An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1315
                        NORTH CAROLINA COURT OF APPEALS

                                Filed: 1 July 2014


STATE OF NORTH CAROLINA

      v.                                      Buncombe County
                                              No. 11 CRS 63843
ROBERT LEE HIGGINS, JR.



      Appeal by Defendant from judgment entered 22 May 2013 by

Judge Mark E. Powell in Buncombe County Superior Court.                          Heard

in the Court of Appeals 23 June 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      John P. Barkley, for the State.

      Charlotte Gail Blake for Defendant.


      STEPHENS, Judge.


      Defendant      Robert     Lee    Higgins,     Jr.,      appeals     from     the

judgment      entered    upon    his    conviction      for     robbery     with     a

dangerous weapon.       We find no error.

      The evidence at trial tended to show the following:                        On 28

September 2011, two men robbed Joshua Miller at gunpoint in his

home.      Miller was home alone that night using his computer, when
                                          -2-
he heard a car drive up and noticed a light outside.                      Miller

went outside and saw Defendant standing in front of an SUV.

Defendant      asked    Miller    about   buying   marijuana.        Miller    told

Defendant that he did not sell marijuana and that Defendant must

want to see his roommate, Roman Koptyukh, who was not home.

Koptyukh sold drugs from the house, but Miller did not.                          As

Miller was explaining Koptyukh’s whereabouts, a passenger exited

the SUV and cocked a gun.             Miller noticed that Defendant also

had a gun.

    The two men led Miller into the house and asked where they

could   find    drugs    and     money.     The   men   threatened    Miller   and

ransacked the house.           Defendant held Miller at gunpoint and had

him put items of value, such as a computer and digital cameras,

in a bag.       Some of the items belonged to Koptyukh, but the men

also took an external hard drive, a USB drive, a cell phone, and

some cash, all of which belonged to Miller.                The men asked for a

stuffed bear that Koptyukh used to conceal drugs.                    Miller gave

the bear to Defendant.             After the men left, Miller ran to a

neighbor’s house and called 911.

    A jury found Defendant guilty of robbery with a dangerous

weapon, and the trial court imposed a sentence of 72 to 96

months imprisonment.        Defendant timely entered notice of appeal.
                               -3-
    In Defendant’s sole argument on appeal, he contends that

the trial court erred by denying his request to add clarifying

language to the jury instructions.    Defendant’s request was as

follows:

           . . . [S]omehow I would like the instruction
           to make clear — what I’m concerned about,
           Your Honor, is that the jury may decide
           something was stolen, drugs or money, but
           the indictment — you know, my client is
           charged with stealing four very particular
           things, and some way to make sure that the
           jury is charged with and is unanimous in
           convicting him of stealing a USB drive, a
           cell phone, a hard drive, and I guess $40 in
           currency.

           I think in adding those things up, it comes
           to $590. I don’t know how it comes to that
           figure, but that’s what the indictment
           charges, and I want to make sure that the
           instruction and the jury sheet reflects that
           that’s what they’ve charged, defining the
           robbery, because I think in this case in
           particular, there’s some possibility the
           jury may decide what really got stolen was a
           stuffed animal full of drugs, which he is
           not charged with stealing.

The court denied Defendant’s request.      Defendant argues that

without the clarifying instruction, the jury might have found

him guilty because they believed he took the drugs but not the

items alleged in the indictment.     Therefore, Defendant argues,

the denial of his request violated his right to a unanimous

verdict.   We disagree.
                                       -4-
      “The     law    clearly     provides     that        where    a     specifically

requested      jury   instruction     is     proper    and     supported         by    the

evidence, the trial court must give the instruction, at least in

substance.”      State v. Jones, 337 N.C. 198, 206, 446 S.E.2d 32,

36    (1994)    (citation    and    internal     quotation         marks     omitted).

Nevertheless, our General Statutes provide that “[a]t the close

of the evidence or at an earlier time directed by the judge, any

party may tender written instructions.”                    N.C. Gen. Stat. § 15A-

1231(a) (2013).       Our Supreme Court has held that “such requested

special instructions should be submitted in writing to the trial

judge at or before the jury instruction conference.”                         State v.

Augustine,      359   N.C.   709,    729,     616     S.E.2d       515,    530    (2005)

(citation and internal quotation marks omitted), cert. denied,

548 U.S. 925, 165 L. Ed. 2d 988 (2006).                        “Where a requested

instruction is not submitted in writing[,] . . . it is within

the   discretion      of   the   [trial]    court     to    give    or    refuse      such

instruction.” State v. Mewborn, 178 N.C.                     App. 281, 292, 631

S.E.2d 224, 231 (citation and internal quotation marks omitted),

appeal dismissed and disc. review denied, 360 N.C. 652, 637

S.E.2d 187 (2006).         A matter left to the discretion of the trial

court “will not be disturbed unless it is manifestly unsupported

by reason, or so arbitrary that it could not have been the
                                  -5-
result of a reasoned decision.          A trial judge’s decision only

amounts to an abuse of discretion if there is no rational basis

for it.”    State v. Mutakbbic, 317 N.C. 264, 273-74, 345 S.E.2d

154,   158-59   (1986)   (citations    and   internal   quotation   marks

omitted).

       After reviewing the record, we find no abuse of discretion

by the trial court.        To begin,     we observe that, beyond his

failure to submit a written instruction, Defendant failed to

articulate an actual instruction for the trial court to give.

“The judge is not required to compose the words of a request for

a special instruction.”     State v. Wester, 71 N.C. App. 321, 329,

322 S.E.2d 421, 425 (1984).       Further, we note that the trial

court read the pattern instruction on robbery with a firearm,

and Miller’s testimony plainly described the items taken from

him, which are the same four items alleged in the indictment.

In sum, we cannot say that the court’s decision was manifestly

without reason.    Accordingly, we find

       NO ERROR.

       Judges HUNTER, ROBERT C., and ERVIN concur.

       Report per Rule 30(e).
