An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1174
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 17 June 2014


STATE OF NORTH CAROLINA

      v.                                      Wake County
                                              Nos. 10 CRS 222323-24
ATOM CHRISTOPHER GRAVES                            12 CRS 5928-29



      Appeal by defendant from judgments entered 24 April 2013 by

Judge G. Wayne Abernathy in Wake County Superior Court.                       Heard

in the Court of Appeals 26 May 2014.


      Attorney General Roy Cooper, by Special                   Deputy    Attorney
      General R. Marcus Lodge, for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defender Emily H. Davis, for defendant-appellant.


      HUNTER, Robert C., Judge.


      On 24 April 2013, a jury found defendant Atom Christopher

Graves guilty of robbery with a dangerous weapon, conspiracy to

commit robbery with a dangerous weapon, two counts of attempt to

obtain property by false pretenses, and possession of a firearm

by a felon.     Defendant appeals.
                                            -2-

      Counsel appointed to represent defendant on appeal has been

unable to identify any issue with sufficient merit to support a

meaningful argument for relief on appeal and asks that this

Court   conduct      its    own       review      of    the     record    for    possible

prejudicial error.          Counsel has shown to the satisfaction of

this Court that she has complied with the requirements of Anders

v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967), and State

v.   Kinch,    314   N.C.       99,   331   S.E.2d       665    (1985),    by    advising

defendant of his right to file written arguments with this Court

and providing him with the documents necessary for him to do so.

      On 16 May 2014, defendant filed a pro se brief in which he

presents four arguments.              First, defendant argues that the trial

court erred by overruling his objection to joinder and denying

his motion to sever the possession of a firearm by a convicted

felon   charge.       Defendant         contends        that    the   joinder     of   the

robbery and possession of a firearm by a felon charges denied

him a fair trial, because it required him to choose whether to

testify that the firearm was inoperable, thereby admitting to

the possession of a firearm by a felon charge, or to refuse to

testify, thereby limiting his ability to present a defense to

the robbery charge.         We do not agree.

      The     decision     of    whether       to      permit    joinder    of    charges

pursuant to N.C. Gen. Stat. § 15A-926 (2013) is left to the
                                               -3-

trial court’s discretion.                   State v. Perry, 142 N.C. App. 177,

181,       541    S.E.2d      746,    749    (2001).           Contrary    to    defendant’s

argument,         we   have    previously         held    that    a   trial      court    acted

within      its    discretion        when    it    permitted       joinder       of   offenses

under similar circumstances, where, as in this case, the charges

arose from the same transaction.                         See State v. Cromartie, 177

N.C. App. 73, 78, 627 S.E.2d 677, 681, disc. review denied, 360

N.C.       539,   634   S.E.2d       534    (2006).         In    addition,      the     record

reflects that multiple firearms were used during the robbery.

As    in    Cromartie,        defendant       cannot      show    that    joinder        of   the

charges       “unjustly        or    prejudicially”         hindered      his    ability       to

present a defense.              Id. (quoting State v. Floyd, 148 N.C. App.

290, 293, 558 S.E.2d 237, 239 (2002)).

       Next, relying upon State v. Campbell, 296 N.C. 394, 399,

250 S.E.2d 228, 230 (1979), defendant argues that the trial

court erred by admitting evidence that one of his codefendants

pled guilty based on charges arising from the same incident.

Defendant, however, misreads Campbell as a blanket bar to the

admission         of    evidence       of     a    codefendant’s          plea    agreement.

Instead, Campbell holds that evidence of a plea agreement “by

one defendant is [not] competent as evidence of the guilt of a

codefendant on the same charges.”                        Id. (emphasis added).            Here,

the    State      introduced         the    evidence      of    the   codefendant’s           plea
                                        -4-

agreement not as evidence of defendant’s guilt, but to limit the

impact    of    cross-examination      of   the   codefendant     regarding     his

potential bias arising from his               own plea agreement with the

State.       We   also   note   that   defendant    did    not   object    to   the

admission of evidence of the plea agreement at trial, and in

fact extensively cross-examined the codefendant about his plea.

Accordingly, we hold this argument also lacks merit.

       In his third argument, defendant asserts that the trial

court erred by denying his motion to dismiss the robbery charge.

Defendant’s claim is based on the assertion that the store clerk

named in the indictment apparently worked under a fictitious

name   and     thus   was    not   a   witness    for   the   State   at    trial.

Defendant argues that in the absence of a testifying victim-

witness    or     compelling    forensic      evidence,    the   State    entirely

relied on the testimony of his codefendant to obtain the robbery

conviction, and this evidence was insufficient to withstand his

motion to dismiss.          We do not agree.

       “When a defendant moves to dismiss a charge against him on

the ground of insufficiency of the evidence, the trial court

must determine ‘whether there is substantial evidence of each

essential element of the offense charged and of the defendant

being the perpetrator of the offense.’”                   State v. Garcia, 358

N.C. 382, 412, 597 S.E.2d 724, 746 (2004) (citation omitted),
                                              -5-

cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005).                                  “In

reviewing     challenges          to    the     sufficiency        of    evidence,     [the

appellate    court]    must        view       the   evidence       in    the   light   most

favorable to the State, giving the State the benefit of all

reasonable inferences.”                State v. Scott, 356 N.C. 591, 596, 573

S.E.2d 866, 869 (2002) (citation omitted).                          “‘If the evidence

. . . gives rise to a reasonable inference of guilt, it is for

. . . the jury to decide whether the facts shown satisfy them

beyond a reasonable doubt of defendant’s guilt.’”                                State v.

Bush,   78   N.C.     App.    686,        688,      338    S.E.2d       590,   591   (1986)

(citation omitted).

      Here, as defendant concedes, his codefendant testified that

defendant took part in the robbery.                        Defendant argues that his

codefendant’s testimony was not sufficiently credible to carry

the   robbery   charge       to    the    jury.           Viewed   in    the   light   most

favorable to the State, however, the codefendant’s testimony was

sufficient.     The codefendant was an eyewitness to defendant’s

participation in the robbery, and his testimony was corroborated

by video evidence.           See State v. Jackson, 215 N.C. App. 339,

346, 716 S.E.2d 61, 67 (2011) (holding that credibility of a

witness is a jury issue).                  Further, the State also presented

evidence that defendant attempted to redeem lottery tickets that

were proceeds of the robbery, another circumstantial link in the
                                              -6-

State’s     case.       Accordingly,          we    hold       that    this    argument       is

without merit.

      Finally, defendant argues the trial court erred by failing

to instruct the jury concerning the issue of his guilt of the

lesser-included         offense      of    common        law   robbery.           Defendant’s

argument    is    based    on    his      contention        that      the   State,     in   the

absence      of     testimony          from        the      victim-witness,           offered

inconclusive evidence that the weapon used in the robbery was a

dangerous weapon as a matter of law.                      We disagree.

      Common law robbery is a lesser-included offense of armed

robbery,     so    an   indictment         for      armed      robbery      can     support    a

conviction        for    either      offense.               Common      law       robbery     is

distinguished from armed robbery by the absence of the use or

threatened use of a dangerous weapon.                          State v. Smallwood, 78

N.C. App. 365, 367, 337 S.E.2d 143, 144 (1985).                             Thus, “the gist

of the offense [of armed robbery] is not the taking of personal

property, but a taking or attempted taking by force or putting

in   fear   by    the   use     of   firearms        or     other     dangerous      weapon.”

State v. Harris, 8 N.C. App. 653, 656, 175 S.E.2d 334, 336

(1970).

      We have previously held:

             It is well-settled that “the trial                             court
             must submit and instruct the jury                              on a
             lesser included offense when, and only                         when,
             there is evidence from which the jury                          could
                                      -7-

           find that defendant committed the lesser
           included offense.”     But when the State’s
           evidence is positive as to each element of
           the   crime   charged   and   there  is   no
           conflicting   evidence    relating  to   any
           element, the submission of a lesser included
           offense is not required.

State v. Harris, ___ N.C. App. ___, ___, 730 S.E.2d 834, 839

(citations     omitted),   disc.    review       denied,     366    N.C.    413,   736

S.E.2d   715    (2012),    cert.    denied   sub     nom     Whitaker       v.   North

Carolina, ___ U.S. ___, 185 L. Ed. 2d 876 (2013).

    If a defendant fails to request instructions on a lesser-

included offense, this Court reviews the trial court’s omission

of the instruction for plain error.               State v. Robledo, 193 N.C.

App. 521, 530, 668 S.E.2d 91, 97 (2008).                “A plain error is one

‘so fundamental as to amount to a miscarriage of justice or

which probably resulted in the jury reaching a different verdict

than it otherwise would have reached.’”                 State v. Carroll, 356

N.C. 526, 539, 573 S.E.2d 899, 908 (2002) (citation omitted),

cert. denied sub nom Carroll v. North Carolina, 539 U.S. 949,

156 L. Ed. 2d 640 (2003).

    In this case, defendant did not request an instruction on

common law robbery and did not object to the charge as given.

Therefore,     we   must   review    defendant’s        contention         for   plain

error.     Here, the State presented both video and testimonial

evidence   that     defendant   employed     a    gun   in    the    robbery.       In
                                             -8-

addition, the record reflects that multiple firearms were used

during the robbery and that the trial court instructed the jury

concerning      the   acting       in    concert     doctrine.            This      evidence

supported      an   instruction         on   armed   robbery       and    armed     robbery

only.      Defendant       bases    his      argument       on   one     response      to   a

question    posed     on   cross-examination           to    his    codefendant.            In

response to that question, the codefendant admitted that at a

trial for another codefendant, he testified that the gun did not

work.    The codefendant did not repeat that claim about the gun

during   his    testimony      at   this      trial,    however,         and   we    do   not

believe that, even if he had done so, such testimony would have

supported a common law robbery instruction given that multiple

firearms were used during the robbery.                      Thus, defendant cannot

satisfy the high standard required to demonstrate plain error.

    In addition to reviewing defendant’s pro se argument, in

accordance with Anders, we have fully examined the record to

determine whether any issues of arguable merit appear therefrom.

We have been unable to find any possible prejudicial error and

conclude that the appeal is wholly frivolous.



    NO ERROR.

    Judges STEPHENS and ERVIN concur.

    Report per Rule 30(e).
-9-
