State v. Calderon
| Decision Date | 07 July 2015 |
| Docket Number | No. COA14–1131.,COA14–1131. |
| Citation | 242 N.C.App. 125,774 S.E.2d 398 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Jesus CALDERON, Defendant. State of North Carolina v. Christopher Lashon Miller, Jr., Defendant. |
Attorney General, Roy Cooper, by Assistant Attorney General, LaShawn S. Piquant and Assistant Attorney General, Rebecca E. Lem, for the State.
Appellate Defender, Staples Hughes, by Assistant Appellate Defender, Constance E. Widenhouse, for Defendant–Appellant Calderon.
Leslie C. Rawls, Charlotte, for Defendant–Appellant Miller.
Jesus Calderon ("Defendant Calderon") and Christopher Lashon Miller, Jr. ("Defendant Miller") (collectively "Defendants") appeal from judgments entered upon jury verdicts finding Defendants each guilty of four counts of robbery with a firearm and two counts of attempted robbery with a firearm, and finding Defendant Calderon guilty of one count of possession of a firearm by a felon. We find no prejudicial error.
The evidence at trial tended to show that Christopher Moore ("Mr. Moore") and Defendants were "chilling, smoking [marijuana], and drinking" at an apartment complex in Shelby, North Carolina, on 5 June 2013. They ran out of marijuana and decided to walk to the neighboring Ramblewood Apartments complex ("Ramblewood") "to go rob somebody for some weed." Defendant Calderon, armed with a twenty-two-caliber pistol, and Defendant Miller, armed with a nine-millimeter pistol, walked with Mr. Moore to Bobbie Yates's apartment ("the apartment") in Ramblewood to steal marijuana, since Mr. Moore said he had previously purchased marijuana from Bobbie Yates and believed there would be marijuana in the apartment. When Defendants and Mr. Moore approached Ramblewood, they encountered Bobby Hamrick ("Mr. Hamrick"), who was standing outside the apartment and who told them: When Defendants and Mr. Moore learned from Mr. Hamrick that there was an ongoing card game with "such a[sic] amount of money" on the table, they left Ramblewood and returned to the apartment complex, where they retrieved a shotgun for Mr. Moore. Defendants and Mr. Moore, all now armed, returned to the apartment in Ramblewood.
There were a number of people in the apartment, including Bobbie Yates, Cordell Yates, Mr. Hamrick, Terrance Norris ("Mr. Norris"), Anthony Charles ("Mr. Charles"), Troy Vinson ("Mr. Vinson"), Terris Parker ("Mr. Parker"), and Jackie Allen ("Mr. Allen"), as well as the ten-year-old son of Mr. Charles. Bobbie Yates, Cordell Yates, Mr. Charles, Mr. Hamrick, and Mr. Vinson were seated around the kitchen table playing poker, and each of the men had money on the table. Others, including Mr. Charles's ten-year-old son, were seated on one part of a sectional couch in the adjoining living room, and Mr. Allen, who had been drinking alcohol earlier in the evening, was either "passed out" or asleep on another part of the couch. The apartment had an open floor plan, so there was no wall or barrier separating the kitchen from the living room.
As the card game continued, there was a knock on the front door and when the door was opened, Defendants and Mr. Moore "rushed in," all with weapons in hand. As they pointed their weapons at the people in the apartment, one of them announced: Several of the people in the apartment testified that they knew or recognized Defendants and Mr. Moore.
Once Defendants and Mr. Moore entered the apartment, Defendants stood with their weapons raised and pointed at the people in the apartment while Mr. Moore grabbed the $200.00 to $300.00 off the kitchen table and searched through some of the people's pockets, and Mr. Hamrick's socks, for more money. Mr. Moore held his shotgun in his left hand as he proceeded to take the money off the table and from the people in the apartment and put it in his pocket.
One of the people in the living room testified that, when Mr. Moore approached Mr. Parker, Mr. Parker refused to give Mr. Moore his money, stating: Mr. Moore then pressed the barrel of his shotgun to Mr. Parker's forehead, said, "Motherf–––er, I kill you," and reached inside Mr. Parker's pockets and took his money. Mr. Charles, whose attention was on the living room where his son was located throughout the robbery, saw Mr. Moore search through Mr. Allen's pockets as he lay on the couch, either "passed out" or asleep, although no witness saw Mr. Moore take any money from Mr. Allen. The entire robbery lasted between two and four minutes, and after the money was collected, Defendants and Mr. Moore told the people not to leave the apartment for ten minutes "or they was [sic] going to kill whoever came the f––– out." As soon as Defendants and Mr. Moore left the apartment, one of the people in the apartment called the police.
Mr. Moore pleaded guilty to nine counts of armed robbery and agreed to testify at Defendants' trial. Defendants were each indicted on multiple counts of robbery with a dangerous weapon. Defendant Calderon was also indicted on one count of possession of a firearm by a felon. Defendants were tried jointly. At trial, Defendants moved to dismiss the charges at the close of the State's evidence and at the close of all of the evidence. Two counts of robbery with a dangerous weapon were dismissed against each Defendant, and two counts were reduced to attempted robbery with a firearm.
Defendant Calderon was found guilty by a jury of four counts of robbery with a firearm, two counts of attempted robbery with a firearm, and one count of possession of a firearm by a felon, and was sentenced to two consecutive terms of 73 months to 100 months' imprisonment for the robbery and attempted robbery convictions, and to one term of fourteen to twenty-six months' imprisonment for the possession of a firearm by a felon conviction, to begin upon the expiration of the other sentences.
Defendant Miller was found guilty by a jury of four counts of robbery with a firearm and two counts of attempted robbery with a firearm, and was sentenced to two consecutive terms of sixty-four to eighty-nine months' imprisonment. Both Defendant Calderon and Defendant Miller appeal.
Defendant Calderon first contends the trial court erred by failing to provide a "not guilty" mandate to the jury when the court gave its instruction on the offense of robbery with a firearm and on the lesser-included offense of common law robbery. Defendant Calderon asserts that, because the trial court's charge to the jury diverged from the pattern jury instructions and did not expressly instruct the jury on its duty to return a verdict of not guilty if certain conditions were met, he was deprived of his fundamental right to have all permissible verdicts submitted to the jury and thus requires a new trial. We disagree.
362 N.C. 368, 628 S.E.2d 9 (2006). "For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial." State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). "To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty." Id. (internal quotation marks omitted).
"Every criminal jury must be instructed as to its right to return, and the conditions upon which it should render, a verdict of not guilty." State v. Chapman, 359 N.C. 328, 380, 611 S.E.2d 794, 831 (2005) (internal quotation marks omitted). "Such instruction is generally given during the final mandate after the trial court has instructed the jury as to elements it must find to reach a guilty verdict." Id. "Our Supreme Court has held that the failure of the trial court to provide the option of acquittal or not guilty in its charge to the jury can constitute reversible error." McHone, 174 N.C.App. at 295, 620 S.E.2d at 907. Nonetheless, it has long been recognized that "the trial court's charge to the jury must be construed contextually and isolated portions of it will not be held prejudicial error when the charge as a whole is correct." Id. at 294, 620 S.E.2d at 907 (internal quotation marks omitted).
In the present case, the parties agreed that the trial court would charge the jury in accordance with the North Carolina Pattern Jury Instructions. For the offense of robbery with a firearm, Pattern Jury Instruction 217.20 provides as follows:
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...does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime." State v. Calderon , 242 N.C. App. 125, 135, 774 S.E.2d 398, 407 (2015) (citations and internal quotations omitted). ¶ 28 Under this theory, two or more persons, who joined together in ......