Appeal by defendant from judgments entered 5 December 2007 by
Judge William Z. Wood, in Guilford County Superior Court. Heard in
the Court of Appeals 11 February 2009.
Attorney General Roy Cooper, by Assistant Attorney General
Kevin L. Anderson, for the State.
Duncan B. McCormick for defendant-appellant.
HUNTER, JR., Robert N., Judge.
John Junior Rush, II (defendant) appeals his convictions of
first-degree murder, attempted first-degree murder, and robbery
with a dangerous weapon. After review, we conclude that defendant
received a trial free of prejudicial error, and remand for the
trial court to arrest judgment on defendant's conviction of robbery
with a dangerous weapon.
I. FACTUAL BACKGROUND
At trial, the State's evidence showed the following: Tam
Nguyen and his thirteen-year-old son, Phi Nguyen, worked at the
McConnell Road Mini Mart (the Mini Mart), a convenience store in
Greensboro owned by the Nguyen family. Because of prior robberies,
Tam Nguyen carried a .45 caliber Colt. The Nguyens kept the doorsof the store locked at night, permitting only regular customers to
On the night of 31 August 2005, defendant and Akheem Sterling
(Sterling) planned to rob the Mini Mart while Tam and Phi Nguyen,
were working. Before the robbery, defendant and Sterling circled
the Mini Mart three to four times, stopped at a nearby store to buy
gloves for the robbery, and sent a woman known as Noodles to
scout out the store. After scouting out the store, Noodles drove
defendant and Sterling to the Mini Mart. When defendant and
Sterling approached the Mini Mart, Sterling knocked on the door.
Phi opened the door and defendant ran past Phi to the register.
After defendant found the register empty, he observed money on the
counter to the left of the cash register and began putting the
money in a plastic bag.
Sterling moved toward the back of the store, where Tam was
located, and pointed his nine-millimeter handgun at Tam, whereupon
Tam and Sterling exchanged gunfire. Sterling shot Tam at least
twice and Sterling was shot once. After being shot, Sterling
returned to the front of the store and shot Phi in the back of his
head, in his chest, and in his back. Defendant and Sterling left
the store with approximately $85.00. Tam survived the robbery, but
shortly after being shot, Phi died. After the robbery, Sterling
told defendant that he thought he killed both Tam and Phi Nguyen.
Subsequently, defendant and Sterling were arrested. On 14
September 2005, defendant, in a statement to the police, admitted
that he and Sterling planned to rob the Mini Mart, and that duringthe course of the robbery, Sterling shot Tam and shot and killed
On 3 January 2006, a grand jury indicted defendant on charges
of first-degree murder, attempted first-degree murder, and robbery
with a dangerous weapon. Defendant pled not guilty and was tried
before a jury on 3-5 December 2007. Defendant's motions to dismiss
all charges were denied. The jury convicted defendant of first-
degree murder on the basis of the felony murder rule, attempted
first-degree murder on the basis of premeditation and deliberation,
and robbery with a dangerous weapon. Defendant was sentenced to
life imprisonment for the first-degree murder of Phi Nguyen, 157 to
197 months' imprisonment for the attempted first-degree murder of
Tam Nguyen and 64 to 86 months' imprisonment for robbery with a
dangerous weapon. The sentences for attempted first-degree murder
and robbery with a dangerous weapon run concurrently with
defendant's life sentence for first-degree murder. Defendant gave
notice of appeal in open court.
On appeal, defendant contends that the trial court erred by
(1) failing to intervene ex mero motu
during the prosecutor's
closing argument, (2) denying defendant's motion to dismiss the
charge of attempted first-degree murder, and (3) failing to arrest
judgment on defendant's robbery with a dangerous weapon charge.
II. FAILURE TO INTERVENE EX MERO MOTU
Defendant contends that the trial court erred by failing to
intervene ex mero motu
during the prosecutor's closing remarks.
After reviewing the prosecutor's statements, we conclude that theremarks were not grossly improper, and therefore, do not rise to
the level of prejudice that would warrant a new trial.
Because defendant failed to object to the prosecutor's remarks
at trial, our review is limited to 'whether the remarks were so
grossly improper that the trial court committed reversible error by
failing to intervene ex mero motu
.' State v. Taylor
, 362 N.C.
514, 545, 669 S.E.2d 239, 265 (2008) (quoting State v. McNeill
N.C. 231, 244, 624 S.E.2d 329, 338, cert. denied
, 549 U.S. 960, 166
L. Ed. 2d 281 (2006)). Pursuant to this standard, 'only an
extreme impropriety on the part of the prosecutor will compel [the]
Court to hold that the trial judge abused his discretion in not
recognizing and correcting ex mero motu
an argument that defense
counsel apparently did not believe was prejudicial when originally
. (citations omitted).
In the present case, the prosecutor made the following closing
argument to the jury:
You know who committed this crime. You know
how it was committed. Your difficulty is
going to be in applying the law. And I say
your difficulty. I hope you don't have any
difficulty, but I anticipate you will, because
you know that when you find this man guilty,
he goes to prison for the rest of his life.
Mercy? The State is not asking you to
execute this man. They're not seeking the
death penalty. That's a lot more mercy than
was shown this 13 year old. A lot more mercy.
We're asking you to find him guilty and let
him spend the rest of his life in prison, so
another 13 year old boy isn't innocently
Defendant contends that the prosecutor's remarks were grossly
improper because the statements suggested that convicting defendant
would have a general deterrent effect on the conduct of others.
During closing remarks, the prosecution may not argue that
convicting the defendant will have a general deterrent effect;
however, the prosecution may argue specific deterrence, that is,
the effect of conviction on the defendant himself. State v.
, 338 N.C. 315, 339, 451 S.E.2d 131, 143 (1994). The
prosecutor's closing remarks asked the jury to find [defendant]
guilty and let him spend the rest of his life in prison, so
another 13 year old boy isn't innocently gunned down. The purpose
of the prosecutor's argument was to convince the jury to convict
defendant to specifically deter defendant's unlawful behavior. As
such, we conclude that the prosecutor's statements were not grossly
that the prosecutor's argument was grossly
improper, given the amount of evidence against defendant, it could
not have been prejudicial. During trial, the State presented
overwhelming evidence of defendant's guilt, including defendant's
admissions to the police that he and Sterling planned and executed
the robbery and that Sterling shot both Tam and Phi Nguyen.
Moreover, this evidence was uncontested by defendant at trial and
on appeal. Based on this evidence, the prosecutor's statements
were not prejudicial, because it was unlikely that his statements
impacted the jury's verdict. We conclude that the prosecutor's remarks were not so grossly
improper as to require ex mero motu
action by the trial court.
Moreover, even if the remarks were improper, they were not
prejudicial because the record provides sufficient support for
defendant's convictions. Accordingly, we hold that the trial court
did not err by failing to intervene ex mero motu
prosecutor's closing remarks.
III. MOTION TO DISMISS
Defendant argues that the trial court erred in denying his
motion to dismiss the charge of attempted first-degree murder on
the grounds that there was insufficient evidence to prove the
elements of premeditation and deliberation. We disagree.
When considering a motion to dismiss, based on insufficiency
of evidence, the standard of review is whether the State has
offered substantial evidence to show the defendant committed each
element required to be convicted of the crime charged. State v.
, ___ N.C. App. ___, ___, 659 S.E.2d 73, 77, disc. review
denied, appeal dismissed
, ___ N.C. ___, 668 S.E.2d 564 (2008),
, 2009 U.S. LEXIS 1704. 'Substantial evidence is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.' State v. Edwards
, 174 N.C.
App. 490, 496, 621 S.E.2d 333, 338 (2005) (citations omitted). In
making a determination, the court must view the evidence admitted
in the light most favorable to the State, giving the State the
benefit of every reasonable inference and resolving any
contradictions in its favor. State v. Rose
, 339 N.C. 172, 192, 451S.E.2d 211, 223 (1994), cert. denied
, 515 U.S. 1135, 132 L. Ed. 2d
818 (1995). 'The motion to dismiss should be denied if there is
substantial evidence supporting a finding that the offense charged
was committed.' State v. Poag
, 159 N.C. App. 312, 318, 583 S.E.2d
661, 666 (citations omitted), appeal dismissed, disc. review
, 357 N.C. 661, 590 S.E.2d 857 (2003).
A person commits the crime of attempted first degree murder
if he: ' specifically intends to kill another person unlawfully;
 he does an overt act calculated to carry out that intent, going
beyond mere preparation;  he acts with malice, premeditation,
and deliberation; and  he falls short of committing the
, ___ N.C. App. at ___, 659 S.E.2d at 77-78
(quoting State v. Cozart
, 131 N.C. App. 199, 202-03, 505 S.E.2d
906, 909 (1998), disc. review denied
, 350 N.C. 311, 534 S.E.2d 600
(1999)), appeal dismissed, cert. denied
, ___ N.C. ___, 651 S.E.2d
225 (2007). A person acts with premeditation when 'the act was
thought out beforehand for some length of time, however short, but
no particular amount of time is necessary for the mental process of
premeditation.' State v. Jones
, 342 N.C. 628, 630, 467 S.E.3d
233, 234 (1996) (citation omitted). Deliberation is defined as an
intent to kill, carried out in a cool state of blood, in
furtherance of a fixed design for revenge or to accomplish an
unlawful purpose[.] State v. Conner
, 335 N.C. 618, 635, 440
S.E.2d 826, 836 (1994). In determining whether there is evidence
of premeditation and deliberation, our Court should consider the
following factors: (1) lack of provocation by the intended victimor victims; (2) conduct and statements of the defendant both before
and after the attempted killing; (3) threats made against the
victim or victims by the defendant; and (4) ill will or previous
difficulty between the defendant and the intended victim or
, 131 N.C. App. at 202, 505 S.E.2d at 909.
To be convicted of a crime under the theory of acting in
concert, the defendant need not do any particular act constituting
some part of the crime. State v. Moore
, 87 N.C. App. 156, 159, 360
S.E.2d 293, 295 (1987), disc. review denied,
321 N.C. 477, 364
S.E.2d 664 (1988).
All that is necessary is that the defendant be
present at the scene of the crime and that he . . . act
together with another who does the acts necessary to constitute the
crime pursuant to a common plan or purpose to commit the crime.
at 159, 360 S.E.2d at 295-96.
In the present case, the victim was shot while defendant and
a confederate co-conspirator, were robbing the Mini Mart. Pursuant
to the law of acting in concert
, '[i]f two or more persons join in
a purpose to commit robbery with a firearm, each of them, if
actually or constructively present, is not only guilty of that
crime if the other commits the crime, but he is also guilty of any
other crime committed by the other in pursuance of the common
purpose to commit robbery with a firearm, or as a natural or
probable consequence thereof.' Poag
, 159 N.C. App. at 320, 583
S.E.2d at 667 (citation omitted).
Pursuant to the acting in concert doctrine, there was
sufficient evidence presented at trial to find that defendant actedwith premeditation and deliberation. The evidence in the record
shows that defendant and Sterling planned the robbery of the Mini
Mart. Prior to the robbery, defendant and Sterling circled the
Mini Mart, sent Noodles inside to scout out the place, and
purchased gloves to use. Furthermore, Sterling armed himself with
a nine-millimeter handgun, and shot Tam Nguyen at least twice
during the course of the robbery. This was sufficient evidence to
show premeditation and deliberation. See State v. Welch
, 316 N.C.
578, 590, 342 S.E.2d 789, 796 (1986) (holding that there was
sufficient evidence of premeditation and deliberation when the
defendant previously planned to commit the robbery, armed himself
with a shotgun, and shot the victim during the robbery), cert.
, 1998 N.C. LEXIS 515; State v. Allen
, 162 N.C. App. 587,
592, 592 S.E.2d 31, 36 (finding that there was sufficient evidence
of premeditation and deliberation when the defendant armed himself
with a rifle as part of a plan to rob someone at an apartment, and
only a brief period of time passed between the time he entered the
apartment and shot the victim), appeal dismissed
, 358 N.C. 546, 599
S.E.2d 557 (2004).
We hold that the trial court did not err in failing to dismiss
defendant's charge of attempted first-degree murder because
defendant acted in concert with Sterling to commit the robbery,
wherein Sterling shot Tam Nguyen with premeditation and
deliberation. We overrule the assignment of error.
IV. FAILURE TO ARREST ROBBERY CONVICTION
Defendant contends that the trial court erred in failing to
arrest judgment on the robbery with a dangerous weapon judgment and
asks this Court to remand for resentencing. The State concedes
that the sentence for the underlying robbery with a dangerous
weapon conviction should have been arrested pursuant to the felony
murder merger doctrine. We agree.
The felony murder merger doctrine provides that [w]hen a
defendant is convicted of felony murder only, the underlying felony
constitutes an element of first-degree murder and merges into the
murder conviction. State v. Millsaps
, 356 N.C. 556, 560, 572
S.E.2d 767, 770 (2002). [W]hen the sole theory of first-degree
murder is the felony murder rule, a defendant cannot be sentenced
on the underlying felony in addition to the sentence for
first-degree murder[.] State v. Wilson
, 345 N.C. 119, 122, 478
S.E.2d 507, 510 (1996) (quoting State v. Small
, 293 N.C. 646, 660,
239 S.E.2d 429, 438-39 (1977)); compare State v. Lewis
, 321 N.C.
42, 50, 361 S.E.2d 728, 733 (1987) (stating that if a defendant's
conviction of first-degree murder is based on both the felony
murder rule and premeditation and deliberation, a defendant may be
sentenced for both first-degree murder and the underlying felony).
In the present case, defendant's first-degree murder conviction was
based on the felony murder rule, with the underlying felony of
robbery with a dangerous weapon. In accordance with the felony
murder merger doctrine,
defendant's robbery with a dangerous weapon
conviction merges with his first-degree murder conviction.
The trial court erred in failing to arrest judgment on robberywith a dangerous weapon as 'the underlying felony must be arrested
under the merger rule.' State v. Young
, 186 N.C. App. 343, 353,
651 S.E.2d 576, 583 (2007) (citations omitted), appeal dismissed
362 N.C. 372, 662 S.E.2d 394 (2008). The legal effect of arresting
the judgment is to vacate the verdict and sentence of
imprisonment[.] State v. Marshall
, __ N.C. App. __, __, 656
S.E.2d 709, 715 (quoting State v. Fowler
, 266 N.C. 528, 531, 146
S.E.2d 418, 420 (1966)), disc. review denied
, 362 N.C. 368, 661
S.E.2d 890 (2008). Accordingly, we remand this case for the trial
court to arrest judgment on the underlying felony of robbery with
a dangerous weapon.
Defendant received a fair trial, free of prejudicial error.
For the reasons stated herein, we hold that the trial court did not
err in failing to intervene ex mero motu
during the prosecutor's
closing remarks. Moreover, the trial court properly denied
defendant's motion to dismiss the charge of attempted first-degree
murder. We remand to the trial court with instructions to arrest
judgment on the robbery with a dangerous weapon conviction.
No error in part; remanded in part.
Judges McGEE and JACKSON concur.
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