                                      NO. COA13-1353

                           NORTH CAROLINA COURT OF APPEALS

                                Filed:      7 October 2014


STATE OF NORTH CAROLINA

       v.                                         Columbus    County
                                                  Nos. 07     CRS 53533
                                                        08    CRS 81-85
                                                        08    CRS 91-93
SANTONIO THURMAN JENRETTE



       Appeal by defendant from judgments entered 3 July 2013 by

Judge   Douglas       B.     Sasser    in     Columbus   County     Superior   Court.

Heard in the Court of Appeals 9 April 2014.


       Roy Cooper, Attorney General, by Marc X. Sneed, Assistant
       Attorney General, for the State.

       Marilyn G. Ozer for defendant-appellant.


       DAVIS, Judge.


       Santonio Thurman Jenrette (“Defendant”) appeals from his

convictions      of    two    counts     of    first-degree    murder,     possession

with    intent    to    sell    and/or        deliver    cocaine,    two   counts   of

possession of a firearm by a felon, two counts of assault with a

deadly weapon with intent to kill inflicting serious injury, and

two counts of conspiracy to commit first-degree murder.                             On

appeal, he contends that the trial court erred in (1) granting
                                                 -2-


the State’s motion to join all of the charges against him for

trial; (2) failing to provide an adequate not guilty mandate at

the conclusion of its jury instructions as to one of the first-

degree murder charges; (3) instructing the jury on a charge of

first-degree murder based on the lying in wait doctrine; (4)

failing to adequately distinguish between the separate offenses

with which Defendant was charged in its jury instructions; and

(5) instructing the jury on a charge of first-degree murder

based on the felony murder doctrine where there was insufficient

evidence of the predicate felonies.                            After careful review, we

conclude     that          Defendant         received     a     fair     trial    free     from

prejudicial error.

                                       Factual Background

      The State presented evidence at trial tending to establish

the following facts:               On 21 September 2007, a confrontation took

place     between      Connail          Reaves      (“Reaves”)     and       Eugene   Williams

(“Williams”) at a high school football game in Columbus County,

North Carolina between East Columbus High School and Whiteville

High School.           Williams and Reaves were members of two rival

gangs with a history of animosity toward each other.                                  Williams

was   a    member      of        the    “Chadbourne       Boys”       and    Reaves    —   like

Defendant       —    was     a    member       of   the   “Whiteville         Circle     Boys.”

Members    of       both    groups,          including    Reaves       and    Williams,    were

prepared     to      fight        as     a     result     of    the     confrontation       but
                                         -3-


ultimately backed down due to the presence of law enforcement

officers at the game.

    After the game, several members of the Chadbourne Boys,

including Williams, Darnell Frink                (“Frink”), Travis Williams,

Jason Williams, and William Inman (“Inman”), went to the stadium

parking   lot    where    they    ran    into    Reaves   again.     Reaves   was

talking on his cellphone, and when he saw them, he pointed his

finger at them as if he was pulling the trigger of a gun.

Without engaging Reaves, they got into Jason Williams’ Chevrolet

Tahoe and drove to a local gas station, Sam’s Pitt Stop.

    At Sam’s Pitt Stop, Williams, Frink, Travis Williams, Jason

Williams, and Inman parked in front of a gas pump and were

standing around the Tahoe when Jason Williams and Inman noticed

a Ford Taurus pulling up toward them with the windows down.

Jason Williams saw gun barrels protruding from both the front

passenger   window       and   the    rear     passenger-side   window   of   the

Taurus.     He    yelled       “get     down”    and   immediately   thereafter

occupants of the Taurus — all of whom were wearing ski masks —

opened fire on them.             Defendant, Reaves, and Defendant’s 14-

year-old cousin Rashed1 Delamez Jones (“Jones”) were three of the

occupants of the Taurus who fired guns.




1
  The trial transcript at times spells Rashed as “Rasheed.” Both
spellings, however, refer to the same person.
                                          -4-


       Inman and Frink were both struck by bullets fired by the

masked persons in the Taurus.                 Frink died as a result of his

gunshot wounds.          Inman was wounded in his left thigh and was

taken    to    the   hospital     for    treatment.         A   bystander,       Antwan

Waddell, was struck by bullets in his left thigh and ankle.

       Shortly after the shooting, Sabrina Moody (“Moody”) saw a

Taurus    containing      Defendant,      Marquell    Hunter,         and   an   unknown

person pull into Stanley Circle directly in front of her parked

car.     Moody saw Defendant and the other two men get out of their

vehicle,      remove    guns    from    the   back   of   the    Taurus,     and    then

quickly run across the street in order to place the guns inside

another vehicle.

       The Taurus was found burning in a field off of Prison Camp

Road later that night.            It was ultimately identified as a car

belonging to Johnny Sellers (“Sellers”), a used car salesman,

that    had   been     stolen    along    with   Sellers’       .25    caliber     semi-

automatic pistol         from the dealership          lot the evening of the

shooting.

       The following evening, Defendant and Reaves were driving a

black    Acura    when    they    were    pulled     over   by    Officers        Donald

Edwards (“Officer Edwards”) and Edward Memory (“Officer Memory”)

of the Whiteville Police Department because the rear taillight

of the Acura was not working.                 Upon inspecting the backseat of

the vehicle where Reaves was sitting, Officer Edwards observed
                                        -5-


two pistols between Reaves’ legs.               Defendant and Reaves were

removed from the vehicle, and the firearms were seized.

       Officer Donnie Hedwin (“Officer Hedwin”) of the Whiteville

Police Department, who had arrived on the scene, patted down

Defendant, handcuffed him, and placed him in the backseat of

Officer Memory’s patrol car.             However, while the officers were

securing the scene, Defendant managed to force open the door of

Officer Memory’s car and escape unobserved.

       Upon searching the backseat of Officer Memory’s car after

Defendant had escaped, Officer Edwards discovered two baggies

containing    a    substance    that    was   later   identified    as   cocaine

wedged underneath the seat.            A .45 caliber pistol recovered from

the Acura was identified as the same weapon used in the shooting

at Sam’s Pitt Stop.

       On 19 November 2007, approximately two months after the

shooting, Defendant, who was still at large, took Jones out to

the woods in a car he had borrowed from a woman named Rebecca

White   on   the   pretext     of   getting   in   some   “target   practice.”

While in the woods, Defendant shot Jones five times, killing

him.    Defendant then left Jones’ body in the woods after wedging

it under several nearby wooden pallets.                The next day, Jones’

mother and aunt, who were searching for Jones, saw Defendant

walking along the side of the road.                When Jones’ mother asked

him whether he had seen Jones, Defendant “just kept walking, he
                                              -6-


wouldn’t look at [her].”                  On 5 December 2007, Jones’ body was

discovered in the woods off of Barney Tyler Road in Hallsboro,

North Carolina.

       Defendant fled to Gary, Indiana, where he was eventually

apprehended and extradited back to North Carolina.                                  Prior to

being    apprehended,               Defendant      filmed       a     video    of      himself

performing a piece of rap music that he had composed.                                       The

lyrics of the song mentioned both the location where Jones’ body

was found and the manner in which he had been killed.

       While      in        custody    pending        trial,    Defendant       told     Aaron

McDowell    (“McDowell”),              Defendant’s          cellmate    at    the     Columbus

County Jail, how and why he had killed Jones, explaining that he

had done so in order to prevent Jones from revealing Defendant’s

role in the 21 September 2007 shooting.                          He also told McDowell

he had taken Jones out to a secluded area in Hallsboro to shoot

him.

       Jeffrey Morton (“Morton”), another inmate in the Columbus

County   Jail      who       was     incarcerated      in     the   same     cell   block   as

Defendant, overheard Defendant talking to a third inmate, Rufus

McMillian,      about         the    murder   of      Jones.        Specifically,       Morton

heard Defendant state that he considered Jones to be “a weak

link,”     that        he     took    Jones     “to     a    wooded    area     for     target

practice[,]” and that he “basically . . . smoked a couple of

blunts with this young guy and took him out and gave him a
                                            -7-


pistol and they shot some and then he turned the pistol on him

and shot him five or six times.”

      Defendant was indicted on (1) two counts of possession of a

firearm by a felon; (2) the first-degree murder of Frink; (3)

two counts of assault with a deadly weapon with intent to kill

inflicting       serious     injury;       (4)    two    counts     of    conspiracy         to

commit    first-degree        murder;       (5)    the     first-degree            murder     of

Jones;   (6)     first-degree       kidnapping;         (7)    conspiracy          to   commit

first-degree kidnapping; (8) one count of possession with intent

to sell and/or deliver cocaine; and (9) possession of a stolen

firearm.       A jury trial was held in Columbus County Superior

Court on 24 June 2013.              At the close of all the evidence, the

trial    court    dismissed       the    charge     of    possession          of    a   stolen

firearm.

      Defendant was convicted of all remaining charges except for

the charges of first-degree kidnapping and conspiracy to commit

first-degree kidnapping.                With regard to the murder of Frink,

the   jury     found   him    guilty       on    theories     of    premeditation            and

deliberation,      felony        murder,    and    lying      in   wait.           As   to   the

murder    of    Jones,     the    jury     found    him    guilty        on   theories        of

premeditation and deliberation and felony murder.

      Defendant was sentenced to two consecutive life sentences

without the possibility of parole for the murders of Frink and

Jones.       In addition, he was sentenced to (1) 8-10 months for
                                        -8-


possession with intent to sell and/or deliver cocaine; (2) 15-18

months for each count of possession of a firearm by a felon; (3)

100-129 months for each count of assault with a deadly weapon

with intent to kill inflicting serious injury; and (4) 189-236

months for each count of conspiracy to commit murder.                       These

sentences were ordered to run concurrently with the sentence

imposed for the first-degree murder of Jones.                     Defendant gave

notice of appeal in open court.

                                   Analysis

I. Joinder

    Defendant argues that the trial court abused its discretion

in allowing all 12 of the offenses for which he was charged to

be joined for trial.          Specifically, he contends that joinder was

improper      due   to    the   lack     of   a    sufficient      transactional

similarity between the 12 charges.

    “The motion to join is within the sound discretion of the

trial judge, and the trial judge's ruling will not be disturbed

absent   an    abuse     of   discretion.         However,   if    there   is   no

transactional connection, then the consolidation is improper as

a matter of law.”        State v. Simmons, 167 N.C. App. 512, 516, 606

S.E.2d 133, 136 (2004) (internal citations and quotation marks

omitted), appeal dismissed and disc. review denied, 359 N.C.

325, 611 S.E.2d 844 (2005).            “On appeal, the question of whether

offenses are transactionally related so that they may be joined
                                          -9-


for trial is a fully reviewable question of law.”                            State v.

Huff,   325    N.C.   1,    22,   381     S.E.2d    635,    647   (1989)   (citation

omitted), vacated on other grounds, 497 U.S. 1021, 111 L.E.2d

777 (1990).

     We have held that

              in ruling upon a motion for joinder, a trial
              judge must utilize a two-step analysis: (1)
              a determination of whether the offenses have
              a transactional connection and (2) if there
              is a connection, a consideration of whether
              the accused can receive a fair hearing on
              the consolidated offenses at trial. . . . In
              determining whether offenses are part of the
              same series of transactions, the following
              factors must guide the court: (1) the nature
              of the offenses charged; (2) any commonality
              of facts between the offenses; (3) the lapse
              of time between the offenses; and (4) the
              unique circumstances of each case.        No
              single factor is dispositive.

Simmons, 167 N.C. App. at 516, 606 S.E.2d at 136-37 (internal

citations and quotation marks omitted).

     In the present case, while the charges against Defendant

stemmed from a series of events that occurred over the course of

approximately     two      months,    they   were     factually     related.      The

State’s   evidence      tended       to   show     that    Defendant   was    present

during, and participated in, the shooting at Sam’s Pitt Stop

along with Reaves and Jones.              The following night, Defendant and

Reaves were pulled over, and two firearms were recovered from

their possession, one of which was ultimately shown to have been

used in the shooting the previous evening.                    This evidence shows
                                      -10-


a direct link between the possession of a firearm by a felon

charges and the charges arising directly out of the shooting at

the gas station.        Furthermore, the discovery of the cocaine

forming the basis for the charge of possession with intent to

sell and/or deliver cocaine occurred during the course of the

traffic stop.

      The   charges   related    to    the    killing    of   Jones   were    also

transactionally related.         In State v. Hunt, 323 N.C. 407, 373

S.E.2d 400 (1988), vacated on other grounds, 494 U.S. 1022, 108

L.Ed.2d 602 (1990), our Supreme Court held that two murders are

transactionally related when the second is committed in order to

cover up the first.      “It is apparent that the second murder in

this case was an act connected to the first murder.                   The second

murder was committed to avoid detection for the first murder.

This transactional connection supports the consolidation of all

the charges for trial pursuant to N.C.G.S. § 15A-926(a).”                     Id.

at 421, 373 S.E.2d at 410.

      Similarly, the evidence in the present case tended to show

that Defendant killed Jones so as to avoid being implicated in

the   murder   of   Frink.      As    such,   we   are   satisfied     that   the

transactional connection between these events was sufficient to

support the trial court’s granting of the State’s motion for

joinder of all of these charges.               Furthermore, Defendant has

failed to offer any persuasive argument why the consolidation of
                                        -11-


these charges rendered him unable to receive a fair trial on all

of the charges against him.             See State v. Bowen, 139 N.C. App.

18,   29,   533      S.E.2d    248,   255   (2000)    (where        “[t]here    is    no

evidence defendant was hindered or deprived of his ability to

defend one or more of the charges [against him] . . . [t]he

trial   court's       error    in   joining    the    offenses       for    trial    was

harmless” (internal citation and quotation marks omitted)).

      Based    on     our   consideration      of    the    factors    set     out   in

Simmons, we conclude that the trial court did not abuse its

discretion      in       granting     the   State’s        motion     for    joinder.

Therefore, Defendant’s argument on this issue is overruled.

II. Not Guilty Mandate

      Defendant next contends that the trial court erred in its

instructions        to   the   jury    regarding     the     first-degree      murder

charge as to Frink by failing to adequately instruct the jury of

its duty to return a verdict of not guilty if the State failed

to establish his guilt beyond a reasonable doubt.                           Where, as

here, a defendant does “not object at trial to the omission of

the not guilty option from the trial court's final mandate to

the jury, we review the trial court's actions for plain error.”

State v. McHone, 174 N.C. App. 289, 294, 620 S.E.2d 903, 907

(2005), disc. review denied, 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.  To
                                      -12-


              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.
              Moreover, because plain error is to be
              applied   cautiously  and   only   in   the
              exceptional case, the error will often be
              one that seriously affects the fairness,
              integrity or public reputation of judicial
              proceedings.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(internal citations, quotation marks, and brackets omitted).

    Our Supreme Court has held that “[e]very 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) (citation

and quotation marks omitted); see also State v. McArthur, 186

N.C. App. 373, 380, 651 S.E.2d 256, 260 (2007).                   Furthermore,

“[i]t is well established 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.”       McHone, 174 N.C. App. at 294, 620 S.E.2d at 907

(citation and quotation marks omitted).

    In order to fully understand Defendant’s argument on this

issue,   it    is   necessary   to    quote   in   full   the    trial    court’s

instructions on first-degree murder with regard to the killing

of Frink:

              The   defendant   has    been   charged     with   the
                    -13-


first degree murder of Darnell Antonio
Frink.   Under the law and the evidence in
this case it is your duty to return a
verdict of either guilty of first degree
murder or not guilty.      You may find the
defendant guilty of first degree murder on
either the basis of malice, premeditation
and deliberation or under the first degree
felony murder rule, or on the basis of lying
in wait, or any combination of those three.

First degree murder on the basis of malice,
premeditation   and  deliberation   is   the
intentional and unlawful killing of a human
being with malice and with premeditation and
deliberation.

First degree murder under the first degree
felony murder rule is the killing of a human
being in the perpetration of an assault with
a   deadly  weapon   with  intent   to  kill
inflicting serious injury.

For you to find the defendant      guilty of
first degree murder on the basis   of malice,
premeditation and deliberation,    the State
must prove five things beyond a    reasonable
doubt.

First, that the defendant intentionally and
with malice killed the victim with a deadly
weapon.   Malice means not only hatred, ill
will or spite, as is ordinarily understood,
to be sure that is malice, but it also means
that condition of the mind that prompts a
person   to   take  the   life   of   another
intentionally or to intentionally inflict a
wound with a deadly weapon upon another
which proximately results in his death
without just cause, excuse or justification.

If the State proves beyond a reasonable
doubt   that  the   defendant  intentionally
killed the victim with a deadly weapon or
intentionally inflicted a wound upon the
victim with a deadly weapon that proximately
caused his death, you may infer, first, that
                    -14-


the killing was unlawful and, second, that
it was done with malice, but you are not
compelled to do so.    You may consider the
inference along with all of the facts and
circumstances in determining whether the
killing was unlawful and whether it was done
with malice. A firearm is a deadly weapon.

Second, the State must prove that the
defendant’s act was a proximate cause of the
victim’s death. A proximate cause is a real
cause, a cause without which the victim’s
death would not have occurred.

Third, that the defendant intended to kill
the victim.     Intent is a mental attitude
seldom provable by direct evidence, it must
be    ordinarily    be   (sic)   proved   by
circumstances from which it may be inferred.
An intent to kill may be inferred from the
nature of the assault, the manner in which
it was made, the conduct of the parties and
other relevant circumstances.

If the defendant intended to harm one person
but instead harmed a different person, the
legal effect would be the same as if the
defendant had harmed the intended victim.
If the killing of the intended person would
be with malice, then the killing of the
different person would also be with malice.

Fourth, that the defendant acted after
premeditation; that is, that he formed the
intent to kill the victim over some period
of time, however short, before he acted.

And, fifth, that the defendant acted with
deliberation, which means that he acted
while he was in a cool state of mind, which
does not mean there had to be a total
absence of passion or emotion.       If the
intent to kill was formed with a fixed
purpose, not under the influence of some
suddenly aroused violent passion, it is
immaterial that the defendant was in a state
of passion or excited when the intent was
                       -15-


carried into effect.

Neither premeditation nor deliberation is
usually susceptible of direct proof. It may
be proved by proof of circumstances from
which they may be inferred, such as lack of
provocation by the victim, conduct of the
defendant before, during and after the
killing, use of grossly excessive force,
brutal or vicious circumstances of the
killing or the manner in which or means by
which the killing was done.

I further charge you that for you to find
the defendant guilty of first degree murder
under the first degree felony murder rule,
the State must prove three things beyond a
reasonable doubt:

First, that the defendant committed the
offense of assault with a deadly weapon with
intent to kill inflicting serious injury.

I’ve read this before, but I’m going to go
back over it one more time, the elements for
assault with a deadly weapon with intent to
kill inflicting serious injury are:

First, that the defendant assaulted the
victim     by      intentionally,      without
justification   or   excuse,   discharging   a
firearm into a group of people.

Second, that the defendant used a       deadly
weapon; a firearm is a deadly weapon.

Third, the State must prove the defendant
had a specific intent to kill the victim. I
remind    you,  I’ve   already   given   the
instruction twice as to transferred intent,
again,   that  instruction  applies   as  to
intent.

And, fourth, that the defendant inflicted a
serious injury.

Second, that while committing assault with a
                         -16-


deadly weapon with intent to kill inflicting
serious injury, the defendant killed the
victim with a deadly weapon.

Third, that the defendant’s act was a
proximate cause of the victim’s death.   A
proximate cause is a real cause, a cause
without which the victim’s death would not
have occurred.

The defendant has also been accused of first
degree murder perpetrated while lying in
wait. For you to find the defendant guilty
of this offense, the State must prove three
things beyond a reasonable doubt:

First, that the defendant lay in wait for
the victim; that is, he waited and watched
for the victim in ambush for a private
attack on him. It is not necessary that he
be actually concealed in order to lie in
wait. If one places himself in a position to
make a private attack upon his victim and
assails him at the time the victim does not
know of the assassin’s presence, or if he
does know, is not aware of his purpose to
kill him, the killing constitutes a murder
perpetrated by lying in wait. One who lays
in wait does not lose his status because he
is not concealed at the time he shoots his
victim. The fact that he reveals himself or
the victim discovers his presence does not
permit the murder from being perpetrated by
lying in wait.   Indeed a person may lie in
wait in a crowd as well as being — excuse
me, as well as behind a log or a hedge.

Second, that the defendant            intentionally
assaulted the victim.

And, third, that the defendant’s act was a
proximate cause of the victim’s death.   A
proximate cause is a real cause, a cause
without which the victim’s death would not
have occurred.

If   you   find   from   the    evidence   beyond   a
                                  -17-


          reasonable doubt that on or about the
          alleged date the defendant assaulted the
          victim while lying in wait for him and that
          the defendant’s act proximately caused the
          victim’s death, it would be your duty to
          return a verdict of guilty of first degree
          murder.

          If you do not so find or have a reasonable
          doubt as to one or more of these things, it
          would be your duty to return a verdict of
          not guilty.

(Emphasis added.)

    As   quoted   above,   at   the   conclusion   of   the   first-degree

murder instruction and immediately following the portion of the

instruction addressing the theory of lying in wait — which was

the third and final theory submitted to the jury regarding this

charge — the trial court ended the instruction by giving the

following mandate:

          If you do not so find or have a reasonable
          doubt as to one or more of these things, it
          would be your duty to return a verdict of
          not guilty.

Defendant asserts that the jury could have construed this not

guilty mandate as applying solely to the theory of lying in wait

as opposed to applying to the overall charge of first-degree

murder as to Frink.

    Our Supreme Court addressed the sufficiency of a final not

guilty mandate in Chapman.       In that case, the defendant wounded

one passenger of a car and killed another when he fired his

rifle into the victims’ car from his own vehicle while both
                                     -18-


vehicles were traveling on the highway.               Chapman, 359 N.C. at

337-38, 611 S.E.2d at 804-05.             The defendant was charged with

first-degree      murder     based   on     three     separate     theories     —

premeditation     and      deliberation,     felony      murder    based     upon

attempted    first-degree     murder,     and   felony    murder   based     upon

discharging a firearm into occupied property.                Id. at 380, 611

S.E.2d at 831.      The defendant claimed that he was entitled to a

new trial because the trial court failed to provide a not guilty

mandate as to the theory of felony murder based upon attempted

first-degree murder.        Id. at 380, 611 S.E.2d at 830-31.

       The Supreme Court acknowledged that the trial court did not

instruct the jury that it was their duty to return a verdict of

not guilty if the State failed to establish felony murder based

upon attempted first-degree murder.             However, the Court observed

that

            [a]t the conclusion of the trial court's
            mandate on all three theories of first-
            degree murder, the trial judge instructed
            the jurors as follows: “If you do not find
            the defendant guilty of first-degree murder
            on the basis of malice, premeditation and
            deliberation and if you do not find the
            defendant guilty of first-degree murder
            under the felony murder rule, it would be
            your duty to return a verdict of not
            guilty.”

Id.     In light of the presence of this final mandate at the

conclusion   of   the   trial   court’s     overall      instructions   on    the

charge of first-degree murder, the Supreme Court concluded that
                                     -19-


the absence of a not guilty mandate as to one of the three

theories submitted did not constitute error.           Id.

           Because defendant confuses the trial court's
           instructions on the three separate theories
           of first-degree murder with instructions on
           first-degree murder itself, and because the
           trial court gave a proper mandate at the
           closure    of   the    first-degree   murder
           instruction, we determine that the trial
           court instructed the jury that it could find
           defendant not guilty of first-degree murder.
           Accordingly, this assignment of error is
           overruled.

Id.

      In McHone, upon which Defendant primarily relies in his

argument on this issue, the defendant was convicted of robbery

with a dangerous weapon and first-degree murder on theories of

both premeditation and deliberation and felony murder.               McHone,

174 N.C. App. at 291, 620 S.E.2d at 905-06.                   The defendant

argued on appeal that the trial court committed plain error by

(1) failing to include the option of not guilty of first-degree

murder in its final mandate to the jury; and (2) omitting the

not   guilty   option   from   the   verdict   sheet    for   that   offense

despite including a not guilty option on the verdict sheet for

the robbery with a dangerous weapon charge.         Id.

      In our analysis     regarding this       issue, we set out       three

factors that must be weighed in determining whether the failure

to give an appropriate not guilty mandate rises to the level of

plain error.
                                    -20-


           We first consider the jury instructions on
           murder in their entirety in determining
           whether the failure to provide a not guilty
           mandate constitutes plain error. . . . The
           instruction, then, in the absence of a final
           not guilty mandate, essentially pitted one
           theory of first degree murder against the
           other, and impermissibly suggested that the
           jury should find that the killing was
           perpetrated by defendant on the basis of at
           least one of the theories. Telling the jury
           “not to return a verdict of guilty” as to
           each theory of first degree murder does not
           comport with the necessity of instructing
           the jury that it must or would return a
           verdict of not guilty should they completely
           reject   the   conclusion    that  defendant
           committed first degree murder.

McHone,   174   N.C.   App.   at   297,    620   S.E.2d   at   909   (internal

brackets omitted).

    After considering the not guilty mandate, this Court next

considered the composition of the verdict sheet submitted to the

jury:

           Secondly, we consider the content and form
           of the first degree murder verdict sheet in
           determining whether the failure to provide a
           not guilty mandate constitutes plain error.
           Here, the trial court initially informed the
           jury that it was their “duty to return one
           of the following verdicts: guilty of first-
           degree murder or not guilty.” However, the
           verdict sheet itself did not provide a space
           or option of “not guilty.” And while the
           content and form of the verdict sheet did
           not compel the jury to return a verdict of
           guilty insofar as it stated “if” it found
           defendant guilty of first degree murder, we
           repeat our observation that it failed to
           afford   exactly   that   which   the   court
           initially informed the jury it would be
           authorized to return — a not guilty verdict.
                                    -21-



Id. at 297-98, 620 S.E.2d at 909.

    Finally,    we   stated   the   need   to   compare   the   challenged

instruction    to    the   instructions    given   for    other   charged

offenses:

            Thirdly, we consider the instructions and
            verdict sheet for the armed robbery/larceny
            offenses in determining whether the failure
            to provide a not guilty final mandate for
            the murder charge constitutes plain error.
            As to these taking offenses, the trial court
            judge did provide a not guilty mandate.
            After instructing the jury that it must
            consider the offense of larceny should they
            reject the armed robbery, the court properly
            charged the jury, “If you do not so find or
            if you have a reasonable doubt as to one or
            more of these things, it would be your duty
            to return a verdict of not guilty as to that
            charge.”   Rather  than   help  correct   the
            failure to provide a similar not guilty
            mandate with respect to the first degree
            murder charge, the presence of a not guilty
            final mandate as to the taking offenses
            likely reinforced the suggestion that the
            jury should return a verdict of first degree
            murder   based    upon   premeditation    and
            deliberation and/or felony murder.2 Likewise,

2
  “The versions of McHone available online through Westlaw and
LexisNexis contain the full sentence quoted above.     The South
Eastern Reporter, 2d Series also contains this full sentence.
The slip opinion available online also contains this full
sentence.   State v. McHone, 620 S.E.2d at 909.     However, the
subject of the sentence is missing from the hard copy of the
N.C. Court of Appeals Reports.      The N.C. Court of Appeals
Reports has only the following incomplete sentence: ‘Rather than
help correct the failure to provide a similar not guilty mandate
with respect to the taking offenses likely reinforced the
suggestion that the jury should return a verdict of first degree
murder based upon premeditation and deliberation and/or felony
murder.’ McHone, 174 N.C.App. at 298, 620 S.E.2d 903.”
                                 -22-


           the content and form of the verdict sheet on
           the taking offenses, which did afford a
           space for a not guilty verdict, also likely
           reinforced the suggestion that defendant
           must have been guilty of first degree murder
           on some basis . . . .

Id. at 298, 620 S.E.2d at 909.

    This Court has addressed this issue in several cases since

McHone was decided.   In State v. Wright, 210 N.C. App. 697, 709

S.E.2d 471, disc. review denied, 365 N.C. 332, 717 S.E.2d 394

(2011), the defendant was charged with assault with a deadly

weapon with intent to kill inflicting serious injury and first-

degree burglary.    Id. at 699, 709 S.E.2d at 473.           During the

final mandate on the charge of first-degree burglary, the trial

court instructed the jury as follows:       “If you do not so find or

have a reasonable doubt as to one or more of these things, you

will not return a verdict of guilty of first-degree burglary.”

Id. at 704, 709 S.E.2d at 476.          We determined that this final

not guilty mandate was insufficient, reasoning that “the trial

court failed to add at the end of the mandate that ‘it would be

your duty to return a verdict of not guilty.’        We have held that

the failure to give the final not guilty mandate constitutes

error.”   Id.

    However,    applying   McHone,   we   next   examined   the   verdict

sheet in order to determine whether the absence of the final not



Gosnell, __ N.C. App. at __, n. 1, 750 S.E.2d at 596, n. 1.
                              -23-


guilty mandate constituted plain error.

               In McHone, this Court's plain error
         analysis centered upon the fact that the
         trial court impermissibly suggested that the
         defendant must have been guilty of first
         degree murder on some basis.      This Court
         concluded that the jury instructions in that
         case    constituted  plain  error.      This
         conclusion was based not only on the
         importance of the jury receiving a not
         guilty mandate from the presiding judge, but
         also on the form and content of the
         particular verdict sheets utilized in this
         case.

Id. at 706, 709 S.E.2d at 477 (internal citations and quotation

marks omitted).

    Upon inspection of the verdict sheet for the first-degree

burglary charge, we determined that the not guilty option had

been included therein.

              In the instant case, there was nothing
         that would support the proposition that the
         trial court impermissibly suggested that
         defendant must be guilty of first-degree
         burglary.   The trial court gave the jury a
         choice of returning a verdict of guilty of
         first-degree burglary or not returning a
         verdict of guilty of first-degree burglary
         if they had a reasonable doubt as to one or
         more of the elements of the crime.     There
         were no alternative theories that the jury
         could consider or lesser-included offenses.
         The verdict sheet for first-degree burglary
         provided a space for the jury to check
         “Guilty of First Degree Burglary” or “Not
         Guilty.”   Likewise, the verdict sheet for
         the other offense in this case also included
         a space for a verdict of guilty or not
         guilty.

               While it was error for the trial court
                                       -24-


              to fail to deliver the final not guilty
              mandate, this error does not rise to the
              level of plain error.

Id. at 706, 709 S.E.2d at 477.

    In    State     v.   Gosnell,     __   N.C.   App.   __,    750   S.E.2d    593

(2013),       the trial court instructed the jury on two theories as

to which it could find the defendant guilty                     of first-degree

murder    —    premeditation    and    deliberation      and    lying   in    wait.

While its instructions on the lying in wait theory contained a

not guilty mandate, no such mandate was given in the portion of

the jury instructions relating to the theory of premeditation

and deliberation.        Id. at __, 750 S.E.2d at 595.

    In conducting a plain error review, we applied the three-

factor test set forth in McHone and concluded that

              [t]he verdict sheet provided a space for a
              “not guilty” verdict, and the trial court's
              instructions on second-degree murder and the
              theory of lying in wait comported with the
              requirement in McHone.   The trial court did
              not commit plain error in failing to
              instruct that the jury would or must return
              a “not guilty” verdict if it did not
              conclude that Defendant committed first-
              degree murder on the basis of premeditation
              and deliberation.

Id. at __, 750 S.E.2d at 596.

    In State v. Jenkins, 189 N.C. App. 502, 658 S.E.2d 309

(2008),   the     defendant    was    charged     both   with   assault      with   a

deadly weapon inflicting serious injury and assault inflicting

serious bodily injury.          Id. at 503, 658 S.E.2d at 310.                While
                                         -25-


the verdict sheet did contain a not guilty option for the charge

of   assault   inflicting         serious   bodily     injury,   it   failed   to

include a not guilty option for the charge of assault with a

deadly weapon inflicting serious injury.                  Id. at 504-05, 658

S.E.2d at 311.      We held that the defendant was entitled to a new

trial because the trial court’s not guilty mandate in its jury

instructions was “not clear enough to support a verdict sheet

that omits a ‘not guilty’ option . . . .”                    Id. at 507, 658

S.E.2d at 313.

      In the present case, the trial court did issue a not guilty

mandate at the conclusion of the instruction on first-degree

murder as to Frink, stating the following:

             If you do not so find or have a reasonable
             doubt as to one or more of these things, it
             would be your duty to return a verdict of
             not guilty.

      While the better practice would have been for the trial

court   to   make   clear    to    the   jury   that   its   final    not   guilty

mandate applied to all three theories of first-degree murder,

this — by itself — is not sufficient to establish plain error.

Instead we must examine the second and third factors of the

McHone test.

      With regard to the second factor, we are unable to identify

any error in the verdict sheet regarding the first-degree murder

charge as to Frink.         This portion of the verdict sheet stated as
                                      -26-


follows:

      ____ 1. GUILTY of FIRST DEGREE MURDER of Darnell Antonio
              Frink
            IF YOU ANSWERED "YES," IS IT:
            A. On the basis of malice, premeditation and
            deliberation?
            ANSWER:______
            B. On the basis of the first degree felony murder
            rule?
            ANSWER:_______
            C. On the basis of lying in wait?
            ANSWER:_______
      OR
      ____ 2. NOT GUILTY
      We are satisfied that this portion of the verdict sheet

clearly    informed   the    jury    of   its   option    of       returning    a   not

guilty verdict regarding this charge.                 Indeed, Defendant does

not contend otherwise.

      We next turn to the third factor enumerated in McHone.                          It

is particularly appropriate to compare the not guilty mandate

regarding the first-degree murder charge as to Frink with the

analogous mandate regarding the first-degree murder charge as to

Jones.     This is so because not only were both instructions for

the   offense   of    first-degree        murder   but,       in    addition,       both

charges    involved   more    than    one    theory      of    guilt    upon    which
                               -27-


Defendant could be convicted.3    The instruction on the first-

degree murder charge as to Jones — with the portions containing

a not guilty mandate italicized — stated in pertinent part as

follows:

           The defendant   has been charged with the
           first degree    murder of Rasheed Delamez
           Jones.

           Under the law and the evidence of this case
           it is your duty to return one of the
           following verdicts, either guilty of first
           degree murder or not guilty.

           You may find the defendant guilty of first
           degree murder either on the basis of malice,
           premeditation and deliberation or under the
           first degree felony murder rule, or both.

           First degree murder on the basis of malice,
           premeditation   and  deliberation   is  the
           intentional and unlawful killing of a human
           being with malice and premeditation and
           deliberation.

           First degree murder under the first degree
           felony murder rule is the killing of a human
           being in the perpetration of first degree
           kidnapping.

           For you to find the defendant      guilty of
           first degree murder on the basis    of malice
           premeditation and deliberation,    the State
           must prove five things beyond a    reasonable
           doubt:

           First, that the defendant intentionally and
           with malice killed the victim with a deadly
           weapon.   Malice means not only hatred, ill

3
  With regard to both murder charges, the jury was instructed on
theories of premeditation and deliberation and felony murder.
However, as noted above, the jury was also instructed on a
theory of lying in wait as to the death of Frink.
                    -28-


will   or   spite,  as   it   is   ordinarily
understood, to be sure that is malice, but
it also means that condition of mind that
prompts a person to take the life of another
intentionally or to intentionally inflict a
wound with a deadly weapon upon another
which proximately results in his death
without just cause, excuse or justification.

If the State proves beyond a reasonable
doubt   that  the   defendant  intentionally
killed the victim with a deadly weapon or
intentionally inflicted a wound upon the
victim with a deadly weapon that proximately
caused his death, you may infer first that
the killing was unlawful and, second, that
it was done with malice, but you are not
compelled to do so.    You may consider the
inference along with all other facts and
circumstances in determining whether the
killing was unlawful and whether it was done
with malice. A firearm is a deadly weapon.

Second, the State must prove the defendant’s
act was a proximate cause of the victim’s
death. A proximate cause is a real cause, a
cause without which the victim’s death would
not have occurred.

Third, that the defendant intended to kill
the victim.    Intent is a mental attitude
seldom provable by direct evidence. It must
ordinarily be proved by circumstances from
which it may be inferred. An intent to kill
may be inferred from the nature of the
assault, the manner in which it was made,
the conduct of the parties and other
relevant circumstances.

Fourth, that the defendant acted after
premeditation; that is, that he formed the
intent to kill the victim over some period
of time, however short, before he acted.

And, fifth, that the defendant acted with
deliberation, which means he acted while he
was in a cool state of mind, this does not
                    -29-


mean there had to be a total absence of
passion or emotion.  If the intent to kill
was formed with a fixed purpose, not under
the influence of some suddenly aroused
violent passion, it is immaterial that the
defendant was in a state of passion or
excited when the intent was carried into
effect.

Neither premeditation nor deliberation is
usually susceptible of direct proof, it may
be proved by proof of circumstances from
which they may be inferred such as the lack
of provocation by the victim, the conduct of
the defendant before, during and after the
killing, use of gross excessive force,
brutal or vicious circumstances of the
killing, or the manner in which or means by
which the killing was done.

I further charge you that for you to find
the defendant guilty of first degree murder
under the first degree felony murder rule,
the State must prove four things beyond a
reasonable doubt:

First, that the defendant committed first
degree kidnapping.     I remind you the
elements of first degree kidnapping are as
follows:

. . . .

If you find from the evidence beyond a
reasonable doubt that on or about the
alleged   date  the   defendant acted   with
malice, killed the victim with a deadly
weapon, thereby proximately causing the
victim’s death, that the defendant intended
to kill the victim and that the defendant
acted    after    premeditation  and    with
deliberation, it would be your duty to
return a verdict of guilty of first degree
murder on the basis of malice, premeditation
and deliberation.
                    -30-


If you do not so find or have a reasonable
doubt as to one or more of these things, you
would not return a verdict of guilty of
first degree murder on the basis of malice,
premeditation and deliberation.

Whether or not you find the defendant guilty
of first degree murder on the basis of
malice, premeditation and deliberation, you
will also consider whether he is guilty of
first degree murder under the first degree
felony murder rule.

If you find from the evidence beyond a
reasonable doubt that on or about the
alleged   date   the   defendant   unlawfully
removed a person from one place to another
and that the person had not reached his
sixteenth   birthday   and  his   parent   or
guardian did not consent to his removal and
that this was done for the purpose of
facilitating the defendant’s commission for
(sic) the murder of Rasheed Delamez Jones,
and that this removal was a separate,
complete act, independent of and apart from
the murder, and that the person removed was
not released by the defendant in a safe
place or was seriously injured and that
while committing first degree kidnapping,
the defendant killed the victim and that the
defendant’s act was a proximate cause of the
victim’s death, and that the defendant
committed first degree kidnapping with the
use of a deadly weapon, it would be your
duty to return a verdict of guilty of first
degree murder under the felony murder rule.

If you do not so find or have a reasonable
doubt as to one or more of these things, you
would not return a verdict of guilty, excuse
me, you would return a verdict of not
guilty.

Let me make sure it’s absolutely clear on
that language. Again under — for Mr. Frink,
you will have three choices under first
degree murder.   You will go through and
                                      -31-


            consider each of those three bases for first
            degree murder, consider all three. You will
            only render not guilty if you find that none
            of those three exist.

            As to Mr. Jones, the same situation, first
            degree murder there are two bases, you will
            consider both of those bases, only if you
            found (sic) that neither of those bases
            exist, then you go to not guilty.

(Emphasis added.)

      Initially, we note that Defendant has not challenged on

appeal the trial court’s not guilty mandate contained in its

first-degree murder instruction as to Jones.              In comparing the

first-degree murder instructions as to Frink and Jones, several

observations can be made.         First, the final not guilty mandate

in the Frink instruction is worded more appropriately than that

in the Jones instruction.         The former informed the jury of its

“duty” to return a verdict of not guilty while the latter merely

stated that the jury “would” return a not guilty verdict if the

State    failed   to   prove   Defendant’s     guilt   beyond   a   reasonable

doubt.

      Second, in the Jones instruction, the trial court gave a

not guilty mandate both after its instruction on the theory of

premeditation and deliberation and then again at the conclusion

of   the   overall     first-degree   murder    charge.     Conversely,    as

discussed above, with regard to the Frink charge, the trial

court only gave a not guilty mandate at the conclusion of the
                                        -32-


overall first-degree murder instruction rather than after each

specific theory of guilt.

    Finally,      at   the   end   of     the    Jones    first-degree      murder

charge, the trial court referenced the Frink first-degree murder

charge, stating the following:

           Let me make sure it’s absolutely clear on
           that language. Again under — for Mr. Frink,
           you will have three choices under first
           degree murder.     You will go through and
           consider each of those three bases for first
           degree murder, consider all three. You will
           only render not guilty if you find that none
           of those three exist.

    We acknowledge that this reference by the trial court to

the jury’s obligation regarding the Frink first-degree murder

charge was not worded with perfect clarity and that it would

have been more appropriate for the trial court to emphasize the

jury’s duty to return a verdict of not guilty in the event that

it found the State had failed to prove Defendant’s guilt beyond

a reasonable doubt.          Nevertheless, we are satisfied that any

confusion that may have arisen stemming from the trial court’s

instructions     was   remedied    by    the    verdict    sheet,   which    —   as

discussed above — clearly provided an option of not guilty.

    Even   assuming,     without    deciding,      that    the   trial   court’s

instructions relating to this charge were not free from error,

based on our careful review of the jury instructions in their

entirety   and   the    caselaw    discussed      above,    we   conclude    that
                                           -33-


Defendant      has     failed      to      show      plain    error.         Therefore,

Defendant’s argument on this issue is overruled.

III. Lying in Wait

    Defendant         also      contends      that   the     trial   court    erred   by

instructing the jury — over the objection of his trial counsel —

on first-degree murder based upon a theory of lying in wait with

regard to the death of Frink.

              Preserved legal error is reviewed under the
              harmless error standard of review. . . .
              North   Carolina   harmless   error   review
              requires the defendant to bear the burden of
              showing prejudice.      In such cases the
              defendant must show a reasonable possibility
              that, had the error in question not been
              committed, a different result would have
              been reached at the trial out of which the
              appeal arises.

Lawrence, 365 N.C. at 512-13, 723 S.E.2d at 330-31 (internal

citations and quotation marks omitted).

    In    the    present        case,    Defendant      was    convicted     of   first-

degree murder as to Frink based upon three separate theories —

premeditation        and    deliberation,          felony    murder,   and    lying    in

wait.    On appeal, Defendant has only challenged the sufficiency

of the evidence with regard to the lying in wait theory.

    A similar issue was presented in Gosnell.                          In that case,

the defendant was convicted of first-degree murder both on a

theory   of    lying       in   wait    and    a    theory    of   premeditation      and

deliberation.        Gosnell, __ N.C. App. at __, 750 S.E.2d at 598.
                                       -34-


However, on appeal, he argued only that it was error for the

trial court to have submitted the theory of lying in wait to the

jury.     Id. at __, 750 S.E.2d at 596.               This Court held that

because    the    jury       had   separately    convicted     him     based   on

premeditation and deliberation, “[e]ven assuming Defendant can

show    error    on   this    basis,   Defendant     cannot    show    prejudice

resulting from the error because there is no possibility that,

had the error in question not been committed, a different result

would have been reached at trial.”                Id. at __, 750 S.E.2d at

598.

       Therefore, even assuming, without deciding, that the jury

instruction on lying in wait was erroneous, such error would not

have affected Defendant’s conviction of first-degree murder as

to Frink on the theories of premeditation and deliberation and

felony    murder.            Consequently,      Defendant     has     failed   to

demonstrate how a different result would have been reached at

trial had the challenged theory not been submitted to the jury.

IV. Failure to Adequately Individualize Charges

       Defendant next        makes a series of arguments in which he

contends that the trial court erred by failing to instruct the

jury to consider each offense individually.                 Because Defendant

did not object to any of these instructions at trial, we again

apply a plain error standard of review.              See Lawrence, 365 N.C.
                                        -35-


at 518, 723 S.E.2d at 334.                We address each of his specific

arguments in turn.

      First, Defendant asserts that “[f]or the assault with a

deadly    weapon     with   intent   to    kill      inflicting      serious    injury

charges for two victims, the court named both victims, but then

gave an instruction as to ‘the victim.’”                     Based on our Supreme

Court’s holding in State v. Huff, 325 N.C. 1, 381 S.E.2d 635,

Defendant’s argument lacks merit.

      In Huff, the defendant was being tried on two separate

counts of first-degree murder.            Id. at 51-54, 381 S.E.2d at 664-

66.    On appeal, he cited as plain error various instructions

that referred to a single victim, a single case, and a single

decision to be made.           Id.   He contended that these references

were misleading and could have led jurors to believe that they

were permitted to make a joint determination of guilt.                         Id.   He

argued that the trial judge had (1) periodically referred to a

single “victim” (although there were two victims); (2) stated

that the State had the burden of “proving the case” (although

there were two cases for the State to prove); and (3) instructed

the   jury    that    the   “decision     in   the    case    must    be   unanimous”

(although the jury was required to make decisions in each of two

cases).      Id.     The defendant also contended that the trial court

erred by giving a single joint instruction on the affirmative

defense of insanity.         Id.
                                          -36-


         In rejecting the defendant’s argument, the Supreme Court

explained that although “[t]he trial judge did not specifically

instruct the jurors to consider each charge separately[,] . . .

the instructions which he did give achieved that result; taken

as   a    whole,      they   make   clear   that    in   the    determination   of

defendant's guilt or innocence the jury was to consider each

charge separately.”           Id. at 52, 381 S.E.2d at 664.              The Court

held     that    if   a   trial   court   identifies     each   victim   for   each

separate count of the same charged offense, it is not plain

error for the trial court to then describe the elements of the

offense only once:

                The trial judge proceeded to the instruction
                on first-degree murder.    He instructed on
                the first element, an intentional killing by
                the defendant of the victim with malice.
                After giving the general instruction which
                applied to both cases, [the trial judge]
                specifically referred to the Gail Strickland
                case and gave the specific instruction which
                applied only in the shooting death . . . He
                said, “In your consideration of the case in
                which Gail Strickland is the victim . . . .”
                By referring to the Gail Strickland case by
                name, he distinguished it from the case in
                which Crigger Huff was the victim and
                indicated that the jury should consider the
                evidence   of  the   Gail   Strickland  case
                separately from the evidence in the Crigger
                Huff case.

Id. at 52-53, 381 S.E.2d at 665.                   The Supreme Court in Huff

further held that

                [t]he format of the verdict sheet and the
                trial judge's instruction describing it are
                                       -37-


            additional evidence that the instructions as
            a whole made clear that the jury was to
            consider each charge separately. The record
            on appeal shows that the verdict form lists
            each   charge  separately   and  states  the
            permitted verdicts under each charge.   This
            separate treatment clearly requires that the
            two charges be addressed separately.

Id. at 54, 381 S.E.2d at 665.

    In     the    present    case,    as   in   Huff,    all   charges    against

Defendant were listed separately on separate verdict sheets and

each sheet set forth all permissible verdicts under each charge.

In addition, the trial court referred to Waddell and Inman as

separate   victims     of    two    different   counts    of   assault     with   a

deadly weapon with intent to kill inflicting serious injury:

            The defendant has been charged with two
            counts of assault with a deadly weapon with
            intent to kill inflicting serious injury in
            regards to William Inman and Antwan Waddell.
            For you to find the defendant guilty of
            those two, offenses, the State must prove
            four things beyond a reasonable doubt[.]

We believe that the trial court’s instructions — coupled with

the verdict sheets — made clear to the jury that there were two

separate counts and two separate victims regarding this charge.

    While Defendant also contends the trial court failed to

separately instruct on the two counts of conspiracy to commit

first-degree murder, the trial court likewise informed the jury

that there were two counts for its consideration as to that

offense    by    stating    the    following:     “The    defendant      has   been
                                           -38-


charged    with        conspiracy    to    commit    murder      of    Darnell    Antonio

Frink and Rasheed Delamez Jones, two counts as to that offense.”

Furthermore, the verdict sheets made clear that there were two

separate counts regarding the conspiracy charge as each count

was listed on a separate verdict sheet.                        Consequently, based on

Huff,    we    cannot     say    that     this    instruction         constituted      plain

error.

       In his brief, Defendant also contends that “the [trial]

court combined the two charges of felon in possession [of a

firearm]       without     specifying       the     dates      of     the   offenses     or

instructing the jurors that guilt for one of the offenses did

not mean guilt for the other offense.”                     Our review of the trial

transcript,         however,      reveals        that     the       trial      court     did

specifically indicate the dates of the offenses and make clear

that there were two separate counts of that offense by stating

that    “[t]he      defendant       has   been     charged      with    two     counts   of

possession of a firearm by a felon . . . and the two alleged

dates, the first being September 21st, 2007 and the second being

November       19th,    2007.”       Furthermore,        the    jury     was    given    two

separate       verdict     sheets       reflecting       the    two    counts     of    this

offense       and   the   respective       dates    of    each      count   was   clearly

contained on each verdict sheet.                   Therefore, Defendant has also

failed to show plain error with regard to this instruction.
                                            -39-


       Defendant    next    asserts         that    with     regard    to    the   felony

murder instruction regarding the death of Frink, the jury was

not informed which assault could form the basis for the felony

murder charge.       However, this error does not rise to the level

of plain error.        See State v. Coleman, 161 N.C. App. 224, 234-

35,    587    S.E.2d    889,          896    (2003)        (“[T]he     trial       court's

instructions to the jury were ambiguous as to what underlying

felony formed the basis of [the] felony murder charge. . . .

Only   one   underlying     felony          is   required     to    support    a   felony

murder    conviction,       and       in    this     case,     the    jury     convicted

defendant of four separate felonies which could have served as

the underlying felony. . . . [B]ecause the instructions in the

instant case allowed the jury to convict defendant of a single

wrong by alternative means the instructions were not fatally

ambiguous.”        (internal          citation       and      ellipses        omitted)).

Therefore,    based    on    Coleman,            Defendant    has     also    failed   to

establish plain error with regard to this instruction.

       Finally, Defendant briefly argues that “[t]he [trial] court

gave the mandate for the Jones murder, but gave no mandate for

the underlying felony, kidnapping.”                   However, our review of the

trial transcript reveals that the trial court                          did,    in fact,

expressly    provide    such      a    mandate.        Therefore,       this    argument

fails as well.

V. Felony Murder
                                        -40-


    Defendant’s         final    argument         is   that    the     trial   court

committed plain error by instructing the jury on the theory of

felony murder regarding the death of Jones because there was

insufficient evidence of the predicate felonies, first-degree

kidnapping and conspiracy to commit first-degree kidnapping.

    However, Defendant was convicted of first-degree murder as

to the death of Jones based not only on a theory of felony

murder    but    also    based    on    a    theory     of     premeditation      and

deliberation.      Therefore, as discussed above in connection with

Defendant’s challenge to the lying in wait instruction as to the

death    of   Frink,    any   error    in   the    trial     court’s   decision   to

instruct the jury on felony murder would not have affected his

conviction for the first-degree murder of Jones on a theory of

premeditation and deliberation.                See Gosnell, __ N.C. App. at

__, 750 S.E.2d at 598.          Thus, this argument is overruled.

                                   Conclusion

    For the reasons stated above, we conclude that Defendant

received a fair trial free from prejudicial error.

    NO PREJUDICIAL ERROR.

    Judges ELMORE and McCULLOUGH concur.
