STATE OF NORTH CAROLINA
Guilford County
v. No. 04 CRS 83182
DARIS LAMONT SPINKS
Attorney General Roy Cooper, by Assistant Attorney General
LaShawn L. Strange, for the State.
Irving Joyner, for defendant-appellant.
LEVINSON, Judge.
Daris Lamont Spinks (defendant) was found guilty by a jury of
robbery with a dangerous weapon and conspiracy to commit robbery
with a dangerous weapon. The trial court consolidated his offenses
for judgment and imposed an active prison sentence of 61 to 83
months. By order entered 12 January 2006, we allowed defendant's
petition for writ of certiorari for the purpose of reviewing the
judgment.
The State's evidence tended to show the following: Two men
robbed a Bojangles' restaurant on High Point Road in Greensboro,
North Carolina on the afternoon of 9 June 2004. The restaurant's
manager, Douglas Hobgood, testified that he was standing behind thefront counter when two young men wearing “masks, a do-rag, or a
stocking cap” came into the restaurant. One of the men brandished
a handgun at an employee, Tyrone Morris, who was standing across
the counter from Hobgood. The second man jumped the counter and
ordered Hobgood to open the cash registers at the front counter and
drive-through window. After taking approximately $300 from the two
registers, the two men ran out of the restaurant.
Morris testified that he had completed his work shift and was
purchasing his employee meal at the time of the robbery on 9 June
2004. While waiting for his meal, he looked outside and saw “two
short guys in all black walking down the sidewalk toward
Bojangles'.” Morris recognized one of the men as defendant, with
whom he had attended Allen Middle School from 1995 to 1998. As the
two men reached the front entrance, Morris took “like two glances
at [defendant] and made sure it was him.” He then saw defendant
“putting his do-rag over his face” and realized that the men “were
about to rob the store.” Once inside the store, defendant jumped
over the counter and told Hobgood to open the registers while his
associate held a gun on Morris. Morris described the gun as small,
“rusty looking” and “sort of like a .22.” After the robbery, the
two men ran from the restaurant. Morris identified defendant to
police as one of the robbers. He selected defendant's photograph
from a lineup and identified him in court for the jury.
Greensboro Police Detective Charles Isom testified that he
interviewed defendant on 17 June 2004, after Morris identified him
in the photographic lineup. After initially denying involvement inthe robbery, defendant told Isom that two friends named “Zeek” and
“Young'un” proposed “doing a lick at Bojangles'” while the three
men were driving in Zeek's brother's car. Young'un “said he had it
all mapped out” and would arrive at the restaurant after the
lunchtime rush, when “it was just going to be the employees in
there.” Defendant told Isom that “they planned it out on the
way[,]” and gave the following verbal account of the theft:
[Defendant] said, “I was going to go in with
'Young'un.' I was just going to stand there
and watch out, because 'Zeek' knew that . . .
I [had] never done it before. 'Young'un' was
the stick-up one.”
[Defendant] said, “. . . I pulled a black do-
rag down over my face. [']Young'un['] walked
in first. I walked in behind. He said, 'Yo.
This ain't no game.' He jumped over the
counter. I told the other employees don't
move; don't do nothing stupid. I had my hand
up under my shirt like I had something. . . .
The manager opened the register.
[']Young'un['] grabbed the cash. . . . [T]hey
moved over to the cash _ the drive thru. . .
. [H]e jumped back over the counter. We ran
down the sidewalk . . . .[”]
Defendant also signed a written statement describing his
participation in the incident as follows:
. . . “Zeek” and “Young'un” came and picked me
up at about 1:25 to 1:30 . . . . In the car,
“Young'un” was telling me about this job where
we could make some money, . . . [b]ut I said,
you know, . . . [j]ust take me home.
Got home. My grandmother was getting on my
case about not having a job . . . . So I
called “Zeek” and told him yo, I am down.
Let's do it. He came and got me about 2:50 to
3 o'clock. . . . “Young'un” was telling me
yeah, I got a home-boy that work in Bojangles'
. . . .
. . . “Young'un” walked in first, I was
behind, I pulled my mask down, told the people
it's not a game, get down, don't move.
“Young'un” jumped over the _ the thing and
told the boss man to open the drawer. He took
the money and said let's go . . . . So then
we was gone, running down the sidewalk; then
we crossed the street, and went my own way . .
. .
Isom later identified “Zeek” as defendant's neighbor, Ezekiel Bart
Lenoir.
Defendant testified that he was not involved in the Bojangles'
robbery and knew nothing about it. On the afternoon of 9 June
2004, he asked Zeek for a ride from his grandmother's house to his
3:30 p.m. appointment with his probation officer. Zeek picked
defendant up just before 3:00 p.m. After stopping to see Zeek's
brother at his workplace, they drove directly to the probation
office in downtown Greensboro. Defendant signed in at the
probation office at 3:30 p.m., and introduced a copy of the sign-in
sheet into evidence at trial.
Defendant told the jury that he did not go to the Bojangles'
on High Point Road or see “Young'un” at any time on 9 June 2004.
When asked about his incriminating statement to Isom, he explained
that “it was very frightening” to be alone in an interrogation room
with a detective accusing him of robbery. Isom told defendant
during the interview that he would “talk to the D.A.” if defendant
cooperated. Because defendant was scared and “just wanted to go
home[,]” he decided to “[t]ell the man what he want[ed] to hear.”
On appeal, defendant first claims that the trial court
committed plain error in failing to instruct the jury on common lawrobbery as a lesser-included offense of robbery with a dangerous
weapon. A defendant is entitled to a lesser-included offense
instruction if the record contains affirmative evidence that would
allow a reasonable juror to find beyond a reasonable doubt that he
committed the lesser offense, rather than the charged offense.
State v. Kyle, 333 N.C. 687, 703, 430 S.E.2d 412, 421 (1993); State
v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981).
Accordingly, where "the State presents evidence of every element of
the offense, and there is no evidence to negate these elements
other than the defendant's denial that he committed the offense,
then no lesser-included offense need be submitted.” State v.
Mangum, 158 N.C. App. 187, 197, 580 S.E.2d 750, 757 (2003).
Moreover, the possibility that the jury might disbelieve some
portion of the State's proffer is insufficient to warrant an
instruction on a lesser-included offense. State v. Franks, 74 N.C.
App. 661, 662, 329 S.E.2d 717, 718 (1985).
Common law robbery is a lesser-included offense of robbery
with a dangerous weapon. State v. Frazier, 150 N.C. App. 416, 419,
562 S.E.2d 910, 913 (2002). Both offenses entail the use of
violence or the threat of violence to effect a taking of property
from the person or presence of another. See Id.; State v. White,
142 N.C. App. 201, 204, 542 S.E.2d 265, 267 (2001). The
distinction between the lesser and greater offenses is “that common
law robbery involves the use of violence or fear generally, and
robbery with a dangerous weapon involves the use of a dangerous
weapon to create this violence or fear.” State v. Bartley, 156N.C. App. 490, 498, 577 S.E.2d 319, 324 (2003) (citations omitted).
Accordingly, “the trial judge is not required to instruct on common
law robbery when the defendant is indicted for armed robbery if the
uncontradicted evidence indicates that the robbery was perpetrated
by the use or threatened use of what appeared to be a dangerous
weapon.” State v. Porter, 303 N.C. 680, 686-87, 281 S.E.2d 377,
382 (1981). A handgun is a deadly weapon as a matter of law.
State v. Reives, 29 N.C. App. 11, 12, 222 S.E.2d 727, 728 (1976).
Defendant concedes that he did not request jury instructions
on the lesser-included offenses of common law robbery and
conspiracy to commit common law robbery; nor did he object to the
jury instructions as given. Accordingly, we review the lack of
lesser-included offense instructions only for plain error. See
N.C.R. App. P. 10(c)(4). To find plain error in this context, “the
appellate court must be convinced that absent the error the jury
probably would have reached a different verdict. In other words,
the appellate court must determine that the error in question
'tilted the scales' and caused the jury to reach its verdict
convicting the defendant.” State v. Walker, 316 N.C. 33, 39, 340
S.E.2d 80, 83 (1986) (citations omitted).
We find no plain error here. The State's eyewitnesses agreed
that one of the two perpetrators brandished a handgun to accomplish
the robbery. Morris described the gun's appearance and specified
that defendant's accomplice held the gun while defendant jumped
over the counter and took the money from the registers. By joining
with another person to commit this criminal act, defendant wasresponsible for his accomplice's use of the handgun in furtherance
thereof. See generally State v. Erlewine, 328 N.C. 626, 637, 403
S.E.2d 280, 286 (1991). In his out-of-court statement to Isom,
defendant confirmed a weapon was used, stating “Young'un was the
stick-up one.” No evidence supported a finding that defendant
acted independently from the gunman in taking the money from the
cash registers, inasmuch as they entered and left the restaurant
together. And in his own testimony, defendant did not offer an
opposing account of a robbery committed without the use of the
handgun. Rather, he claimed he was not involved in the incident.
His testimony thus did not support an instruction on common law
robbery.
Assuming, arguendo, that defendant's out-of-court statements
supported an instruction on common law robbery, we hold the want of
this instruction did not have a probable effect on the jury's
verdict, so as to amount to plain error under Rule 10(c). In
applying the plain error standard, our high courts have emphasized
that it is “'the rare case in which an improper instruction will
justify reversal of a criminal conviction when no objection has
been made in the trial court.'” State v. Odom, 307 N.C. 655, 661,
300 S.E.2d 375, 378 (1983) (quoting Henderson v. Kibbe, 431 U.S.
145, 154, 52 L. Ed. 2d 203, 212 (1977)). Here, both eyewitnesses
saw the robber display a handgun. Morris provided a description of
the gun. Defendant told the jury that he did not participate in
the crime and did not go to the Bojangles' or see “Young'un” on theday in question - testimony the jury clearly rejected. This
assignment of error is overruled.
Defendant also assigns plain error to the court's failure to
instruct the jury on conspiracy to commit common law robbery as a
lesser-included offense of conspiracy to commit robbery with a
dangerous weapon. He contends that the only direct evidence of a
conspiracy was his statement to Isom, which acknowledged “an
agreement to rob the Bonangle[']s, but did not show [an agreement]
to use a dangerous weapon to commit that offense.” Because the
evidence supported an instruction on common law robbery, defendant
asserts the jury could have found a conspiracy to commit this
lesser offense.
As discussed above, in order to show plain error based on the
“failure to instruct the jury on the offense of conspiracy to
commit common law robbery . . ., defendant must [show] not only
that there was error, but that absent the error, the jury probably
would have reached a different result.” State v. Carter, 177 N.C.
App. 539, 543, 629 S.E.2d 332, 336, aff'd per curiam, 361 N.C. 108,
637 S.E.2d 537 (2006).
“'To constitute a conspiracy it is not necessary that the
parties should have come together and agreed in express terms to
unite for a common object: A mutual, implied understanding is
sufficient[.]'” State v. Johnson, 164 N.C. App. 1, 17, 595 S.E.2d
176, 185 (2004) (quoting State v. Bindyke, 288 N.C. 608, 615-16,
220 S.E.2d 521, 526 (1975)). Moreover, a person is guilty of
conspiracy if he “'commits an overt act with knowledge of theconspiracy. . . [or] tacitly consents to the object of a conspiracy
and goes along with the other conspirators[.]'” Id. at 18, 595
S.E.2d at 186 (quoting State v. Carey, 285 N.C. 497, 502-03, 206
S.E.2d 213, 218 (1974)).
We find no affirmative evidence of an agreement limited in
scope to the taking of money from Bojangles' by violence or a
threat of violence but without the use of a dangerous weapon. The
State's eyewitnesses depicted defendant as stealing the money from
the cash registers while his accomplice threatened Morris with a
handgun. In his testimony, defendant presented an alibi and
claimed he had no involvement whatsoever in the incident. The
conflict created by these competing accounts does not support a
finding of conspiracy to commit common law robbery. Compare
Johnson, 164 N.C. App. at 17, 595 S.E.2d at 185 (finding no
evidence of a conspiracy to commit common law robbery where
defendant either brandished a gun during the robbery or was not
present), with Carter, 177 N.C. App. at 543, 629 S.E.2d at 336
(requiring instruction on conspiracy to commit common law robbery
where the “conflicting evidence regarding whether the gun used was
real or fake” created a jury question on the “agreement between
[the co-conspirators] . . . as to whether or not the gun Oakley was
to use was in fact real”).
Defendant's statements to Isom did not tend to show a
conspiracy to commit only common law robbery, rather than robbery
with a dangerous weapon. According to Isom, defendant described
the planning of the robbery as follows: . . . [Defendant] said, “I was going to go in
with 'Young'un'. I was just going to stand
there and watch out, because 'Zeek' knew that
I never knew how to do it before. That I
never done it before. 'Young'un' was the
stick-up one.”
(emphasis added). Defendant's written statement referred only
generally to Young'un's proposal of a “job where we could make some
money.” As noted above, we do not believe that defendant's
accounts of the actual theft supported a verdict of common law
robbery. See Bartley, 156 N.C. App. at 498-99, 577 S.E.2d at 324.
Nor did they affirmatively contradict the State's evidence that
Young'un brandished a handgun at Morris.
As discussed above, even assuming error by the court in
failing to instruct the jury on the lesser-included conspiracy, we
find no realistic likelihood that the error had an impact on the
verdict returned in this case. Accordingly, because defendant has
not shown plain error under Rule 10(c)(4), we overrule this
assignment of error.
The record on appeal includes additional assignments of error
which are not addressed in defendant's brief to this Court. By
Rule, we deem them abandoned. N.C.R. App. P. 28(b)(6).
No error.
Judges MCCULLOUGH and STEELMAN concur.
Report per Rule 30(e).
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