State v. Ballard, COA12–159.

• Decision Date: 07 August 2012
• Docket Number: No. COA12–159.,COA12–159.
• Citation: 729 S.E.2d 730
• Parties: STATE of North Carolina v. Jabar BALLARD.
• Court: North Carolina Court of Appeals

729 S.E.2d 730

STATE of North Carolina

v.Jabar BALLARD.

No. COA12–159.

Court of Appeals of North Carolina.

Aug. 7, 2012.

Appeal by defendant from judgments entered 6 October 2011 by Judge Robert F. Floyd in Brunswick County Superior Court. Heard in the Court of Appeals 30 July 2012.

Attorney General Roy Cooper, by Special Deputy Attorney General Mabel Y. Bullock, for the State.

Sue Genrich Berry, for defendant-appellant.

HUNTER, ROBERT C., Judge.

Defendant appeals from judgments entered upon jury verdicts convicting him of robbery with a firearm, assault by pointing a gun, and possession of a firearm by a felon.

The State presented evidence tending to show that around daybreak on 13 November 2009, Hardie Ballard, III (“Ballard”) and his son, Kashon, were walking from their residence headed to Ballard's car when they were approached by a man wearing a mask. This man, identified by Ballard and Kashon as defendant, pointed a gun at them, ordered Ballard and Kashon to fall to the ground, and commanded Ballard to put on handcuffs. Defendant took Ballard's wallet, removed cash from it, and returned it to Ballard. Defendant handcuffed Ballard and instructed him to go into the house. Ballard collected whatever money he could inside the house and threw the money out the back door. Defendant released Kashon and departed. Ballard had approximately $620.00 in his wallet. He threw approximately $200.00 to $300.00 out the door.

Ballard identified the masked man as defendant by voice and face recognition. Ballard testified that he and defendant are cousins who grew up playing together and saw each other on weekends when Ballard visited his paternal grandparents. He had seen and spoken to defendant in a grocery store approximately two months prior to 13 November 2009.

The sole issue presented is whether the trial court erred by denying defendant's request to instruct the jury pursuant to North Carolina Pattern Jury Instruction for Criminal Cases 104.90, “Identification of Defendant as Perpetrator of a Crime,” which states:

I instruct you that the State has the burden of proving the identity of the defendant as the perpetrator of the crime charged beyond a reasonable doubt. This means that you, the jury, must be satisfied beyond a reasonable doubt that the defendant was the perpetrator of the crime charged before you may return a verdict of guilty.

N.C.P.I.—Crim. 104.90 (2005). We find no error.

A requested jury instruction which is a correct statement of the law and which is supported by the evidence must be given at least in substance. State v. Fullwood, 323 N.C. 371, 390, 373 S.E.2d 518, 529 (1988), death sentence vacated,494...