IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-67
Filed: 6 November 2018
Granville County, Nos. 15CRS051835-36
STATE OF NORTH CAROLINA
v.
KEVIN DARNELL GUY, Defendant.
Appeal by defendant from final judgments entered 23 August 2017 by Judge
Robert H. Hobgood in Granville County Superior Court. Heard in the Court of
Appeals 23 August 2018.
Attorney General Joshua H. Stein, by Assistant Attorney General Neal T.
McHenry, for the State.
Lisa A. Bakale-Wise for defendant.
BERGER, Judge.
Kevin Darnell Guy (“Defendant”) appeals from his convictions for robbery with
a dangerous weapon, possession of stolen goods, and simple possession of marijuana.
Defendant asserts that (1) his right to confront the witnesses against him under the
Sixth Amendment of the United States Constitution was violated; (2) the trial court
erred in denying his motions to dismiss; (3) the trial court failed to intervene ex mero
motu when the prosecutor made references to Defendant’s gang affiliation during
closing arguments; (4) the trial court erred in instructing the jury on acting in concert;
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and (5) his constitutional protection from double jeopardy was violated when the trial
court sentenced him for both robbery with a dangerous weapon and possession of
stolen goods. We review each argument in turn.
Factual and Procedural Background
On November 3, 2015, Joseph Ray (“Ray”), now deceased, went to an ATM to
withdraw money, but was unsuccessful because his disability check had not yet been
deposited. Upon returning around 1:20 a.m. to his home in Colonial Mobile Home
Park in Butner, North Carolina, he was robbed of his debit card at gunpoint.
His mother, Shirley P. Spalding (“Spalding”), testified that Ray entered the
home “pale as a ghost” and “shaking real bad.” He was “stuttering his words,” but
was able to say “I got robbed.” He further relayed to her that a man had put a gun to
his head while another individual wearing a clown mask was standing in front of him.
After Ray told the individuals that he had no cash but had his debit card, they took
his debit card and fled the scene in a car.
Ernest Pipkin (“Pipkin”) was inside Ray’s home at the time of the robbery.
Pipkin testified that, as he walked out of the mobile home, he saw “a car fly by” and
“jump the hump” of a large speed bump on the road that ran through the mobile home
park. Pipkin testified that he thought one of the tires on the car “caught a flat”
because he heard a loud “pow” when the car hit the speed bump.
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Butner Public Safety Officer Kevin Rigsby (“Officer Rigsby”) was on patrol that
night with three other officers when they received a report from 911 communications
that an armed robbery had just taken place and that the suspects had not been
apprehended. When Officer Rigsby arrived at Ray’s home, Ray was “very shaken up,
he was fumbling over his words and talking so fast, it sounded like he was speaking
another language.” Officer Rigsby further testified that:
[Ray] said that a silver -- It was four black subjects, four
black males is what he thought robbed him and one of them
had a short snubnosed revolver to the back of his head . . .
[and] [a]t that time the only information he provided was
that a silver car fled toward East C Street, and that he
wasn’t sure if all three subjects got into the vehicle or not.
The only clothing description he gave me was that one of
the subjects that he saw run around the 90 degree turn in
the mobile home park back toward the get away car was
wearing red. He couldn’t tell me whether it was a red hat,
red pants, he just said red.
As Officer Rigsby was speaking with Ray, he heard on his radio that Officer Cecilia
Duke (“Officer Duke”) had located a vehicle and suspects, which matched the
description provided by the Sheriff’s Department, less than a quarter-mile away from
Ray’s residence.
Officer Rigsby immediately left Ray to assist Officer Duke. He considered the
ongoing search an “emergency situation” because “[i]t was known that the robbery
included handguns and [O]fficer Duke was by herself with three to four possible
subjects.” When Officer Rigsby arrived at Piedmont Village, he saw Defendant
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changing a tire on the vehicle; a suspect wearing a red ball cap, a gray t-shirt, red
pants and red shoes; and a female suspect. Officer Rigsby also observed a black mask
in the open trunk of the silver car which was similar to the mask described by Ray.
Defendant admitted that the silver car was his. Once the suspects had been detained,
Officer Rigsby canvassed the area and found a loaded snubnosed revolver fifteen to
twenty feet away from Defendant’s car. Officer Duke also found Ray’s stolen debit
card and a bag of marijuana near the handgun.
On December 7, 2015, Defendant was indicted for possession of a firearm by a
felon; robbery with a dangerous weapon; possession of stolen goods; possession with
intent to manufacture, sell, or deliver marijuana; keeping or maintaining a vehicle
for the keeping or sale of marijuana; and possession of a stolen firearm. On August
16, 2017, Defendant filed a motion to suppress statements made by the victim shortly
after the alleged robbery. Before his trial began, Defendant’s motion to suppress was
denied and the charges of possession of a firearm by a felon and possession of a stolen
firearm were dismissed.
On August 23, 2017, Defendant was convicted of robbery with a dangerous
weapon, possession of stolen goods, and possession of marijuana. Defendant was
found not guilty of maintaining or keeping a vehicle for the keeping or selling of
marijuana. He was sentenced to a term of 96 to 128 months in prison for his
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conviction of robbery with a dangerous weapon and concurrent terms of sixty days for
possession of stolen goods and possession of marijuana.
Defendant gave notice of appeal on August 24, 2017. On September 6, 2017,
Defendant filed a pro se notarized, handwritten “Motion for Appeal” with the
Granville County Superior Court, but failed to serve his motion on the State.
“A defendant who has entered a plea of not guilty to a criminal charge, and
who has been found guilty of a crime, is entitled to appeal as a matter of right when
final judgment has been entered.” N.C. Gen. Stat. § 15A-1444(a) (2017). “[A]
jurisdictional default, such as a failure to comply with Rule 4 precludes the appellate
court from acting in any manner other than to dismiss the appeal.” State v.
Hammonds, 218 N.C. App. 158, 162, 720 S.E.2d 820, 823 (2012) (citation and
quotation marks omitted). However, a writ of certiorari may be issued “to permit
review of the judgments and orders of trial tribunals when the right to prosecute an
appeal has been lost by failure to take timely action.” N.C. R. App. P. 21(a)(1) (2017).
The power to do so is discretionary and may only be done in “appropriate
circumstances.” Id. We grant Defendant’s petition for a writ of certiorari and now
address the merits. We find no error in part, arrest judgment in part, and remand
for sentencing in part.
Analysis
I. Sixth Amendment Right to Confront Witnesses
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Defendant first asserts that the trial court erred by allowing Officer Rigsby to
testify about statements made to him by Ray after the robbery but before Defendant
had been apprehended. He argues this violated his Sixth Amendment right to
confront the witness against him. We disagree.
“The standard of review for alleged violations of constitutional rights is de
novo.” State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009). “A
violation of the defendant’s rights under the Constitution of the United States is
prejudicial unless [we find] that it was harmless beyond a reasonable doubt. The
burden is upon the State to demonstrate, beyond a reasonable doubt, that the error
was harmless.” N.C. Gen. Stat. § 15A-1443(b) (2017).
“The Confrontation Clause of the Sixth Amendment prohibits admission of
“testimonial” statements of a witness who did not appear at trial unless: (1) the party
is unavailable to testify and (2) the defendant had a prior opportunity to cross-
examine the witness.” State v. Glenn, 220 N.C. App. 23, 25, 725 S.E.2d 58, 61 (2012)
(citing Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004)). In this
context, testimonial means “at a minimum[,] prior testimony at a preliminary
hearing, before a grand jury, or at a former trial; and [statements given in] police
interrogations.” Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203. Additionally,
Statements are nontestimonial when made in the course of
police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is
to enable police assistance to meet an ongoing emergency.
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They are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that
the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal
prosecution.
Davis v. Washington, 547 U.S. 813, 822, 165 L. Ed. 2d 224, 237 (2006).
“In determining whether a declarant’s statements are testimonial, courts
should look to all of the relevant circumstances.” Michigan v. Bryant, 562 U.S. 344,
369, 179 L. Ed. 2d 93, 114 (2011). Factors for the courts to consider include:
(1) the purpose that reasonable participants would have
had, as ascertained from the individuals’ statements and
actions and the circumstances in which the encounter
occurred; (2) objective determination of whether an ongoing
emergency existed; (3) whether a threat remained to first
responders and the public; (4) medical condition of
declarant; (5) whether a nontestimonial encounter evolved
into a testimonial one; and (6) the informality of the
statement and circumstances surrounding the statement.
Glenn, 220 N.C. App. at 26, 725 S.E.2d at 61 (citation and quotation marks omitted).
Here, Ray’s statements to Officer Rigsby were made in an effort to assist in the
apprehension of armed suspects. When Officer Rigsby arrived at Ray’s home to
investigate the robbery call, the armed suspects had not been found, and Ray was
“very shaken up, was fumbling over his words and talking so fast, it sounded like he
was speaking another language.” Once Ray had calmed down, he informed Officer
Rigsby that a group of black males had robbed him, that one of them had put a
snubnosed revolver to the back of his head, and that another had worn a clown mask,
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and that the suspects had fled in a silver car. Ray also provided information that one
of the individuals involved in the robbery had on red apparel.
Shortly after Ray had made these statements, Officer Duke informed Officer
Rigsby that she had found the vehicle and suspects matching the description provided
by 911 communications. Officer Rigsby immediately left Ray to assist Officer Duke
because “[i]t was known that the robbery included handguns and [O]fficer Duke was
by herself with three to four possible subjects.”
Even though the suspects had already fled Ray’s home, there was still an
ongoing emergency that posed danger to the public. Under these circumstances,
Ray’s statements to Officer Rigsby were nontestimonial because they were provided
in an effort to assist police in meeting an ongoing emergency and to aid in the
apprehension of armed, fleeing suspects. The Confrontation Clause of the Sixth
Amendment only applies to testimonial statements and, so, does not bar the
introduction of Ray’s statements to Officer Rigsby. Therefore, the trial court did not
err in allowing Ray’s statements to be admitted into evidence.
II. Motion to Dismiss
Defendant next argues that the trial court erred in denying his motion to
dismiss each of the charges against him. We discuss each charge in turn.
“This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). “Upon defendant’s
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motion for dismissal, the question for the Court is whether there is substantial
evidence (1) of each essential element of the offense charged, or of a lesser offense
included therein, and (2) of defendant’s being the perpetrator of such offense. If so,
the motion is properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451,
455 (2000) (citation omitted).
“Substantial evidence 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). “When ruling on a motion to dismiss for insufficient evidence,
the trial court must consider the evidence in the light most favorable to the State,
drawing all reasonable inferences in the State’s favor.” State v. Miller, 363 N.C. 96,
98, 678 S.E.2d 592, 594 (2009).
A. Robbery with a Dangerous Weapon
Defendant contends the trial court erred in denying his motion to dismiss the
robbery charge because the evidence failed to show that Defendant either committed
the robbery himself or acted in concert with the actual perpetrators. We disagree.
“The essential elements of the crime of robbery with a dangerous weapon, or
armed robbery, are: (1) the unlawful taking or attempted taking of personal property
from another; (2) the possession, use or threatened use of firearms or other dangerous
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weapon, implement or means; and (3) danger or threat to the life of the victim.” State
v. Sullivan, 216 N.C. App. 495, 501-02, 717 S.E.2d 581, 585-86 (2011) (purgandum1).
In the commission of a crime, to prove that a defendant was acting in concert,
[i]t is not . . . necessary for a defendant to do any particular
act constituting at least part of a crime in order to be
convicted of that crime under the concerted action principal
so long as (1) he is present at the scene of the crime and (2)
the evidence is sufficient to show he is acting together with
another who does the acts necessary to constitute the crime
pursuant to a common plan or purpose to commit the crime.
State v. Williams, 299 N.C. 652, 656-57, 263 S.E.2d 774, 778 (1980) (citation omitted).
“If two or more persons join in a purpose to commit robbery with a dangerous weapon,
each of them, if actually or constructively present, is guilty of that crime if the other
commits the crime, if they shared a common plan to commit that offense.” State v.
Hill, 182 N.C. App. 88, 92, 641 S.E.2d 380, 385 (2007).
“While actual distance from the crime scene is not always controlling in
determining constructive presence, the accused must be near enough to render
assistance if need be and to encourage the actual perpetration of the crime.” State v.
Buie, 26 N.C. App. 151, 153, 215 S.E.2d 401, 403 (1975) (citations omitted).
Furthermore, “[t]he theory of acting in concert does not require an express agreement
1 Our shortening of the Latin phrase “Lex purgandum est.” This phrase, which roughly
translates “that which is superfluous must be removed from the law,” was used by Dr. Martin Luther
during the Heidelberg Disputation on April 26, 1518 in which Dr. Luther elaborated on his theology
of sovereign grace. Here, we use purgandum to simply mean that there has been the removal of
superfluous items, such as quotation marks, ellipses, brackets, citations, and the like, for ease of
reading.
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between the parties. All that is necessary is an implied mutual understanding or
agreement to do the crimes.” Hill, 182 N.C. App. at 93, 641 S.E.2d at 385 (2007)
(citation omitted).
In the present case, even though Defendant was not identified at the scene of
the crime, the jury could have made reasonable inferences from the evidence that
Defendant acted in concert to commit robbery with a dangerous weapon. At trial,
Pipkin, who was at the scene of the crime, testified that he saw a car fly by him and
heard that same car hit a large speed bump and blow out a tire as it was fleeing. The
Granville County Sherriff’s Department reported a silver car was involved in an
armed robbery involving three to four suspects. Officer Duke testified that less than
a minute after receiving the 911 communication over the radio, she found Defendant
changing a flat tire on his vehicle, along with two other individuals, less than a
quarter mile away from the scene of the crime. Additionally, Ray’s debit card was
found in close proximity to Defendant’s vehicle where Defendant was changing the
flat tire. The mask, snubnosed revolver, and the suspect wearing a red hat and red
clothing all matched the descriptions provided by Ray and were located or recovered
at or near Defendant’s vehicle.
When viewed in the light most favorable to the State, substantial evidence was
introduced at trial sufficient to support a reasonable inference that Defendant acted
in concert to commit robbery with a dangerous weapon. Therefore, the trial court did
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not err by denying Defendant’s motion to dismiss the robbery with a dangerous
weapon charge.
B. Possession of Stolen Goods and Possession of Marijuana
Defendant argues that the trial court erred in denying his motions to dismiss
the felony charges of possession of stolen goods and possession of marijuana because
he never had actual or constructive possession of the stolen debit card or the
marijuana. We disagree.
The elements of the crime of possession of stolen goods are: “(1) possession of
personal property; (2) which has been stolen; (3) the possessor knowing or having
reasonable grounds to believe the property to have been stolen; and (4) the possessor
acting with a dishonest purpose.” State v. Tanner, 364 N.C. 229, 232, 695 S.E.2d 97,
100 (2010) (citation omitted). “[A] conviction for felonious possession of marijuana
requires proof that defendant was in possession of more than one and one-half ounces
(or approximately 42 grams) of marijuana.” State v. Ferguson, 204 N.C. App. 451,
459, 694 S.E.2d 470, 476 (2010) (citation and quotation marks omitted).
Our Supreme Court has explained what is necessary to prove possession:
In a prosecution for possession of contraband materials, the
prosecution is not required to prove actual physical
possession of the materials. Proof of nonexclusive,
constructive possession is sufficient. Constructive
possession exists when the defendant, while not having
actual possession, . . . has the intent and capability to
maintain control and dominion over the [contraband].
Where such materials are found on the premises under the
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control of an accused, this fact, in and of itself, gives rise to
an inference of knowledge and possession which may be
sufficient to carry the case to the jury on a charge of
unlawful possession. However, unless the person has
exclusive possession of the place where the [contraband]
[is] found, the State must show other incriminating
circumstances before constructive possession may be
inferred.
State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270-71 (2001) (citations and
quotation marks omitted). “Constructive possession depends on the totality of the
circumstances in each case. No single factor controls, but ordinarily the questions
will be for the jury.” State v. Butler, 147 N.C. App. 1, 11, 556 S.E.2d 304, 311 (2001)
(citation omitted), aff’d, 356 N.C. 141, 567 S.E.2d 137 (2002).
This court has previously found incriminating circumstances sufficient to
prove non-exclusive, constructive possession where there was: (1) evidence the
defendant had a “specific or unique connection to the place where the [items] were
found”; (2) evidence the defendant “behaved suspiciously, made incriminating
statements . . . ., or failed to cooperate with law enforcement”; (3) indicia of the
defendant’s control over the place where the contraband was found; or (4) other
incriminating evidence in addition to the fact that the items were located near the
defendant. Ferguson, 204 N.C. App. at 460-64, 694 S.E.2d at 477-80 (2010) (citations
omitted).
Here, the State presented substantial evidence that tended to establish that
Defendant had constructive possession of both the debit card and the marijuana. The
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debit card with Ray’s name on it and the marijuana were both found in close
proximity to Defendant and his car, which he admitted he owned. Because of their
proximity to the debit card and marijuana, Defendant and those with whom he acted
in concert had the ability to exercise control over the contraband. Additionally,
Officer Duke spotted Defendant’s car and the suspects about one minute after
receiving information from the Granville County Sheriff’s Department. The brief
period of time between the robbery and the locating of the suspects with the stolen
debit card supports an inference that Defendant had knowledge of the robbery and
the presence of Ray’s debit card.
Based upon the totality of the circumstances, there was substantial evidence
from which a reasonable juror could conclude that Defendant had constructive
possession of both the debit card and the marijuana. The “evidence is for the jury to
weigh, not the trial court, and it is certainly not for the appellate courts to reweigh
. . . [because] [w]hen a trial court rules on a motion to dismiss, the court gives
considerable deference to the State’s evidence.” State v. Chekanow, 370 N.C. 488,
499, 809 S.E.2d 546, 554 (2018) (purgandum). Therefore, the trial court did not err
in denying Defendant’s motion to dismiss because the State introduced sufficient
incriminating circumstances to prove that Defendant had constructive possession of
both the stolen debit card and the marijuana.
III. Closing Arguments
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Defendant next argues that the trial court abused its discretion in failing to
intervene ex mero motu when the State referred to Defendant’s gang ties in its closing
argument. We disagree.
North Carolina General Statute § 15A-1230(a) provides that in closing
arguments,
an attorney may not become abusive, inject his personal
experiences, express his personal belief as to the truth or
falsity of the evidence or as to the guilt or innocence of the
defendant, or make arguments on the basis of matters
outside the record except for matters concerning which the
court may take judicial notice.
N.C. Gen. Stat. § 15A-1230(a) (2017).
“The standard of review for assessing alleged improper closing arguments that
fail to provoke timely objection from opposing counsel is whether the remarks were
so grossly improper that the trial court committed reversible error by failing to
intervene ex mero motu.” State v. Waring, 364 N.C. 443, 499, 701 S.E.2d 615, 650
(2010) (citation and quotation marks omitted). “In other words, the reviewing court
must determine whether the argument in question strayed far enough from the
parameters of propriety that the trial court, in order to protect the rights of the
parties and the sanctity of the proceedings, should have intervened on its own
accord.” State v. Huey, 370 N.C. 174, 179, 804 S.E.2d 464, 469 (2017) (citation
omitted).
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“[W]hen defense counsel fails to object to the prosecutor’s improper argument
and the trial court fails to intervene, the standard of review requires a two-step
analytical inquiry: (1) whether the argument was improper; and, if so, (2) whether
the argument was so grossly improper as to impede the defendant’s right to a fair
trial.” Huey, 370 N.C. at 179, 804 S.E.2d at 469. Our Supreme Court explained:
[A]lthough control of jury argument is left to the discretion
of the trial judge, trial counsel must nevertheless conduct
themselves within certain statutory parameters. It is
improper for lawyers in their closing arguments to become
abusive, inject their personal experiences, express their
personal belief as to the truth or falsity of the evidence or
as to the guilt or innocence of the defendant, or make
arguments on the basis of matters outside the record.
Within these statutory confines, we have long recognized
that prosecutors are given wide latitude in the scope of
their argument and may argue to the jury the law, the facts
in evidence, and all reasonable inferences drawn
therefrom.
If an argument is improper, and opposing counsel
fails to object to it, the second step of the analysis requires
a showing that the argument is so grossly improper that a
defendant’s right to a fair trial was prejudiced by the trial
court’s failure to intervene. Our standard of review dictates
that only an extreme impropriety on the part of the
prosecutor will compel this 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
spoken. It is not enough that the prosecutors’ remarks were
undesirable or even universally condemned. For an
appellate court to order a new trial, the relevant question
is whether the prosecutors’ comments so infected the trial
with unfairness as to make the resulting conviction a
denial of due process.
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Id. at 179-80, 804 S.E.2d at 469-70 (purgandum).
Here, Defendant challenges the following statements made by the State during
closing arguments:
I contend to you that they’re gang members from Durham,
and when he says he is like his big brother, I’ll bet he is.
He’s his big brother gang member and they’re going to do
anything to protect their gang member. Because they got
caught. And they have nothing to lose. They’re pulling their
time, now. But they want to help their gang member buddy
out. And that’s why they got up here and told so many lies,
to help their big brother gang member out. We have to
figure what kind of society and what kind of county we
want to live in. Do want to live somewhere where gang
people from Durham can come and rob a little old man who
didn’t have anything. He gave them all that he [had] which
was the debit card, but there wasn’t any money in his
account because he hadn’t even gotten his disability check.
Is that the kind of county and society we want to live in?
Defendant called co-defendants John Morrell III and Tyquon Smith as
witnesses. Both testified they were gang members, and Smith admitted that he was
in the same gang as Defendant. The two admitted they did not live in Butner, and
John Morrell stated they drove to Butner from Durham on the night of the robbery.
The prosecutor’s statements here merely commented on the evidence
presented by Defendant at trial, i.e., Defendant and his associates were Durham gang
members. Also, the State’s argument did not center around Defendant’s gang-
involvement. The prosecutor’s only reference to gang-involvement was in one
paragraph during her entire closing argument. As such, in light of the overall factual
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circumstances, the prosecutor’s reference to Defendant’s gang membership did not
infect “the trial with unfairness [such] that they rendered the conviction
fundamentally unfair.” Waring, 364 N.C. at 500, 701 S.E.2d at 650 (citation omitted).
Moreover, the prosecutor’s commentary on the evidence has not been shown to be
“calculated to lead the jury astray.” Jones, 355 N.C. at 133, 558 S.E.2d at 107-08.
Instead, the prosecutor’s statements were supported by the evidence introduced by
Defendant at trial, and in light of the evidence presented at trial, were not improper.
In addition, “[t]his Court has consistently held that a prosecutor may argue
that a jury is the voice and conscience of the community . . . and [a] prosecutor may
also ask the jury to send a message to the community regarding justice.” State v.
Barden, 356 N.C. 316, 367, 572 S.E.2d 108, 140 (2002) (purgandum). Here, the
prosecutor ended her argument by urging the jury to be the voice and conscience of
Granville County by thinking about “the kind of county and society we want to live
in.” The prosecutor’s argument was simply a reminder to the jury that they should
carefully consider their duties and responsibilities as jurors, and that the quality of
justice in Granville County ultimately rests with citizens who properly perform their
function as jurors. Because the prosecutor’s statements during closing arguments
were not improper, we find no error.
IV. Jury Instruction
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Defendant argues that the trial court committed plain error by instructing the
jury on “acting in concert” because it was unsupported by the evidence and directly
impacted the jury’s decision to convict. We disagree.
“In order to preserve an issue for appellate review, a party must have
presented to the trial court a timely request, objection, or motion, stating the specific
grounds for the ruling the party desired the court to make if the specific grounds were
not apparent from the context.” N.C. R. App. P. 10(a)(1) (2017). “In criminal cases,
an issue that was not preserved by objection noted at trial and that is not deemed
preserved by rule or law without any such action nevertheless may be made the basis
of an issue presented on appeal when the judicial action questioned is specifically and
distinctly contended to amount to plain error.” N.C. R. App. P. 10(a)(4) (2017).
Defendant concedes that he failed to object at trial, but specifically argues plain error
on appeal.
“Under the plain error rule, 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)
(citation omitted). Plain error review “requires the defendant to bear the heavier
burden of showing that the error rises to the level of plain error.” State v. Lawrence,
365 N.C. 506, 516, 723 S.E.2d 326, 333 (2012).
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“Under the doctrine of acting in concert, if two or more persons are acting
together in pursuance of a common plan or purpose, each of them, if actually or
constructively present, is guilty of any crime committed by any of the others in
pursuance of the common plan.” State v. Barts, 316 N.C. 666, 688-89, 343 S.E.2d 828,
843 (1986); State v. Williams, 299 N.C. 652, 656-57, 263 S.E.2d 774, 777-78 (1980).
Even if the Defendant had timely objected to the acting in concert jury instruction,
the instruction was supported by the evidence and did not amount to error.
Here, Defendant and two others were located approximately a quarter-mile
from the location where the robbery took place. Defendant was changing a tire on a
car that matched the description of the vehicle in which the robbers had fled the scene
and a witness heard a tire blew out. Defendant had a mask in his vehicle that
matched the description of the mask used in the robbery; the victim’s stolen debit
card was located in close proximity to Defendant, as was a snubnosed revolver similar
to the one used in the robbery.
Again, Pipkin testified that he saw a car fly by him and heard that same car
hit a large speed bump as it was fleeing. Officer Duke found Defendant changing a
flat tire of a car less than a quarter mile away from the scene of the crime after
hearing the 911 communications report that a silver car was involved in an armed
robbery. In addition, the snubnosed handgun reported to have been used at the scene
of the crime was about fifteen feet from Defendant’s car.
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STATE V. GUY
Opinion of the Court
Even if Defendant was not the person who had robbed Ray of his debit card,
there was substantial evidence that in the early morning hours of November 3, 2015,
Defendant was aiding or otherwise assisting others in a common plan or purpose to
rob Ray and flee the scene. Thus, an acting in concert instruction was supported by
the evidence, and, therefore, the trial court did not err in giving this instruction.
Because Defendant has not shown that the trial court erred in giving the acting in
concert instruction, he cannot show plain error.
V. Double Jeopardy
Defendant argues, for the first time on appeal, that he was improperly
sentenced for both robbery with a dangerous weapon and possession of stolen goods,
when the latter involved proceeds from the former, in violation of the Constitution’s
prohibition against double jeopardy. Defendant concedes that he failed to object at
sentencing on double jeopardy grounds.
“A defendant’s failure to object below on constitutional double jeopardy
grounds typically waives his or her right to appellate review of the issue. . . . Further,
our Rules of Appellate Procedure require a defendant to make a timely request,
objection, or motion below, stating the specific grounds for the desired ruling in order
to preserve an issue for appellate review.” State v. Harding, ___ N.C. App. ___, ___,
813 S.E.2d 254, 261 (purgandum), disc. review denied, ___ N.C. ___, 817 S.E.2d 205
(2018). However, if “[t]he sentence imposed was unauthorized at the time imposed,
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STATE V. GUY
Opinion of the Court
exceeded the maximum authorized by law, was illegally imposed, or is otherwise
invalid as a matter of law,” it may be subject to appellate review even though no
objection, exception or motion was made at trial. N.C. Gen. Stat. § 15A-1446(d)(18)
(2017). We address the merits of defendant’s arguments and arrest judgment for his
conviction of possession of stolen goods.
“[T]he Legislature created the statutory offense of possession of stolen goods
as a substitute for the common law offense of larceny in those situations in which the
State could not provide sufficient evidence that the defendant stole the property at
issue.” State v. Moses, 205 N.C. App. 629, 640, 698 S.E.2d 688, 696 (2010) (citation
omitted). In light of this determination, “the Legislature also did not intend to subject
a defendant to multiple punishments for both robbery and the possession of stolen
goods that were the proceeds of the same robbery.” Id. The “[p]rinciples of legislative
intent . . . proscribe punishment for possession during the course of the same conduct,
and where the property is the same property.” State v. Hendricksen, ___ N.C. App.
___, ___, 809 S.E.2d 391, 395 (citation and quotation marks omitted), review denied,
___ N.C. ___, 812 S.E.2d 856 (2018).
In the present case Defendant was convicted of robbery with a dangerous
weapon, possession of stolen goods, and possession of marijuana. Defendant’s
convictions for possession of stolen goods and possession of marijuana were
consolidated and that sentence was to run concurrently with the robbery with a
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STATE V. GUY
Opinion of the Court
dangerous weapon sentence. However, in light of Moses and Hendricksen, we are
required to arrest judgment on Defendant’s sentence for possession of stolen goods.
Furthermore, Defendant’s conviction of misdemeanor possession of stolen
goods was consolidated with his conviction of misdemeanor possession of marijuana,
which required him to serve a sentence of 60 days in custody. Possession of less than
one-half ounce of marijuana is a Class 3 misdemeanor. N.C. Gen. Stat. § 90-95(d)(4).
A defendant with a prior record level III convicted of a Class 3 misdemeanor can only
be sentenced to a maximum of 20 days in custody. N.C. Gen. Stat. § 15A-1340.23(c).
Because we arrested judgment for possession of stolen goods, we remand for the
resentencing of Defendant’s conviction of possession of marijuana.
Conclusion
The trial court properly admitted Ray’s statements because they were
nontestimonial. The trial court properly denied Defendant’s motions to dismiss
because the State presented substantial evidence of each element to support a
conviction for each offense. The trial court did not abuse its discretion by not
intervening ex mero motu during the prosecutor’s closing statements because there
was nothing improper about the prosecutor’s closing arguments. The trial court did
not err in instructing the jury on acting in concert because the instruction was
supported by the evidence introduced at trial. We arrest judgment on Defendant’s
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STATE V. GUY
Opinion of the Court
conviction for possession of stolen goods, and remand for resentencing on the
possession of marijuana conviction.
NO ERROR IN PART; ARREST JUDGMENT IN PART; REMANDED IN
PART.
Judges DIETZ and TYSON concur.
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