State v. Graves ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1174
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
STATE OF NORTH CAROLINA
v. Wake County
Nos. 10 CRS 222323-24
ATOM CHRISTOPHER GRAVES 12 CRS 5928-29
Appeal by defendant from judgments entered 24 April 2013 by
Judge G. Wayne Abernathy in Wake County Superior Court. Heard
in the Court of Appeals 26 May 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General R. Marcus Lodge, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Emily H. Davis, for defendant-appellant.
HUNTER, Robert C., Judge.
On 24 April 2013, a jury found defendant Atom Christopher
Graves guilty of robbery with a dangerous weapon, conspiracy to
commit robbery with a dangerous weapon, two counts of attempt to
obtain property by false pretenses, and possession of a firearm
by a felon. Defendant appeals.
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Counsel appointed to represent defendant on appeal has been
unable to identify any issue with sufficient merit to support a
meaningful argument for relief on appeal and asks that this
Court conduct its own review of the record for possible
prejudicial error. Counsel has shown to the satisfaction of
this Court that she has complied with the requirements of Anders
v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967), and State
v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), by advising
defendant of his right to file written arguments with this Court
and providing him with the documents necessary for him to do so.
On 16 May 2014, defendant filed a pro se brief in which he
presents four arguments. First, defendant argues that the trial
court erred by overruling his objection to joinder and denying
his motion to sever the possession of a firearm by a convicted
felon charge. Defendant contends that the joinder of the
robbery and possession of a firearm by a felon charges denied
him a fair trial, because it required him to choose whether to
testify that the firearm was inoperable, thereby admitting to
the possession of a firearm by a felon charge, or to refuse to
testify, thereby limiting his ability to present a defense to
the robbery charge. We do not agree.
The decision of whether to permit joinder of charges
pursuant to N.C. Gen. Stat. § 15A-926 (2013) is left to the
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trial court’s discretion. State v. Perry, 142 N.C. App. 177,
181, 541 S.E.2d 746, 749 (2001). Contrary to defendant’s
argument, we have previously held that a trial court acted
within its discretion when it permitted joinder of offenses
under similar circumstances, where, as in this case, the charges
arose from the same transaction. See State v. Cromartie, 177
N.C. App. 73, 78, 627 S.E.2d 677, 681, disc. review denied, 360
N.C. 539, 634 S.E.2d 534 (2006). In addition, the record
reflects that multiple firearms were used during the robbery.
As in Cromartie, defendant cannot show that joinder of the
charges “unjustly or prejudicially” hindered his ability to
present a defense. Id. (quoting State v. Floyd, 148 N.C. App.
290, 293, 558 S.E.2d 237, 239 (2002)).
Next, relying upon State v. Campbell, 296 N.C. 394, 399,
250 S.E.2d 228, 230 (1979), defendant argues that the trial
court erred by admitting evidence that one of his codefendants
pled guilty based on charges arising from the same incident.
Defendant, however, misreads Campbell as a blanket bar to the
admission of evidence of a codefendant’s plea agreement.
Instead, Campbell holds that evidence of a plea agreement “by
one defendant is [not] competent as evidence of the guilt of a
codefendant on the same charges.” Id. (emphasis added). Here,
the State introduced the evidence of the codefendant’s plea
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agreement not as evidence of defendant’s guilt, but to limit the
impact of cross-examination of the codefendant regarding his
potential bias arising from his own plea agreement with the
State. We also note that defendant did not object to the
admission of evidence of the plea agreement at trial, and in
fact extensively cross-examined the codefendant about his plea.
Accordingly, we hold this argument also lacks merit.
In his third argument, defendant asserts that the trial
court erred by denying his motion to dismiss the robbery charge.
Defendant’s claim is based on the assertion that the store clerk
named in the indictment apparently worked under a fictitious
name and thus was not a witness for the State at trial.
Defendant argues that in the absence of a testifying victim-
witness or compelling forensic evidence, the State entirely
relied on the testimony of his codefendant to obtain the robbery
conviction, and this evidence was insufficient to withstand his
motion to dismiss. We do not agree.
“When a defendant moves to dismiss a charge against him on
the ground of insufficiency of the evidence, the trial court
must determine ‘whether there is substantial evidence of each
essential element of the offense charged and of the defendant
being the perpetrator of the offense.’” State v. Garcia, 358
N.C. 382, 412, 597 S.E.2d 724, 746 (2004) (citation omitted),
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cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005). “In
reviewing challenges to the sufficiency of evidence, [the
appellate court] must view the evidence in the light most
favorable to the State, giving the State the benefit of all
reasonable inferences.” State v. Scott, 356 N.C. 591, 596, 573
S.E.2d 866, 869 (2002) (citation omitted). “‘If the evidence
. . . gives rise to a reasonable inference of guilt, it is for
. . . the jury to decide whether the facts shown satisfy them
beyond a reasonable doubt of defendant’s guilt.’” State v.
Bush, 78 N.C. App. 686, 688, 338 S.E.2d 590, 591 (1986)
(citation omitted).
Here, as defendant concedes, his codefendant testified that
defendant took part in the robbery. Defendant argues that his
codefendant’s testimony was not sufficiently credible to carry
the robbery charge to the jury. Viewed in the light most
favorable to the State, however, the codefendant’s testimony was
sufficient. The codefendant was an eyewitness to defendant’s
participation in the robbery, and his testimony was corroborated
by video evidence. See State v. Jackson, 215 N.C. App. 339,
346, 716 S.E.2d 61, 67 (2011) (holding that credibility of a
witness is a jury issue). Further, the State also presented
evidence that defendant attempted to redeem lottery tickets that
were proceeds of the robbery, another circumstantial link in the
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State’s case. Accordingly, we hold that this argument is
without merit.
Finally, defendant argues the trial court erred by failing
to instruct the jury concerning the issue of his guilt of the
lesser-included offense of common law robbery. Defendant’s
argument is based on his contention that the State, in the
absence of testimony from the victim-witness, offered
inconclusive evidence that the weapon used in the robbery was a
dangerous weapon as a matter of law. We disagree.
Common law robbery is a lesser-included offense of armed
robbery, so an indictment for armed robbery can support a
conviction for either offense. Common law robbery is
distinguished from armed robbery by the absence of the use or
threatened use of a dangerous weapon. State v. Smallwood, 78
N.C. App. 365, 367, 337 S.E.2d 143, 144 (1985). Thus, “the gist
of the offense [of armed robbery] is not the taking of personal
property, but a taking or attempted taking by force or putting
in fear by the use of firearms or other dangerous weapon.”
State v. Harris, 8 N.C. App. 653, 656, 175 S.E.2d 334, 336
(1970).
We have previously held:
It is well-settled that “the trial court
must submit and instruct the jury on a
lesser included offense when, and only when,
there is evidence from which the jury could
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find that defendant committed the lesser
included offense.” But when the State’s
evidence is positive as to each element of
the crime charged and there is no
conflicting evidence relating to any
element, the submission of a lesser included
offense is not required.
State v. Harris, ___ N.C. App. ___, ___, 730 S.E.2d 834, 839
(citations omitted), disc. review denied, 366 N.C. 413, 736
S.E.2d 715 (2012), cert. denied sub nom Whitaker v. North
Carolina, ___ U.S. ___, 185 L. Ed. 2d 876 (2013).
If a defendant fails to request instructions on a lesser-
included offense, this Court reviews the trial court’s omission
of the instruction for plain error. State v. Robledo, 193 N.C.
App. 521, 530, 668 S.E.2d 91, 97 (2008). “A plain error is one
‘so fundamental as to amount to a miscarriage of justice or
which probably resulted in the jury reaching a different verdict
than it otherwise would have reached.’” State v. Carroll, 356
N.C. 526, 539, 573 S.E.2d 899, 908 (2002) (citation omitted),
cert. denied sub nom Carroll v. North Carolina, 539 U.S. 949,
156 L. Ed. 2d 640 (2003).
In this case, defendant did not request an instruction on
common law robbery and did not object to the charge as given.
Therefore, we must review defendant’s contention for plain
error. Here, the State presented both video and testimonial
evidence that defendant employed a gun in the robbery. In
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addition, the record reflects that multiple firearms were used
during the robbery and that the trial court instructed the jury
concerning the acting in concert doctrine. This evidence
supported an instruction on armed robbery and armed robbery
only. Defendant bases his argument on one response to a
question posed on cross-examination to his codefendant. In
response to that question, the codefendant admitted that at a
trial for another codefendant, he testified that the gun did not
work. The codefendant did not repeat that claim about the gun
during his testimony at this trial, however, and we do not
believe that, even if he had done so, such testimony would have
supported a common law robbery instruction given that multiple
firearms were used during the robbery. Thus, defendant cannot
satisfy the high standard required to demonstrate plain error.
In addition to reviewing defendant’s pro se argument, in
accordance with Anders, we have fully examined the record to
determine whether any issues of arguable merit appear therefrom.
We have been unable to find any possible prejudicial error and
conclude that the appeal is wholly frivolous.
NO ERROR.
Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).
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