STATE OF NORTH CAROLINA
v. Harnett County
No. 05 CRS 57099
EMMANUEL EDWARD SANDERS, JR.
Attorney General Roy Cooper, by Special Deputy Attorney
General R. Marcus Lodge, for the State.
Irving Joyner, for defendant-appellant.
MARTIN, Chief Judge.
Defendant, Emmanuel Edward Sanders, Jr. (“defendant”), was
found guilty by a jury of robbery with a dangerous weapon. He
appeals from a judgment entered upon the verdict sentencing
defendant to a prison term of 77 to 102 months.
The State's evidence at trial tended to show the following:
On the evening of 21 October 2005, defendant went to the residence
of Demetrius McLaughlin (“McLaughlin”) on Catfish Lane in the
Spring Lake area of Harnett County to purchase marijuana.
Defendant arrived at the residence in a burgundy and white pickup
truck driven by Martin Gilliam. McLaughlin testified he had knowndefendant for approximately one year and defendant had regularly
purchased marijuana from him two or three times per week.
After defendant and McLaughlin completed their transaction,
somebody knocked on McLaughlin's door. McLaughlin opened the door,
and a man identified as Ashley Gilliam rushed into McLaughlin's
residence and pulled a gun on McLaughlin. Defendant also pulled a
gun on McLaughlin. McLaughlin then grabbed both of the guns and
began wrestling with the two men. After approximately thirty
seconds, Martin Gilliam entered the residence, began hitting
McLaughlin on the back of his head with a gun, and forced
McLaughlin to the ground. McLaughlin testified he had a lot of
blood in his eyes and he eventually gave up. At that time,
defendant and Ashley Gilliam began searching and ransacking
McLaughlin's house while Martin Gilliam held McLaughlin down on the
floor with his knee in McLaughlin's back and a gun to McLaughlin's
head. After a period of time, Martin Gilliam tied McLaughlin's
hands behind his back with a belt and joined defendant and Ashley
Gilliam in searching and ransacking the house.
When Martin Gilliam left the room, McLaughlin got up, jumped
through the front window of his trailer to escape, landed on the
ground, and began to run. As he ran, McLaughlin was shot several
times in the chest and once in the arm. He continued to run around
the corner of his trailer, went to his neighbor's trailer, and
asked his neighbor to call 911. McLaughlin then laid on the ground
in front of his neighbor's trailer until emergency personnel
arrived. McLaughlin was taken by ambulance to Cape Fear Valley Hospital
where he underwent surgery. McLaughlin remained in the hospital
for twelve days. After he was released from the hospital,
McLaughlin received additional medical treatment to assist him in
getting the strength back in his arm and hand because he initially
did not have any feeling in his arm or hand. McLaughlin was out of
work for approximately two months while he was recovering from his
injuries.
At trial, McLaughlin testified that while defendant was in his
home with Ashley and Martin Gilliam, defendant said, “give me your
money. Give me your marijuana. We going to kill you.” When asked
whether they (referring to defendant, Ashley Gilliam, and Martin
Gilliam) took anything from him, McLaughlin testified they took
money, a necklace, and a quarter bag of marijuana having a value of
$25.00 that was in his kitchen.
Harnett County Deputy Sheriff Chris Hayes testified he was
dispatched to Catfish Lane on the evening of 21 October 2005. He
did not make it to Catfish Lane, however, because his vehicle got
stuck in the mud as he was driving up Valley Road, a clay road,
toward Catfish Lane. Deputy Sheriff Hayes testified it was raining
that evening making it difficult to drive on Valley Road. While on
Valley Road, he observed a pickup truck in a ditch on the side of
the road. After ensuring nobody was in the pickup truck, Deputy
Sheriff Hayes searched it and found a semi-automatic handgun laying
on the floorboard. Richard Foley, a detective crime scene investigator with the
Harnett County Sheriff's Department, testified he received a
request to go to Catfish Lane on the evening of 21 October 2005.
Because he had a four-wheel drive vehicle, he was able to make it
there despite the rain and the muddy road. When he pulled up, he
observed paramedics working on McLaughlin. Detective Foley saw
bullet holes in McLaughlin's chest area and took photographs of his
injuries. Detective Foley further testified he took photographs of
the pickup truck that was in the ditch on the side of Valley Road
as well as the weapon that was on the floorboard of the truck. He
then disarmed the weapon and collected it as evidence.
Jerry Murphy, a detective with the Harnett County Sheriff's
Department, testified he was dispatched to Catfish Lane on the
evening of 21 October 2005. When he arrived, McLaughlin had
already been taken away by emergency personnel. On 1 November
2005, Detective Murphy interviewed McLaughlin at the hospital about
the events that occurred on the evening of 21 October 2005.
McLaughlin informed Detective Murphy the man who purchased
marijuana from him that evening was known as “Man” and the other
two black males who subsequently entered his residence were Martin
and Ashley. On 2 November 2005, Detective Murphy returned to the
hospital at which time McLaughlin identified Ashley Gilliam and
Martin Gilliam in photographic lineups. On 3 November 2005,
Detective Murphy met with McLaughlin at the home of McLaughlin's
mother and presented McLaughlin with a photographic lineup of a
third suspect. McLaughlin identified defendant as the man whom heknew as “Man.” Finally, Detective Murphy testified the pickup
truck that was in the ditch on Valley Road on the evening of 21
October 2005 was registered to Martin Gilliam.
Defendant presents two arguments on appeal. First,
defendant
argues the trial court committed plain error in entering judgment
against him when insufficient evidence existed to support his
conviction for
robbery with a dangerous weapon.
Second, defendant
argues the trial court erred by instructing the jury on acting in
concert. For the reasons set out below, we find no error.
Defendant first contends the trial court committed plain error
in entering judgment against him on the ground there was
insufficient evidence to support his conviction for
robbery with a
dangerous weapon.
Rule 10(b)(3) of the North Carolina Rules of
Appellate Procedure mandates that a defendant must move to dismiss
a criminal charge in the trial court in order to preserve the issue
of the sufficiency of the evidence for appellate review. N.C.R.
App. P. 10(b)(3) (2006)(“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.”). In the present case, defendant did not move to dismiss
the charge at the close of the State's evidence or at the close of
all the evidence. Accordingly, this assignment of error is
dismissed.
See State v. Spaugh, 321 N.C. 550, 552, 364 S.E.2d 368,
370 (1988)(dismissing assignment of error challenging sufficiency
of the evidence where the defendant failed to move to dismiss at
the close of all the evidence). Defendant next contends the trial court erred by overruling
his objection to submitting an instruction on acting in concert to
the jury. In support of this contention, defendant makes two
arguments. First, he argues the trial court erred by instructing
the jury on acting in concert because the indictment does not
allege defendant was acting in concert during the commission of the
offense. We disagree.
A criminal indictment “is sufficient in form for all intents
and purposes if it express[es] the charge against the defendant in
a plain, intelligible, and explicit manner[.]” N.C. Gen. Stat. §
15-153 (2005). Our Supreme Court has stated:
Specifically, the indictment must allege all
of the essential elements of the crime sought
to be charged. Allegations beyond the
essential elements of the crime sought to be
charged are irrelevant and may be treated as
surplusage.
State v. Westbrooks, 345 N.C. 43, 57, 478 S.E.2d 483, 492 (1996)
(citations and quotations omitted).
Here, the indictment charged defendant with robbery with a
dangerous weapon. The essential elements of robbery with a
dangerous weapon are: “(1) an unlawful taking or an attempt to take
personal property from the person or in the presence of another,
(2) by use or threatened use of a firearm or other dangerous
weapon, (3) whereby the life of a person is endangered or
threatened.” State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518
(1998) (citing N.C. Gen. Stat. § 14-87 (1994)). Acting in concert
is not an essential element of robbery with a dangerous weapon and,
thus, would have been surplusage if included in the indictment.
See State v. Westbrooks, 345 N.C. at 57, 478 S.E.2d at 492
(holding
the allegation in the indictment that defendant acted in concert
with two other persons was an allegation beyond the essential
elements of the crime charged and was, therefore, surplusage).
Accordingly, defendant's argument is without merit.
Second, defendant argues there was no factual basis for
instructing the jury on acting in concert. In particular,
defendant asserts the State failed to present any evidence of the
identity of the individual who stole McLaughlin's marijuana.
Absent such evidence, defendant asserts it was improper to instruct
the jury on acting in concert.
In North Carolina, one may be convicted of a crime under the
“acting in concert” principle if “he is present at the scene of the
crime and . . . 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.” State v. Joyner, 297 N.C. 349, 357,
255 S.E.2d 390, 395 (1979). “To support an instruction on acting
in concert, the State must present sufficient evidence that two or
more persons acted together with a common plan or purpose to commit
a crime.” State v. Moxley, 78 N.C. App. 551, 555, 338 S.E.2d 122,
124 (1985) (citation omitted), disc. review denied, 316 N.C. 384,
342 S.E.2d 904 (1986).
Here, the State presented evidence that tended to show
defendant arrived at McLaughlin's residence in a pickup truck
driven by Martin Gilliam. After defendant purchased marijuana from
McLaughlin, Ashley Gilliam entered McLaughlin's residence andpulled a gun on him. Defendant also pulled a gun on defendant at
which time McLaughlin wrestled with the two men. Shortly
thereafter, Martin Gilliam entered the residence, began hitting
McLaughlin on the back of his head with a gun, and forced
McLaughlin to the ground. Defendant and Ashley Gilliam were
searching and ransacking McLaughlin's house while Martin Gilliam
held McLaughlin down on the floor with his knee in McLaughlin's
back and a gun to McLaughlin's head. McLaughlin testified that
while defendant was in his home with Ashley and Martin Gilliam,
defendant said, “give me your money. Give me your marijuana. We
going to kill you.”
McLaughlin further testified they took money,
a necklace, and marijuana having a value of $25.00 from him.
Based
on these facts, we conclude the State presented substantial
evidence that defendant, Ashley Gilliam, and Martin Gilliam acted
together with a common plan or purpose to rob McLaughlin with a
deadly weapon.
No error.
Judges McGEE and HUNTER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***