State v. Robinson , 251 N.C. App. 326 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-490
Filed: 20 December 2016
Onslow County, Nos. 13 CRS 55492-93
STATE OF NORTH CAROLINA,
v.
DWAYNE ROBINSON, Defendant.
Appeal by Defendant from judgments entered 9 November 2015 by Judge Jack
W. Jenkins in Onslow County Superior Court. Heard in the Court of Appeals 5
October 2016.
Attorney General Roy Cooper, by Special Deputy Attorney General Hilda
Burnett-Baker, for the State.
Appellate Defender Glenn Gerding, by Assistant Public Defender Hannah H.
Love, for Defendant-Appellant.
INMAN, Judge.
A person who, while carrying a loaded firearm, starts a physical fight and
discharges the firearm injuring another person, is not entitled to a jury instruction
on the defense of accident.
Dwayne Robinson (“Defendant”) appeals from the judgments entered upon his
convictions for attempted first degree murder, assault with a deadly weapon with
intent to kill inflicting serious injury, and a sentencing enhancement for the assault
charge based on the fact that Defendant was wearing or had in his immediate
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Opinion of the Court
possession a bulletproof vest at the time of the assault. On appeal, Defendant first
argues that the trial court committed plain error by failing to instruct the jury on the
defense of accident. Additionally, Defendant argues that the trial court committed
plain error in its instructions to the jury regarding the bulletproof vest. After careful
review, we conclude that Defendant has failed to demonstrate plain error.
Factual and Procedural Background
Evidence presented at trial included the following:
On 23 August 2013, at approximately 10:30 p.m., Jacksonville Police
Department officers were dispatched in response to a 911 call reporting shots fired
near 600 Hammock Lane. Officers approaching the apartments in marked police
cruisers from different directions observed a sports utility vehicle recklessly speeding
away from the area. The officers converged on the vehicle, drew their weapons, and
ordered the vehicle’s occupants to step out.
Latasha Sutton (“Ms. Sutton”) was in the driver’s seat. Justin Johnson
(“Johnson”), Ms. Sutton’s boyfriend, was in the front passenger seat. In the back seat,
police found Defendant. Ms. Sutton’s two young children were also in the vehicle.
After removing all the occupants from the vehicle, officers detected the odor of
gunpowder. Crime scene investigators then arrived and searched the vehicle. They
found loaded handguns, handcuffs, ammunition, rope, gloves, a knife in its sheath,
and bulletproof vests. Ms. Sutton told officers, “[n]one of this would have happened
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if you would have done your job yesterday.” One of the officers had responded to a
domestic disturbance at the same address a day earlier and had seen Johnson, Ms.
Sutton, and Ms. Sutton’s estranged husband, Anthony Sutton (“Mr. Sutton”). The
Suttons were fighting over custody of their children.
After stopping the vehicle in which Defendant was riding, officers searched the
area outside the call address and found Mr. Sutton lying on the sidewalk, handcuffed
and bleeding from gunshot wounds. Officer Lonnie Horton observed that Mr. Sutton
had been shot once in the back of his left leg, just behind his knee, and once in the
front of his right thigh. Mr. Sutton was taken to the hospital and treated for his
injuries.
Defendant testified at trial as follows: Defendant had never met Mr. Sutton or
Ms. Sutton and had no knowledge of the Suttons’ child custody dispute prior to the
shooting that resulted in his arrest. Johnson lived in Fayetteville and Defendant
lived right outside of Fayetteville. They had become friends years earlier when both
were deployed in Iraq by the United States Army. Defendant telephoned Johnson on
23 August 2013 to invite him to a Fayetteville restaurant to celebrate Defendant’s
graduation from an Army leadership school. When Defendant arrived at Johnson’s
apartment at 6:00 p.m., Johnson asked Defendant to ride with him to pick up
Johnson’s girlfriend, Ms. Sutton, and to take her to pick up her children. Defendant
assumed the children were in Fayetteville. After Johnson and Defendant picked up
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Ms. Sutton, Defendant fell asleep in the back of Johnson’s vehicle. When he awoke,
the vehicle was parked at an apartment complex in Jacksonville. Defendant exited
the vehicle to stretch his legs and walked about 50 yards toward a nearby road.
Defendant testified that as he was walking back toward Johnson’s vehicle, he
was almost hit by an SUV that entered the parking lot. The SUV driver, Mr. Sutton,
parked and started walking in Defendant’s direction. Defendant confronted Mr.
Sutton about nearly hitting him, but Mr. Sutton said nothing and continued walking
past him. Defendant then grabbed Mr. Sutton by the back of his shirt, pulled and
shoved him down on the asphalt, and cursed at him. When Mr. Sutton stood up,
Defendant hit him in the head. Defendant and Mr. Sutton then began wrestling and
fighting in the parking lot. Defendant had a loaded .40 caliber gun in the waistband
of his pants, for which he had a concealed carry permit. During the fight, Mr. Sutton
pulled Defendant down to the ground. When Defendant stood up, his gun came loose,
slid down his pants leg, and was caught in his shoe. As Defendant tried to retrieve
the gun, Mr. Sutton grabbed for it as well, and the two continued to wrestle and fight
for the gun. Mr. Sutton had one hand on the barrel of the gun and the other hand on
Defendant’s wrist. Defendant’s finger was on the trigger of the gun. Defendant hit
Mr. Sutton’s hand off of the barrel, and the gun went off.
Defendant testified that after the gun discharged, the two men continued to
wrestle in the rough grass behind Mr. Sutton’s apartment building. The gun
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discharged again. Mr. Sutton then pulled away from the fight, and the gun
discharged a third time. After the third shot, the gun was out of both Defendant’s
and Mr. Sutton’s hands, and Defendant put Mr. Sutton into a chokehold to stop him
from fighting. Johnson then called out to Defendant, and Defendant told Johnson
they were in the yard behind the apartment. Johnson tackled Mr. Sutton and
attempted to handcuff him, but Johnson was unable to handcuff both hands.
Defendant and Johnson then ran away. Defendant denied pointing the gun at Mr.
Sutton at any time that night. Defendant also denied wearing a bulletproof vest.
Mr. Sutton testified at trial as follows: He had just parked his car outside his
apartment after 9:00 p.m. on 23 August 2013 and was standing in the parking lot and
using his phone when he noticed a man wearing a bulletproof vest and gloves walking
in his direction. Mr. Sutton thought it was odd that the man was wearing gloves
because the weather was hot. He was not concerned about the vest because he was
familiar with military service members exercising while wearing vests. When Mr.
Sutton next looked up from his phone, the man was holding a gun to his face. Mr.
Sutton struck the man in the face and ran, then heard a loud sound and his leg went
numb, and he knew he had been shot. Mr. Sutton tried to continue running but fell.
The man leaned over him and said, “do you want to die?” Mr. Sutton told the man
that “he wasn’t going to kill [any]body.” Mr. Sutton heard the gun discharge a second
time and believed he had been shot in the head. Mr. Sutton fought with the man for
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control of the gun, which resulted in the two men wrestling. While Mr. Sutton and
the man were wrestling, another man approached and tried to handcuff Mr. Sutton’s
hands together. Johnson also went through Mr. Sutton’s pockets, grabbed Mr.
Sutton’s keys, and ran away. Mr. Sutton eventually let go of the gun, tried to run
towards the building, and then heard a third gunshot.
Lawrence Herndon, a neighbor of Mr. Sutton’s, testified that he was in his
apartment that evening and looked out of his front window after he heard a “pop
noise.” He did not see anyone outside. Upon hearing a second “pop,” Herndon looked
out of his back window and saw Mr. Sutton on the ground and two people struggling
with him. Of the two men fighting with Mr. Sutton, the taller man had a gun and
was wearing a bulletproof vest. After seeing the taller man pointing a gun at Mr.
Sutton’s throat and hearing someone say the word “kill,” Herndon told his wife to call
911. Herndon later identified Defendant and Johnson as the two men fighting with
Mr. Sutton, and specifically identified Defendant as the man with the gun and
bulletproof vest.
Defendant was indicted on charges of attempted first degree murder, assault
with a deadly weapon with intent to kill inflicting serious injury, first degree
kidnapping, felony conspiracy, and wearing a bulletproof vest during the commission
of those crimes. On 9 November 2015, Defendant’s case was called for trial in Onslow
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County Superior Court. The State declined to proceed on the kidnapping and a
related conspiracy charge.
On 17 November 2015, the jury found Defendant guilty of attempted first
degree murder and assault with a deadly weapon with intent to kill inflicting serious
injury, and found that Defendant wore or had in his immediate possession a bullet-
proof vest at the time of the felony. The jury found Defendant not guilty of conspiracy
to commit first degree murder, conspiracy to commit assault with a deadly weapon
with intent to kill inflicting serious injury, and conspiracy to commit assault with a
deadly weapon inflicting serious injury. Defendant was sentenced to a minimum
term of 192 months to a maximum term of 243 months for the attempted first degree
murder charge and a minimum term of 157 months to a maximum term of 201
months for the assault with a deadly weapon with intent to kill inflicting serious
injury charge, applying the bulletproof vest enhancement. Defendant appeals his
convictions.
Analysis
I. Jury Instruction Regarding Defense of Accident
Defendant argues that the trial court erred by failing to instruct the jury on
the defense of accident because Defendant testified that his gun discharged
accidentally during the fight with Mr. Sutton. We hold that the trial court did not
err in omitting the instruction and that, even if the trial court had instructed the jury
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regarding the defense of accident, it is not probable that jurors would have reached a
different verdict.
Defendant’s counsel did not request an instruction regarding the theory of
accident. We therefore review for plain error. State v. Gregory, 342 N.C. 580, 584,
467 S.E.2d 28, 31 (1996). To show plain error, Defendant must establish “not only
that there was error, but that absent the error, the jury probably would have reached
a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
To prevail on appeal from the trial court’s failure to instruct jurors on a defense, a
defendant “must show that the requested instruction was not given in substance, and
that substantial evidence supported the omitted instruction.” State v. White, 77 N.C.
App. 45, 52, 334 S.E.2d 786, 792 (1985) (citations omitted). “The trial court need only
give the jury instructions supported by a reasonable view of the evidence.” Id. at 52,
334 S.E.2d at 792 (citation omitted).
Although this Court usually considers the evidence in a light most favorable to
the State when reviewing a criminal defendant’s assignment of error, the standard is
the opposite with respect to the omission of an instruction regarding a defense.
“When determining whether the evidence is sufficient to entitle a defendant to jury
instructions on a defense or mitigating factor, courts must consider the evidence in
the light most favorable to defendant.” State v. Mash, 323 N.C. 339, 348, 372 S.E.2d
532, 537 (1988) (citations omitted).
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The State argues that Defendant was not entitled to an instruction on the
defense of accident because Defendant admitted that he started the fight with Mr.
Sutton prior to the shooting. “The law is clear that ‘evidence does not raise the
defense of accident where the defendant was not engaged in lawful conduct when [a
shooting] occurred.’ ” State v. Gattis, 166 N.C. App. 1, 11, 601 S.E.2d 205, 211 (2004)
(quoting State v. Riddick, 340 N.C. 338, 342, 457 S.E.2d 728, 731 (1995)).
The evidence, even considered in a light most favorable to Defendant, reveals
that Defendant was engaged in wrongdoing when he shot Mr. Sutton. Defendant
admitted that he physically assaulted Mr. Sutton and had his hand on the trigger of
his gun when it discharged, injuring Mr. Sutton. Because by his own admission he
was engaged in wrongful conduct when he shot Mr. Sutton. Defendant was not
entitled to a jury instruction on the defense of accident.
Even assuming arguendo that Defendant was not precluded from asserting
the defense of accident and that the trial court erred in not sua sponte instructing the
jury on that defense, Defendant cannot establish plain error in light of other evidence
presented. Two eyewitnesses—Lawrence Herndon and Mr. Sutton—testified that
Defendant held a gun to Mr. Sutton’s head. Mr. Sutton testified that he was first
shot by Defendant in the back of his knee while running from him. Officer Lonnie
Horton, one of the first officers responding to the shooting scene, testified that Mr.
Sutton had an entry bullet wound in the back of his knee. We cannot conclude, in
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light of this evidence, that the jury probably would have reached a different result
had it been instructed regarding the defense of accident.
II. Jury Instruction Regarding Bulletproof Vest
Defendant next contends that the trial court erred in instructing the jury that,
if it found Defendant guilty of any of the crimes charged, it was required to determine
whether Defendant wore or had in his immediate possession a bulletproof vest at the
time he committed such crime. We conclude that the trial court did not err in this
instruction.
N.C. Gen. Stat. § 15A-1340.16C(a) provides:
If a person is convicted of a felony and it is found as
provided in this section that the person wore or had in his
or her immediate possession a bullet-proof vest at the time
of the felony, then the person is guilty of a felony that is
one class higher than the underlying felony for which the
person was convicted.
N.C. Gen. Stat. § 15A-1340.16C(a) (2015).
The trial court instructed the jury that if it found Defendant guilty of any
offense, it must answer “yes” or “no” to the question, “Do you find that he wore, or
had in his immediate possession, a bulletproof vest at the time he committed the
offense?” The trial court instructed the jury that the burden of proof on this issue
was on the State, and that the jury should answer “yes” to the question only if it found
the fact beyond a reasonable doubt.
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The North Carolina Constitution provides: “No person shall be convicted of any
crime but by the unanimous verdict of a jury in open court[.]” N.C. Const. art. I, §24.
The unanimity requirement is not violated “if the trial court merely instructs the jury
disjunctively as to various alternative acts which will establish an element of the
offense[.]” State v. Bell, 359 N.C. 1, 30, 603 S.E.2d 93, 113 (2004) (emphasis in
original) (quoting State v. Lyons, 330 N.C. 298, 302–03, 412 S.E.2d 308, 312 (1991)).
Defendant contends that the instruction regarding the bulletproof vest was
improper because it presented two alternative theories, only one of which was
supported by the evidence. “Where the trial judge has submitted the case to the jury
on alternative theories, one of which is determined to be erroneous and the other
properly submitted, . . . this Court will not assume that the jury based its verdict on
the theory for which it received a proper instruction.” State v. Pakulski, 319 N.C.
562, 574, 356 S.E.2d 319, 326 (1987).
Defendant does not dispute that both Mr. Sutton and Lawrence Herndon
testified that Defendant was wearing a bulletproof vest at the time of the shooting.
However, Defendant argues that by relying on this testimony, the State has failed to
contend that there was any evidence that could support an instruction that a
bulletproof vest was in Defendant’s immediate possession—as opposed to being worn
by Defendant—at the time of the shooting.
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In order to submit to a jury a criminal charge, including the enhancement
based upon use of a bulletproof vest during the commission of a felony, the State must
present substantial evidence, which is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–
79, 265 S.E.2d 164, 169 (1980) (citations omitted). To determine if evidence is
sufficient, this Court views the evidence in the light most favorable to the State. State
v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994).
Although Mr. Sutton and Lawrence Herndon testified that Defendant wore a
bulletproof vest at the time of the shooting, Defendant denied wearing a vest. If
jurors had believed Defendant’s testimony raised a reasonable doubt regarding
whether he had been wearing the vest, they could answer “yes” to the question on the
verdict sheet only if they found beyond a reasonable doubt that a bulletproof vest was
in Defendant’s “immediate possession” at the time of the shooting.
The State introduced evidence sufficient to support a reasonable inference that
a bulletproof vest was in Defendant’s immediate possession at the time of the
shooting. Police officers found a bulletproof vest in the back of the vehicle where
Defendant had been sitting when fleeing the scene of the shooting. Forensic testing
determined that the blood on the vest belonged to Mr. Sutton, whom Defendant shot.
Therefore, if jurors were not convinced beyond a reasonable doubt that Defendant
was wearing the vest during the shooting, they could reasonably infer that the vest
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was in Defendant’s immediate possession at the time he committed the offenses for
which he was found guilty. Because the evidence submitted was sufficient to allow
jurors to find either of the alternative theories submitted to them regarding
Defendant’s possession of a bulletproof vest at the time of the shooting—either by
wearing it or having it in his immediate possession—Defendant’s argument that the
charge was improperly submitted to the jury is without merit and is overruled.
Conclusion
The evidence submitted at trial precluded a jury instruction on the defense of
accident and supported a jury instruction on the charge that Defendant committed
felony assault while wearing or having in his immediate possession a bulletproof vest.
Accordingly, Defendant has failed to demonstrate plain error.
NO PLAIN ERROR.
Judges DAVIS and ENOCHS concur.
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