State v. McLymore, COA20-555

Docket NºNo. COA20-555
Citation863 S.E.2d 807, 279 N.C.App. 34
Case DateAugust 17, 2021
CourtCourt of Appeal of North Carolina (US)

279 N.C.App. 34
863 S.E.2d 807

STATE of North Carolina
v.
Demery Bernard MCLYMORE

No. COA20-555

Court of Appeals of North Carolina.

Filed August 17, 2021


Attorney General Joshua H. Stein, by Assistant Attorney General Matthew Baptiste Holloway, for the State-Appellee.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Aaron Thomas Johnson, for Defendant-Appellant.

COLLINS, Judge.

¶ 1 Defendant Demery Bernard McLymore appeals from judgment entered upon a jury verdict of guilty of one count of robbery with a dangerous weapon. Defendant argues that the trial court plainly erred by failing to designate in the robbery with a firearm1 jury instruction the two individuals named in the indictment as the alleged victims, allowing the jury to convict Defendant of an offense unsupported by the indictment. We discern no error and accordingly, no plain error.

I. Factual and Procedural Background

¶ 2 On 13 March 2017, Defendant was indicted for robbery with a dangerous weapon; the indictment named Elijah Bryant and Shalik Generette as the victims.2 After a jury trial, the jury returned its verdict on 23 October 2019, finding Defendant guilty of robbery with a dangerous weapon. That same day, the trial court entered judgment on the verdict and sentenced Defendant to 128-166 months in prison. Defendant gave proper oral notice of appeal in open court.

¶ 3 The evidence presented a trial tended to show the following: On 3 September 2016, around 7:00 PM, Yvette Spinks was walking towards the Sampson Homes housing complex in Clinton, North Carolina. Defendant approached Yvette, pulled out a handgun and waved it towards her, and said, "give me what you've got." Yvette did not have anything on her, and Defendant did not take anything from her.

¶ 4 Later that evening, at approximately 9:00 PM, Tevin Bryant and Desean McLean stopped at a convenience store in Clinton. Tevin remained in the truck and Desean went inside the store. Defendant approached the truck and asked Tevin for a ride to his girlfriend's residence in the Sampson Homes housing complex. Desean returned to the truck and agreed to give Defendant a ride. Defendant got into the back seat where Desean had a loaded shotgun.

863 S.E.2d 809

¶ 5 Upon arriving at Sampson Homes, Defendant got out of the truck but claimed that he had lost his pistol somewhere inside the truck. As Tevin and Desean helped Defendant look for his pistol, Defendant grabbed Desean's shotgun from the back seat. Defendant threatened to kill Desean unless Tevin followed him, and Defendant told Tevin to "[s]hut up for I kill you."

¶ 6 Defendant forced Tevin to walk with him. When they approached two boys, Elijah Bryant and Shalik Generette, Defendant stated, "Y'all going to need to stop walking or we going to blow your back out." Defendant told Tevin to search Elijah and Shalik, and stated that he would kill Tevin and the boys if they did not obey. Defendant and Tevin searched the boys’ pockets and wrists, and Defendant took approximately $40.00 and a pocketknife from Elijah. After taking the money and knife from Elijah, Defendant and Tevin ran away; the boys ran to a relative's home to call the police.

¶ 7 That same evening, around 11:00 PM, Sergeant Matthew Bland of the Clinton Police Department arrived at Sampson Homes "in reference to a female being assaulted at that time." Bland discovered that the incident involved Yvette and he "made contact with [Yvette] to find out what had occurred." Bland then saw a man walking away from him at a quick pace while "carrying what appeared to be a shotgun[.]"

¶ 8 Bland's search for the man carrying the shotgun led him to a nearby residence, which he obtained permission to search. Bland found Defendant in one of the bedrooms. When Bland searched Defendant, he found a little more than $32, a pocketknife, a red and gold shotgun shell, a watch, and unspent bullets which could be used in a handgun. A short time later, Bland recovered a pump shotgun from the residence's backyard. Defendant was arrested and taken into custody. A few hours later, in the early morning hours of 4 September 2016, Bland interviewed Elijah and Shalik. Both boys provided descriptions of the man who had held them at gunpoint. Both descriptions matched Defendant.

II. Discussion

A. Standard of Review

¶ 9 As a threshold matter, the State argues that Defendant waived his right to all appellate review of the jury instruction because Defendant "did not object at trial to the armed robbery instruction despite at least three opportunities to do so," "consented to the form of the instruction," and "invited the error he complains of[.]" This argument has been rejected by our appellate courts under similar factual circumstances.

¶ 10 In State v. Harding , 258 N.C. App. 306, 813 S.E.2d 254 (2018), "[t]he State argue[d] that defendant [wa]s precluded from plain error review in part under the invited-error doctrine because he failed to object, actively participated in crafting the challenged instruction, and affirmed it was ‘fine.’ " Id. at 311, 813 S.E.2d at 259. Concluding that defendant's argument was reviewable for plain error, this Court explained:

Even where the "trial court gave [a] defendant numerous opportunities to object to the jury instructions outside the presence of the jury, and each time [the] defendant indicated his satisfaction with the trial court's instructions," our Supreme Court has not found the defendant invited his alleged instructional error but applied plain error review.

Id. (citing State v. Hooks , 353 N.C. 629, 633, 548 S.E.2d 501, 505 (2001) (alterations in original)).

¶ 11 Similarly, in State v. Hardy , 353 N.C. 122, 540 S.E.2d 334 (2000), our North Carolina Supreme Court explained that the defendant

had ample opportunity to object to the instruction outside the presence of the jury. After excusing the jury to the deliberation room, the trial court asked, "Prior to sending back the verdict sheets does the
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