An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-139
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 7 October 2014


STATE OF NORTH CAROLINA

      v.                                         Wake County
                                                 No. 12 CRS 223968
GERALD ALONSO MORE



      Appeal by Defendant from judgment entered 6 November 2013

by Judge Paul G. Gessner in Superior Court, Wake County.                      Heard

in the Court of Appeals 12 August 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Scott K. Beaver, for the State.

      Appellate Defender Staples S. Hughes, by Andrew DeSimone,
for   Defendant.


      McGEE, Chief Judge.


      Gerald Alonso More (“Defendant”) appeals his conviction of

robbery    with    a   dangerous       weapon,    contending    that   the    trial

court’s    partial     denial     of     his     requested   jury    instructions

amounts to reversible error.            We disagree.

                                I.      Background
                                        -2-

    Defendant entered a Kroger’s grocery store in Raleigh on 21

October 2012.     He proceeded to a check-out line, and when the

cashier,    Matthew    Wells    (“Mr.    Wells”),      opened   the   register,

Defendant   reached    across    Mr.    Well’s    check-out     conveyor   belt.

Defendant held in his right hand what appeared to be a butcher

knife, and he removed money from the register with his left

hand. Defendant’s actions were recorded on the store’s security

camera, and Defendant conceded at trial that he had committed

common law robbery.       At issue for the trial court was whether

Defendant’s actions amounted to robbery with a dangerous weapon.

Specifically, Defendant asserted that the knife was in fact a

plastic toy and not a real knife.                 An actual knife, toy or

otherwise, was never recovered by the police.

    Defendant was indicted on 7 January 2013 for robbery with a

dangerous    weapon.      During   the        charge   conference,    Defendant

requested in writing that the trial court instruct the jury on

the charge of robbery with a dangerous weapon using language

mirroring the North Carolina Pattern Jury Instructions, as set

out below. Defendant also requested language not found in the

Pattern Jury instructions, as set out below in bold type:

            Sixth, that the defendant had a dangerous
            weapon in his possession at the time he
            obtained the [money] (or that it reasonably
            appeared to [Mr. Wells] that a dangerous
            weapon was being used, in which case you may
                                     -3-

            infer that the instrument was what the
            Defendant’s conduct represented it to be,
            BUT ARE NOT REQUIRED TO DO SO)[.]          A
            dangerous weapon is a weapon which is likely
            to cause death or serious bodily injury.

            And Seventh, that the [D]efendant obtained
            the [money] by endangering or threatening
            the life of Mr. Wells with the dangerous
            weapon.    In deciding whether or not Mr.
            Well’s life was endangered or threatened,
            you may consider the manner in which the
            weapon was used.

(emphasis added).     The actual instructions on elements six and

seven of robbery with a dangerous weapon given to the jury were

essentially identical to those requested by Defendant, except

for the bolded language therein, which the trial court declined

to include in its charge to the jury.           A jury subsequently found

Defendant   guilty   of    robbery   with   a    dangerous   weapon   on   6

November 2013.    Defendant gave notice of appeal in open court.

On appeal, Defendant contends that the trial court’s partial

denial of his requested jury instructions was in error.

                              II.    Analysis

                          A. Standard of Review

    This Court reviews assignments of error challenging a trial

court's decisions regarding jury instructions de novo.           State v.

Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009).

              B. Element Six of the Jury Instructions
                                             -4-

       Defendant assigns error to the trial court’s partial denial

of his requested jury instruction for element six of robbery

with   a    dangerous      weapon.       On    this       element,      the    trial    court

instructed the jury to determine whether

                Defendant had a dangerous weapon in his
                possession at the time he obtained the
                [money], or that it reasonably appeared to
                [Mr. Wells] that a dangerous weapon was
                being used, in which case [the jury] may
                infer that the said instrument was what the
                Defendant’s conduct represented it to be. A
                dangerous weapon is a weapon which is likely
                to cause death or serious bodily injury.

(emphasis added).           However, in addition to the instruction that

the jury “may infer” that Defendant had a dangerous weapon,

Defendant also requested an instruction stating that it was “not

required to do so.”            The trial court denied Defendant’s request.

Defendant       contends       that   omitting        this       additional      permissive

language in element six amounts to reversible error because the

sole use of “may” in the                jury       instruction purportedly              could

connote     a    mandatory,      rather      than     permissive,         inference      that

Defendant used a dangerous weapon during the robbery.

       In   State    v.     Wilburn,    this       Court     was    presented         with   an

identical        argument      from    the    defendant,           also    appealing         his

conviction of robbery with a dangerous weapon.                                 Wilburn, 164

N.C.    App.      601,    596    S.E.2d       473,        slip    op.     at    6-8    (2004)

(unpublished).            In    Wilburn,      on     an    appeal       challenging      jury
                                         -5-

instructions that were essentially identical to those given in

the case sub judice, this Court held that “[t]he [trial] court's

use of permissive language -- i.e., the jury ‘may infer’ that

the object was a firearm -- properly denoted that the jury was

permitted,    but    not     required,      to      find    defendant     possessed     a

[dangerous weapon] . . . during the robbery.”                     Id. at 7–8.

    On this issue, the present case is not distinguishable from

Wilburn.     When Defendant robbed the Kroger,                      he wielded what

reasonably    could       have   appeared      to    Mr.    Wells   to    be    a    large

butcher’s knife.           Defendant held it near Mr. Wells while he

removed money from Mr. Well’s register, aiding his carrying out

of the robbery. As such, just as in Wilburn, this allowed the

jury to make the permissible inference that this knife was, in

fact, a real and dangerous weapon.                    See id.       The trial court

instructed the jury that it “may infer that the [knife] was what

the Defendant’s conduct represented it to be,” and it appears

that the jury did just that.                “We find no error or prejudice

here.”    Id. at 8.

              C. Element Seven of the Jury Instructions

    Defendant next contends that the trial court erred in its

partial    denial    of     Defendant’s     requested        jury   instruction        for

element    seven    of    robbery    with    a   dangerous       weapon.        On    this

element,    the     trial    court    instructed           the   jury    to    determine
                                      -6-

whether    “Defendant      obtained   the   [money]   by        endangering   or

threatening the life of [Mr. Wells] with the dangerous weapon.”

However, during the charge conference, Defendant requested that

this instruction end with the following: “In deciding whether or

not Mr. Well’s life was endangered or threatened, [the jury] may

consider the manner in which the weapon was used.”                   The trial

court also denied this request from Defendant, which Defendant

contends amounts to reversible error.

      The additional language requested by Defendant for element

seven focused on the knife’s manner of use to inform whether Mr.

Well’s life was threatened or endangered.             On its face, this

language      is   mere    surplusage.      The   previous        sentence    in

Defendant’s requested jury instruction on element seven, which

also was stated to the jury at trial, instructed the jury to

determine whether         Defendant “endanger[ed] or threaten[ed] the

life of Mr. Wells with the dangerous weapon.”               This instruction

necessarily directed the jury to consider the manner in which

the weapon was used.

      However, the question Defendant presents to this Court is

whether “the trial court erred by denying [Defendant’s] request

to instruct the jury that[,] in determining whether the knife

was a dangerous weapon[,] it could consider the manner in which

the   knife    was   used.”    (emphasis    added).        In     other   words,
                                              -7-

Defendant presents us with an appeal that purportedly arises

from the denial of his requested jury instruction on element

seven    of   robbery        with    a     dangerous   weapon.      Yet   Defendant’s

argument on this point is entirely within the bounds of element

six    of   the   same       charge,       which    instructed    the   jury    to   find

whether Defendant, in fact, used a dangerous weapon during the

robbery.      Even Defendant’s trial counsel acknowledged that the

question of whether or not the knife was a dangerous weapon

would be more appropriately addressed in element six of the jury

instructions.

       As such, while Defendant’s appeal is proper, the argument

he    presents    to    us    has    not     been    properly    raised   before     this

Court, and his argument could only be reviewed for plain error.

See N.C.R. App. P. 10(a)(2) (“A party may not make any portion

of the jury charge or omission therefrom the basis of an issue

presented on appeal unless the party objects thereto before the

jury retires[.]”).             However, Defendant does not allege plain

error in his brief.             “Where a defendant fails specifically and

distinctly to allege plain error, the defendant waives his right

to have the issues reviewed for plain error.”                      State v. Ferebee,

177 N.C. App. 785, 789, 630 S.E.2d 460, 463 (2006) (citing State

v.    Forrest,    164    N.C.       App.    272,    277,   596   S.E.2d   22,   25–26).
                               -8-

Therefore, Defendant has provided this Court with no grounds on

which to review this argument further.

    No error.

    Judges BRYANT and STROUD concur.

    Report per Rule 30(e).
