An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-157
NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
STATE OF NORTH CAROLINA
v. Sampson County
Nos. 11 CRS 53012, 52998
GEORGE ANTHONY GRAHAM
Appeal by defendant from judgment entered 18 September 2013
by Judge Arnold Jones, II in Sampson County Superior Court.
Heard in the Court of Appeals 13 August 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Karen A. Blum, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender John F. Carella, for defendant-appellant.
CALABRIA, Judge.
George Anthony Graham (“defendant”) appeals from a judgment
entered upon jury verdicts finding him guilty of felonious
possession of stolen goods and possession of a firearm by a
convicted felon that includes his guilty plea to attaining
habitual felon status. We find no error at trial, but remand
for resentencing.
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I. Background
On 27 October 2011, Allen Starling (“Starling”) left his
residence on Pine Forest School Road in Roseboro, North Carolina
(“Starling’s residence”) at approximately 5:45 a.m. A few hours
later, one of Starling’s neighbors, Marcus Parker (“Parker”),
observed defendant leaving Starling’s residence carrying several
firearms wrapped in a white sheet. Parker notified Starling’s
landlords, who in turn notified both Starling and law
enforcement. When Starling returned to his residence, he
noticed several firearms missing from the gun case in his
bedroom. The missing items included a semiautomatic SKS rifle,
a Maverick 12-gauge pump action shotgun, a .44 black powder
pistol, and a Marksman automatic BB pellet pistol.
After defendant left Starling’s residence, he rode a
bicycle to the home of Stephanie McDougald (“Ms. McDougald”),
his father’s girlfriend. Someone reported to the Sampson County
Sheriff’s Department (“SCSD”) that a house had been broken into
and a black male holding two firearms in each hand was going in
the direction of Ms. McDougald’s residence. SCSD Officer
Anthony Keith Barefoot (“Officer Barefoot”) arrived at Ms.
McDougald’s residence to investigate. Ms. McDougald informed
Officer Barefoot that she and defendant were the only people at
home, and consented to a search of her home.
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During Officer Barefoot’s search of Ms. McDougald’s house
and curtilage, he encountered defendant sitting on an overturned
bucket outside the house. Officer Barefoot discovered a
Marksman automatic BB pellet pistol, shotgun shells for a 12-
gauge shotgun, and ammunition for an SKS rifle in defendant’s
bedroom. He also found a Maverick 12-gauge pump action shotgun
and semiautomatic SKS rifle located in the “pump house” in Ms.
McDougald’s backyard. Starling later identified the items
discovered in Officer Barefoot’s search as the items stolen from
his residence.
Defendant was subsequently arrested and indicted for
felonious breaking and entering, felonious larceny pursuant to
breaking and entering, felonious possession of stolen goods,
possession of a firearm by a convicted felon, and attaining
habitual felon status. At trial in Sampson County Superior
Court, Parker, Starling, Officer Barefoot, and Ms. McDougald
testified for the State. Parker testified that defendant was
the person he observed leaving Starling’s residence with the
firearms. The jury returned verdicts finding defendant guilty
of felonious possession of stolen goods and possession of a
firearm by a convicted felon. Defendant subsequently pled
guilty to attaining habitual felon status.
At sentencing, the trial court determined that defendant
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had a prior record level of VI. The trial court also found as a
mitigating factor that defendant had accepted responsibility for
his conduct on the possession of a firearm by a convicted felon
offense. The trial court then sentenced defendant in the
mitigated range to a minimum term of 90 months and a maximum
term of 120 months in the custody of the Division of Adult
Correction. Defendant appeals.
II. Jury Instruction
Defendant argues that the trial court erred in omitting an
element of the felonious possession of stolen goods offense in
the jury instructions. Specifically, defendant contends the
trial court omitted the critical element that “the defendant
knew or had reasonable grounds to believe that the property was
stolen pursuant to a breaking or entering.”
As an initial matter, the trial court listed the pattern
jury instructions it intended to give, and both the State and
defendant were given an opportunity to change or object to the
instructions. Defendant did not request any change to the
instruction on the felonious possession of stolen goods offense,
and agreed to the pattern instruction. In addition, defendant
did not object after the trial court instructed the jury.
Although defendant claims the trial court’s error in omitting
the fourth element was not harmless, we disagree.
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When a trial court promises to give a jury instruction and
then deviates from that instruction, errors arising from the
court’s later changes to the promised instruction are preserved.
See State v. Allen, 360 N.C. 297, 314, 626 S.E.2d 271, 285
(2006) (issue of trial court’s deviation from promised
instruction properly preserved for appellate review despite lack
of an objection after the instruction was given); see State v.
Keel, 333 N.C. 52, 56-57, 423 S.E.2d 458, 461 (1992) (issue of
jury instruction preserved for review without an objection where
trial court’s actual instruction differed from the agreed upon
pattern instruction). “[A] trial court must instruct the jury
on every essential element of an offense[.]” State v. Ramos,
363 N.C. 352, 355, 678 S.E.2d 224, 226 (2009) (quoting State v.
Hunt, 339 N.C. 622, 649, 457 S.E.2d 276, 292 (1995)).
Therefore, defendant has preserved this issue for appeal.
Generally, a jury instruction “must be construed as a whole
in the same connected way in which it was given. When thus
considered, if it fairly and correctly presents the law, it will
afford no ground for reversing the judgment, even if an isolated
expression should be found technically inaccurate.” State v.
Francis, 341 N.C. 156, 162, 459 S.E.2d 269, 272 (1995) (citation
and internal quotation marks omitted).
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In the instant case, the trial court instructed the jury,
in pertinent part, as follows:
The defendant has been charged with
felonious possession of stolen goods, which
is possession of property which the
defendant knew or had reasonable grounds to
believe had been stolen pursuant to a
breaking or entering. For you to find the
defendant guilty of this offense, the State
must prove five things beyond a reasonable
doubt: First, that the SKS semiautomatic
rifle, the Maverick 12-gauge pump shotgun
were stolen.
Property is stolen and taken and
carried away without the owners’s [sic]
consent by someone who intends at the time
to deprive the owner of its use permanently
and knows he is not entitled to take it.
Second, this property was stolen
pursuant to a breaking or entering.
Third, that the defendant possessed the
property.
One has possession of property when one
has both the power and intent to control its
disposition or use.
And—excuse me—I said five things; but
it’s four things.
And, fifth, that the defendant
possessed it with a dishonest purpose.
Converting it to his own use would be a
dishonest purpose.
So, ladies and gentlemen, if you find
from the evidence beyond a reasonable doubt
that the SKS semiautomatic rifle and the
Maverick 12-gauge pump shotgun were stolen
pursuant to a breaking or entering, and that
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on or about October 27, 2011 the defendant
possessed this property knowing or having
reasonable grounds to believe that the
property was stolen pursuant to a breaking
or entering; that the defendant possessed it
for a dishonest purpose, then it would be
your duty to return a verdict of guilty of
felonious possession of stolen goods.
Defendant contends that the trial court erred by omitting
the fourth element, that “the defendant knew or had reasonable
grounds to believe” the property was stolen pursuant to a
breaking or entering, from the enumerated elements. See
N.C.P.I.—Criminal 216.48A. The trial court’s instruction
initially appears to omit the fourth element, enumerating the
third and fifth elements. However, the trial court correctly
included all the essential elements of the offense both in the
introductory and concluding paragraphs. More importantly, the
fourth element, that the jury must find that defendant had
reasonable grounds to believe that the property was stolen
pursuant to a breaking or entering in order to return a guilty
verdict, was specifically included. When construed in its
entirety, the instruction fairly and correctly presented the
law, even though the trial court’s isolated expression was
technically inaccurate. Francis, 341 N.C. at 162, 459 S.E.2d at
272. Therefore, the trial court instructed the jury on every
essential element of the offense. This argument is overruled.
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III. Jury Question
Defendant also argues that the trial court erred in
declining to clarify the law in response to a written question
from the jury during deliberations. We disagree.
During deliberations, the jury submitted written questions
to the trial court, including: “Is a BB gun considered a
firearm?” The trial court discussed the jury’s question with
counsel:
Number 1: Is a BB gun considered a firearm?
You want to be heard on that?
[Defense Counsel]: We say no.
THE COURT: Well I’m sure your opponent says
yes. That’s not my question.
I’m not going to give them a “yes” or a
“no.” I think, you know, they need to rely
on their common sense and listen to the
evidence that they heard and make a –
they’re the triers of fact, not me.
[Defense Counsel]: And, Your Honor, I think
the most appropriate response would be
probably be [sic] to just indicate to them
that they have heard all the evidence.
The trial court subsequently instructed the jury in
response to the question:
THE COURT: The first one [question] is: Is a
BB gun considered a firearm?
FOREPERSON: Yes, sir.
THE COURT: I’ll answer that one first.
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FOREPERSON: Okay.
THE COURT: Members of the jury, all the
evidence has been presented. It is your
duty to decide from the evidence what the
facts are, and to apply the law that I gave
you to those facts.
Defendant contends that this issue has been preserved for
appeal because “a request for instructions constitutes an
objection.” State v. Rowe, ___ N.C. App. ___, ___, 752 S.E.2d
223, 227 (2013). Therefore, we will treat this as an objection.
When defense counsel stated “[w]e say no” in response to
the court’s question regarding whether she wanted to be heard
regarding the jury’s question, the trial court responded
“[t]hat’s not my question. I’m not going to give them a “yes”
or a “no.” I think, you know, they need to rely on their common
sense and listen to the evidence that they heard and make a –
they’re the triers of fact, not me.” Rather than disagree with
the trial court, defense counsel then indicated that “the most
appropriate response would be probably be [sic] to just indicate
to [the jury] that they have heard all the evidence.”
Therefore, defendant has waived his objection. However, the
plain error standard applies. See State v. Conley, ___ N.C.
App. ___, ___, 724 S.E.2d 163, 169 (2012) (“Where trial counsel
fails to object to the trial court’s instructions in response to
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a question from the jury seeking clarification, we review for
plain error.”). Under plain error review, a defendant “must
convince this Court 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).
The State presented evidence that defendant was in
possession of a semiautomatic SKS rifle and a Maverick 12-gauge
pump action shotgun as well as the BB gun. Specifically, the
State presented evidence that defendant was seen carrying the
firearms away from Starling’s residence in a white sheet, and
the stolen firearms were later found in the pump house behind
Ms. McDougald’s residence shortly after his arrival. Ammunition
for both an SKS rifle and a shotgun were found in defendant’s
bedroom at Ms. McDougald’s residence. Although the jury
specifically asked whether the BB gun was considered a firearm,
there is nothing in the record indicating that the jury failed
to consider all the evidence presented regarding the other
firearms and only considered defendant’s possession of the BB
gun in rendering its verdict. Furthermore, there was no
objection to the State’s evidence regarding the other firearms,
and the jury returned a verdict of guilty for the possession of
a firearm by a convicted felon. Defendant fails to show that
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the jury probably would have reached a different result had the
trial court answered the jury’s question differently. See id.
This argument is overruled.
IV. Sentencing
Defendant further argues that the trial court erred by
sentencing defendant to a maximum of 120 months when the correct
maximum sentence under the applicable sentencing guidelines was
117 months. We agree.
The Justice Reinvestment Act of 2011, in pertinent part,
amended sentencing guidelines for Class B1 through Class E
felonies. 2011 N.C. Sess. Laws 192, § 2(f). Prior to 1
December 2011, N.C. Gen. Stat. § 15A-1340.17(e) (2010) provided
for a minimum sentence of 90 months in the mitigated range and a
maximum sentence of 117 months. See N.C. Sess. Laws 192, § 2
(stating 1 December 2011 as effective date of amendment).
In the instant case, defendant’s offense occurred on 27
October 2011, a date prior to 1 December 2011. Defendant
contends, and the State concedes, that the trial court erred in
sentencing defendant to a maximum of 120 months imprisonment.
Therefore, this case should be remanded to the trial court to
resentence defendant to a maximum term of 117 months.
V. Conclusion
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Although the trial court deviated from the promised jury
instruction, when construed as a whole, it fairly and correctly
presented the law. Since the State presented evidence regarding
more than one firearm in addition to the BB gun, defendant has
failed to show that the jury only considered the BB gun when
rendering the verdict for possession of a firearm by a felon.
While there was no error at trial, we remand the case to the
trial court to correct the judgment. Defendant shall be
resentenced to a maximum term of 117 months, consistent with the
applicable law at the time of defendant’s offenses.
No error; remand for resentencing.
Judges ELMORE and STEPHENS concur.
Report per Rule 30(e).