shot, and he then drove them back to the Zepeda house.
    The police recovered a cell phone from within the Zepeda home that showed a record of a direct connect call having been made from the phone to Lee at 1:33 a.m. on 7 February 2005. Swabs from the suspect's vehicle, mini blinds and plastic covering from the bedroom window of the Zepeda home, and the steps of co-defendant Mr. Alston's home gave chemical indications for the presence of blood. DNA testing of the blood from the mini blinds, plastic window covering, and the steps of the Zepeda home matched the DNA of co-defendant Mr. Alston. Lee later identified the Zepeda residence for the police , and defendant subsequently was arrested at his home.
    On 7 March 2005, defendant was indicted for first degree burglary, first degree kidnapping, attempted robbery with a dangerous weapon, and assault by pointing a gun. At the conclusion of defendant's trial, the State dismissed the charges of first degree kidnapping and assault by pointing a gun. A jury found defendant guilty of first degree burglary, and not guilty of attempted robbery with a firearm. Defendant was sentenced to a term of imprisonment with the North Carolina Department of Correction, and now appeals from his conviction.
    Defendant first contends the trial court erred in submitting the charge of first degree burglary to the jury, as there was an insufficiency of the evidence to prove the crime charged. At trial, the State dismissed defendant's charges of first degreekidnapping and assault by pointing a gun. Defendant then made a motion to dismiss only the charge of attempted robbery with a firearm. The trial court denied defendant's motion. At no time did defendant make a motion to dismiss the charge of first degree burglary.
    Rule 10(b)(3) of our appellate rules provides that “[a] defendant in a criminal case may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action . . . at trial.” N.C. R. App. P. 10(b)(3) (2006). Our Supreme Court has held that “a defendant who fails to make a motion to dismiss at the close of all of the evidence may not attack on appeal the sufficiency of the evidence at trial.” State v. Spaugh, 321 N.C. 550, 552, 364 S.E.2d 368, 370 (1988). Therefore, we decline to address this assignment of error, as defendant has failed to properly preserve the issue for appellate review.
    Defendant next argues that the trial court committed reversible error in allowing the State to introduce statements of a non-testifying co-defendant, when there was insufficient evidence to establish the existence of a conspiracy to the crime of first degree burglary. At trial, Lee and Ms. Alston were permitted to testify, over defendant's objection, to statements made by Richmond. Richmond's statements were admitted pursuant to the co- conspirator exception to the hearsay rules, however, defendant contends the statements constituted inadmissible hearsay.    On appeal, the standard of review when assessing evidentiary rulings is one of an abuse of discretion. State v. Boston, 165 N.C. App. 214, 218, 598 S.E.2d 163, 166 (2004) (citing State v. Meekins, 326 N.C. 689, 696, 392 S.E.2d 346, 350 (1990)). “'A statement by one conspirator made during the course and in furtherance of the conspiracy is admissible against his co-conspirators.'” State v. Valentine, 357 N.C. 512, 521, 591 S.E.2d 846, 854 (2003) (quoting State v. Mahaley, 332 N.C. 583, 593, 423 S.E.2d 58, 64 (1992), cert. denied, 513 U.S. 1089, 130 L. Ed. 2d 649 (1995)); see also N.C. Gen. Stat. § 8C-1, Rule 801(d)(E) (2005). “Admission of a conspirator's statement into evidence against a co-conspirator requires the State to establish that: '(1) a conspiracy existed; (2) the acts or declarations were made by a party to it and in pursuance of its objectives; and (3) while it was active, that is, after it was formed and before it ended.'” Id. (quoting State v. Lee, 277 N.C. 205, 213, 176 S.E.2d 765, 769-70 (1970)). “Proponents of a hearsay statement under the co-conspirator exception must establish a prima facie case of conspiracy, without reliance on the statement at issue.” Id. (citing State v. Williams, 345 N.C. 137, 141, 478 S.E.2d 782, 784 (1996)). “In establishing the prima facie case, the State is granted wide latitude, and the evidence is viewed in a light most favorable to the State.” Id. (citing State v. Bonnett, 348 N.C. 417, 438, 502 S.E.2d 563, 577 (1998), cert. denied, 525 U.S. 1124, 142 L. Ed. 2d 907 (1999)).    Defendant contends the State failed to establish that a conspiracy existed between Richmond and defendant, such that the statements by Richmond made during the course and in furtherance of the conspiracy would be admissible hearsay against defendant. Defendant argues the State's contention that a conspiracy existed is based solely upon Richmond's statements, and that without these statements, the State presented no evidence of a conspiracy between defendant and Richmond. Evidence of a conspiracy need not be established by direct proof, and may be “'established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy.'” Id. at 522, 591 S.E.2d at 855 (quoting State v. Whiteside, 204 N.C. 710, 712, 169 S.E. 711, 712 (1933)).
    Contrary to defendant's contention, the State presented sufficient evidence of the existence of a conspiracy between defendant and Richmond, such that Richmond's statements were properly admitted pursuant to the co-conspirator exception to our hearsay rules. At trial, the State presented evidence that defendant, along with Richmond and two other men, all rode in a car together and all were dressed in dark clothing. After riding past the Zepeda home that subsequently was broken into, the four men got out of the car together. Richmond was seen placing a gun in his coat pocket. The four men later were seen “messing” with the fence surrounding the house, and immediately thereafter were seen on the front porch of the house. The son of the homeowner testified thathe locked the fence gate and the front door to the home. Both homeowners and their son testified to hearing a loud bang as the front door was being broken into, and Mrs. Zepeda and her son testified that they saw the intruders in possession of guns. Richmond was shot during the course of the burglary, and was later found lying in the front yard of the Zepeda home. Zepeda and his son testified that as the intruders were attempting to escape out of his son's window, Zepeda fired a shot above the last intruder. Defendant and one of the other men returned to the car, at which time defendant reported feeling a bullet barely miss his head. Ms. Alston testified that she saw a burn on the back of defendant's head. Upon returning to the car, defendant also informed Lee and Ms. Alston that Richmond had been shot.
    The trial court, in exercising its “discretionary authority over the presentation of evidence, may admit the statements subject to a later showing of conspiracy.” State v. Fink, 92 N.C. App. 523, 530, 375 S.E.2d 303, 307 (1989) (citing State v. Albert, 312 N.C. 567, 576, 324 S.E.2d 233, 238 (1985)). Thus, while at the time of the admission of Richmond's statement there may not yet have been sufficient evidence to establish a conspiracy, we hold the subsequent testimony by both Ms. Alston, Lee, and the Zepedas was sufficient evidence of a conspiracy. As such, the trial court did not abuse its discretion in admitting Richmond's statements pursuant to the co-conspirator exception to our hearsay rules. In the alternative, if the trial court did err in admitting the testimony surrounding Richmond's statements, the error was harmlessbeyond a reasonable doubt, as there was sufficient evidence presented absent these statements from which the jury could have found that a conspiracy to commit first degree burglary existed, and that defendant committed the offense of first degree burglary. Therefore, defendant's assignment of error is overruled.
    Defendant next contends the trial court erred in failing to submit the lesser included offense of felonious breaking or entering to the jury, in addition to the charge of first degree burglary. Defendant argues there was a conflict in the evidence as to the intent of the felony to be committed during the burglary. Defendant alleges the evidence failed to show that defendant and the other men intended to commit an armed robbery at the time of the breaking and entering, and as such, the trial court should have, sua sponte, submitted the lesser included offenses of first degree burglary to the jury.
    At trial, defendant failed to request an instruction on the lesser included offense of first degree burglary, and he failed to object to the trial court's jury instructions as initially given. Rule 10(b)(2) of our appellate rules provides that “[a] party may not 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 for his objection[.]” N.C. R. App. P. 10(b)(2) (2006). When a question as to the jury instructions in a criminal case was not preserved by objection, our review will be for plain error only. N.C. R. App. P. 10(c)(4) (2006); State v. Tirado, 358N.C. 551, 574, 599 S.E.2d 515, 531 (2004), cert. denied sub nom Queen v. North Carolina, 544 U.S. 909, 161 L. Ed. 2d 285 (2005). Defendant has failed to present any argument alleging that the trial court's failure amounted to plain error, and therefore has waived plain error review of this issue. See State v. Nobles, 350 N.C. 483, 514-15, 515 S.E.2d 885, 904 (1999), vacated and remanded, 357 N.C. 433, 584 S.E.2d 765 (2003)). Defendant's assignment of error is overruled.
    Finally, defendant contends the trial court erred in failing to re-instruct the jury on the elements of attempted armed robbery, after giving additional instructions on the elements of first degree burglary, and in instructing the jury that it need not find that a gun was involved in order to convict defendant of first degree burglary. Defendant argues the reinstruction on the elements of first degree burglary alone gave an undue prominence to the burglary charge.
    North Carolina General Statutes, section 15A-1234 provides that “[a]t any time the judge gives additional instructions, he may also give or repeat other instructions to avoid giving undue prominence to the additional instructions.” N.C. Gen. Stat. § 15A- 1234(b) (2005) (emphasis added). Our Supreme Court has stated that “needless repetition is undesirable and has been held erroneous on occasion.” State v. Dawson, 278 N.C. 351, 365, 180 S.E.2d 140, 149 (1971). In addition, “the trial court is in the best position to determine whether further additional instruction will aid or confuse the jury in its deliberations, or if further instructionwill prevent or cause in itself an undue emphasis being placed on a particular portion of the court's instructions.” State v. Prevette, 317 N.C. 148, 164, 345 S.E.2d 159, 169 (1986). Challenges to the trial court's additional instructions, or failure to re-instruct on an issue, which arise based upon undue prominence, will be reviewed for an abuse of discretion only. Id.
    In the instant case, the jury initially requested “a more defined definition of armed robbery.” When requested to write down their specific question, the jury submitted the following question to the trial court: “Does a gun have to be involved for first degree burglary to convict?” Specifically, the jury had confusion over what “armed” meant in conjunction with the first degree burglary instructions. Defendant requested the trial court to re- instruct the jury that while a gun is not specifically required for the offense of first degree burglary, a gun must be found to have been present to commit an armed robbery. The trial court did not give defendant's requested instruction. After much discussion with counsel over whether or not the jury was requesting clarification on the elements of attempted armed robbery or the sixth element of first degree burglary, the trial court instructed the jury as follows:
        Ms. Foreperson, members of the jury, your question was, does a gun have to be involved for first degree burglary to convict.

        The response of the Court is the answer is, no. Members of the jury, on the sixth element of first degree burglary the issue is whether or not the defendant, along with those for whom he was acting in concert with a common purpose, intended to commit a robbery; thatis, to take and carry away the personal property from that person or his presence without his consent knowing that he, the defendant, or those with whom he was acting in concert, were not entitled to take it intending to deprive that person of its use, that means the property, permanently.

        It is not necessary that the defendant, along with those for whom he was acting in concert, actually use the weapon to complete the robbery.

        For this element of the offense to be proven it is only necessary that the State prove beyond a reasonable doubt that the defendant, or those with whom he was acting in concert, either by himself or along with others, intended to commit an armed robbery at the time of the breaking and entering. The actual use of the firearm is not required under this element of first degree burglary.
Defendant contends, as he did at trial, that the jury's request for clarification went to the issue of whether or not the jury had to find that defendant had a gun during the alleged attempted robbery with a firearm, as this offense served as the underlying felony for the first degree burglary charge.
    In view of the jury's specific request for a clarification of on whether or not a gun had to be involved in order to find that defendant committed a burglary, we hold the trial court did not abuse its discretion in denying defendant's request to re-instruct on attempted robbery with a firearm. A weapon, specifically a gun, is not a required element of the offense of first degree burglary. See State v. Singletary, 344 N.C. 95, 101, 472 S.E.2d 895, 899 (1996); see also N.C. Gen. Stat. § 14-51 (2005). As such, the trial court properly responded to the jury's specific question andinstructed the jury in accord with the law, and defendant's assignment of error is overruled.
    No error.
    Judges GEER and LEVINSON concur.
    Report per Rule 30(e).

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