An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-563
                       NORTH CAROLINA COURT OF APPEALS

                              Filed:     15 April 2014


STATE OF NORTH CAROLINA

       v.                                      Mecklenburg County
                                               Nos. 11 CRS 233836-37

MONTREALL LAVELL BANNER
     Defendant.


       Appeal by defendant from judgment entered 9 November 2012

by Judge Yvonne Mims Evans in Mecklenburg County Superior Court.

Heard in the Court of Appeals 10 October 2013.


       Roy Cooper, Attorney General, by Francis W. Crawley,
       Special Deputy Attorney General, and Jennie Wilhelm Hauser,
       Special Deputy Attorney General, for the State.

       Glenn Gerding for defendant-appellant.


       DAVIS, Judge.


       Defendant    Montreall        Lavell    Banner   (“Defendant”)      appeals

from   his    convictions      for     first-degree     murder    and    attempted

robbery with a dangerous weapon.                 His primary contentions on

appeal are that (1) the trial court erred in failing to instruct

the jury concerning the defense of withdrawal; and (2) his trial

counsel’s      failure      to       request    a    withdrawal         instruction
                                               -2-


constituted ineffective assistance of counsel.                           After careful

review, we conclude that Defendant received a fair trial free

from error.

                                   Factual Background

    The     State’s         evidence      at    trial    tended     to   establish   the

following      facts:         On    23     July      2011,    Ms.   Shenelle      Boetius

(“Boetius”),         Mr.     Jeremy      Jackman        (“Jackman”),      Ms.     Shanika

Franklin (“Franklin”), and Mr. Deone Varra (“Varra”) decided to

rob Isaac Rodriguez (“Rodriguez”) at his room at the Brookwood

Inn (“the Inn”).            Varra called Defendant and told Defendant to

meet him at the Inn.               Once at the Inn, Defendant met up with

Varra,    Boetius,         Jackman,      and    Franklin     outside     Varra’s   room,

where Varra asked Defendant to participate in the robbery.

    The group ultimately decided upon a plan in which Boetius

and Franklin would knock on Rodriguez’s door, gain entry, and

distract Rodriguez while Defendant, Jackman, and Varra listened

in on what transpired in the room by way of a cell phone set on

speakerphone      and       hidden       on    Boetius’s      person.       When     they

determined that Rodriguez was distracted, Defendant and Jackman

would then enter the room and hold Rodriguez at gunpoint so that

they could “do the robbery.”                    Both Defendant and Jackman were

armed with firearms.

    Shortly       after       knocking         on    Rodriguez’s     door   and     being

invited   in    by    Rodriguez,         Boetius      and    Franklin    changed   their
                                  -3-


minds about participating in the robbery.         After turning off the

concealed cell phone, they informed Rodriguez that he was about

to be robbed.      Franklin then left the motel room and Boetius

began to follow her.       While Boetius was still in the doorway,

Defendant and Jackman came down the hallway and pushed past her

into Rodriguez’s room.     Boetius then “took off running.”      As she

was running away, Boetius heard a single gunshot.

    Shortly thereafter, Jackman called Boetius on her cellphone

and told her to meet him in the back of the Inn parking lot.

Boetius complied and went to the back of the lot where she met

up with Defendant and Jackman.      She observed Jackman had wrapped

up his gun in his T-shirt.

    Jackman demanded Boetius go back up to Rodriguez’s room and

“take the money and the drugs.”      As Boetius began to walk up the

stairs to Rodriguez’s room, however, she, Jackman, and Defendant

saw a police car turning into the Inn parking lot.         Upon seeing

the police car, Jackman ran from the lot and was eventually

caught   and    arrested   by   Officer   Elvir    Redzepovic   of   the

Charlotte-Mecklenburg Police Department.      Meanwhile, Boetius ran

back to Varra’s room where she was joined by Defendant, Varra,

and Franklin.     Defendant and Varra left the room briefly and,

upon returning, told her that Rodriguez was dead.

    Defendant and Boetius then decided to leave the scene of

the crime by climbing over a wall located at the back of the Inn
                                           -4-


parking lot.          Before climbing the wall, Defendant put both his

gun and Jackman’s gun — still wrapped in Jackman’s T-shirt —

into Boetius’s pocketbook.               They then fled the area, proceeding

to an apartment complex where they sat and waited on the curb

until an unknown individual who was driving by asked them if

they wanted a ride.            Defendant and Boetius got into the car, and

the individual began driving.               While in the car, Defendant took

his and Jackman’s guns from Boetius’s pocketbook.                       Defendant was

still in possession of the firearms when he was dropped off per

his instructions at “[t]he Plaza across the street from the BP.”

       Later    that     same     day,     the     Charlotte-Mecklenburg         Police

Department      received       information       that    Defendant     was   trying     to

sell a firearm.          Detective Terrence Gerald (“Detective Gerald”)

of the Charlotte-Mecklenburg Police Department, who was working

undercover, arranged to meet Defendant in the parking lot of the

Wal-Mart   on        Eastway    Drive,     where    he    purchased    the   gun      from

Defendant.      The gun was later identified by Mr. Todd Nordhoff, a

firearm and tool mark examiner with the Charlotte-Mecklenburg

crime laboratory, as the gun that had been used to shoot and

kill   Rodriguez.          Immediately       after       the   sale,   Defendant      was

arrested       and    taken     to   the    Law     Enforcement        Center    to    be

interviewed.

       After    being     read    his    Miranda        rights   and   waiving     them,

Defendant, during the course of an interview with Detectives
                                   -5-


Todd Burkard (“Detective Burkard”) and J.A. Sterrett (“Detective

Sterrett”),   disclosed   that    he    had    been   in   Rodriguez’s     room

either during or immediately after Rodriguez’s murder.

    On 1 August 2011, Defendant was indicted on one count of

first-degree murder and one count of attempted robbery with a

dangerous weapon.    A jury trial was held in Mecklenburg County

Superior Court on 5 November 2012.

    Defendant    testified   in   his    own    defense    at   trial.      His

testimony presented the following account of the events of 23

July 2011:     Defendant met with Varra, Jackman, Franklin, and

Boetius at the Inn, and the group ultimately decided to rob

Rodriguez.    Defendant’s only role in the planned robbery was to

take any drugs and money he found in Rodriguez’s room while

Jackman held up Rodriguez.        Boetius’s and Franklin’s roles in

the planned robbery were to distract Rodriguez, thereby enabling

Defendant and Jackman to enter Rodriguez’s room and catch him by

surprise.

    As Defendant and Jackman were approaching Rodriguez’s room

and were roughly two feet away from the door, Defendant saw that

Boetius was walking out of the room.           Because her departure from

Rodriguez’s   room was not part of the plan, Defendant                   became

“real nervous” and “punked out.”              Defendant further explained

that “[b]y punked out, I mean like I didn’t follow out the plan,

I gave up, got nervous.      I wasn’t down with it no more, I just
                                           -6-


kept walking.”

       Without     saying    anything      to    Jackman     —    who,    according      to

Defendant, was already ahead of him and walking into Rodriguez’s

room    —   or    the   other       conspirators,         Defendant       proceeded      to

abruptly    turn    away     from    the    door    and    head    down    a    staircase

located next to Rodriguez’s room.                   As he was walking down the

stairs, Defendant heard a single gunshot.                    He then ran down the

remaining    stairs        and    out    into    the   parking      lot,       ultimately

returning    to    Varra’s       room    where   he    met   up    with    Boetius    and

Franklin.        Shortly thereafter, Jackman returned to Varra’s room

and informed Defendant, Boetius, and Franklin that he had shot

Rodriguez in the heart and that Rodriguez was dead.

       Jackman then took the gun he had used to shoot Rodriguez

and wrapped it in a pillowcase from Varra’s room as well as the

T-shirt Jackman had been wearing.                  Jackman placed the parcel in

Boetius’s purse.        Defendant then fled over the back wall of the

Inn parking lot with Boetius and eventually got a ride away from

the scene in the minivan of a friend whom Boetius had called.

While in the back of the minivan, Defendant admitted to taking

Jackman’s gun from Boetius’s purse.

       Later that day, Defendant “put the word out” that he had a

gun to sell.        Defendant subsequently sold the gun to Detective

Gerald.          With   regard      to     his     subsequent      interrogation         by

Detectives       Burkard    and     Sterrett,      Defendant      testified       that    —
                                                 -7-


contrary       to    his    statements       during          the    recorded       interrogation

which was played for the jury at trial — he had not been in

Rodriguez’s room at any point.                         He further stated that he had

been     deliberately           untruthful         with        Detectives           Burkard      and

Sterrett because he thought they would allow him to leave if he

told    them    what       he   believed     they       wanted        to    hear.         Defendant

claimed that he would never have lied during his interrogation

if he had been aware of the felony murder rule and the theory of

acting in concert.

       Defendant          was   convicted        of     (1)        felony    murder;       and   (2)

attempted robbery with a firearm.                             The trial court arrested

judgment       on     Defendant’s          attempted          robbery        with     a    firearm

conviction          and    sentenced       him    to        life    imprisonment          with   the

possibility of parole after 25 years of incarceration for first-

degree felony murder.               Defendant gave notice of appeal in open

court.

                                            Analysis

I. Instruction on Withdrawal

       Defendant’s          first    argument          on    appeal     is    that     the    trial

court    erred       in    failing     to    instruct          the     jury   concerning         the

defense of withdrawal.               Defendant did not specifically request

an instruction about withdrawal at trial.                              Therefore, we review

this issue only for plain error.                       State v. Loftin, 322 N.C. 375,

380,    368     S.E.2d      613,     616    (1988)          (holding        that    plain     error
                                         -8-


standard of review is applied on appeal to unpreserved arguments

concerning jury instructions).

            For error to constitute plain error, a
            defendant    must    demonstrate   that   a
            fundamental error occurred at trial.     To
            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).

Furthermore,    our       Supreme      Court     has   established      that    “[a]

prerequisite to our engaging in a ‘plain error’ analysis is the

determination    that      the    instruction      complained    of    constitutes

‘error’ at all.”      State v. Torain, 316 N.C. 111, 116, 340 S.E.2d

465, 468, cert. denied, 479 U.S. 836, 93 L.Ed.2d 77 (1986).

    Therefore,       we    must       first     determine    whether    the     trial

court’s omission of the withdrawal instruction was erroneous.

During the jury charge, the trial court instructed the jury with

respect to the attempted robbery with a dangerous weapon charge

under a theory of acting in concert.                       The trial court then

instructed     the    jury       on    felony     murder     predicated    on    the

underlying felony of attempted robbery with a dangerous weapon.
                                   -9-


The doctrine of acting in concert provides that

           [i]f two persons join in a purpose to commit
           a crime, each of them, if actually or
           constructively present, is not only guilty
           as a principal if the other commits that
           particular crime, but he is also guilty of
           any other crime committed by the other in
           pursuance of the common purpose . . . or as
           a natural or probable consequence thereof.

State v. Herring, 176 N.C. App. 395, 399, 626 S.E.2d 742, 745

(citation omitted), appeal dismissed and disc. review denied,

360 N.C. 651, 637 S.E.2d 183 (2006), cert. denied, 549 U.S.

1293, 167 L.Ed.2d 342 (2007).        Thus, “[t]he acting in concert

doctrine allows a defendant acting with another person for a

common purpose of committing some crime to be held guilty of a

murder committed in the pursuit of that common plan even though

the defendant did not personally commit the murder.”           State v.

Roache, 358 N.C. 243, 306, 595 S.E.2d 381, 421 (2004).

    North Carolina law does recognize that it is possible for a

defendant to withdraw from a criminal enterprise and thereby

establish an affirmative defense to criminal liability.              See

State v. Wright, 210 N.C. App. 697, 700, 709 S.E.2d 471, 473-74

(2011) (explaining that “[o]nce an individual has joined in a

purpose to commit a crime, it is possible for him to withdraw

under certain circumstances”).           However, in order to actually

withdraw from a criminal enterprise, a defendant must clearly

manifest   such   an   intention    by     plainly   and   unambiguously
                                         -10-


renouncing his participation in the crime to his accomplices.

Id.     Without such an express renunciation of the common plan or

scheme, a defendant will be deemed to have remained an active

participant    in    the    criminal      enterprise     under     the    theory      of

acting in concert.

            Where the perpetration of a felony has been
            entered on, one who had aided or encouraged
            its   commission   cannot   escape  criminal
            responsibility by quietly withdrawing from
            the scene.   The influence and effect of his
            aiding or encouraging continues until he
            renounces the common purpose and makes it
            plain to the others that he has done so and
            that he does not intend to participate
            further.

State v. Spears, 268 N.C. 303, 310, 150 S.E.2d 499, 504 (1966);

see also State v. Wilson, 354 N.C. 493, 508, 556 S.E.2d 272, 282

(2001)    (“Although       Spears    dealt      with   the   law   of    aiding    and

abetting, we hold that for the purposes of acting in concert the

above    statement    is    equally      applicable     to   withdrawal        from    a

common plan.”), overruled on other grounds by State v. Millsaps,

356 N.C. 556, 572 S.E.2d 767 (2002).                     “Any withdrawal by a

defendant may not be done silently in his own mind without any

outward     manifestation           or    communication        to        the    other

perpetrators.”       Wright, 210 N.C. App. at 700, 709 S.E.2d at 474.

      Defendant’s testimony at trial tended to establish that he

was present during at least some part of the discussion and

planning of the robbery.            Furthermore, Defendant testified that
                                                  -11-


(1) he was walking with Jackman towards Rodriguez’s room at the

Inn for the purpose of robbing Rodriguez; (2) after Jackman had

pushed     past    him        into    Rodriguez’s          room    with     his     gun    drawn,

Defendant “punked out” — meaning that he no longer wished to

participate in the robbery; (3) at that point, he turned and

walked     down         the        stairwell         by    Rodriguez’s           room     without

verbalizing or alerting Jackman or any of the others that he was

abandoning        the     plan       of    robbing        Rodriguez;       (4)     he    heard    a

gunshot; (5) shortly thereafter, he met with Jackman, Franklin,

and Boetius in Varra’s room; (6) Jackman admitted that he had

shot Rodriguez; (7) he fled the scene with Boetius; (8) he took

the gun used to shoot Rodriguez out of Boetius’s purse where it

was    hidden;      and       (9)     he    thereafter        sold       that    same     gun    to

Detective Gerald.

       Even if Defendant walked away from Rodriguez’s room and

down   a   flight        of    stairs,          he   did    not    expressly        inform       his

accomplices        that       he     was    withdrawing          from    the     robbery.        In

Wright,     we      rejected              the     defendant’s           argument        that     “he

communicated his withdrawal by physically leaving the scene and

returning     to    the        getaway          vehicle    for    the     remainder       of    the

incident,”        holding          that     the      defendant      “failed        to    verbally

communicate any intent to withdraw to [the other perpetrators]

when he returned to the vehicle” and thus was not entitled to an

instruction on withdrawal.                       Wright, 210 N.C. App. at 701, 709
                                         -12-


S.E.2d at 474.    We believe the same result is required here.

      Because    Defendant         did     not         expressly     renounce      his

participation in the criminal enterprise, he failed to satisfy

the   prerequisites      for   a   withdrawal          instruction.       The   trial

court’s decision not to give such an instruction, therefore, did

not constitute error — much less plain error.                         Consequently,

Defendant’s argument with respect to this issue is overruled.

II. Ineffective Assistance of Counsel

      Defendant’s      final   argument      on    appeal    is    that   his   trial

counsel’s     failure     to       request        an     instruction      concerning

withdrawal amounted to ineffective assistance of counsel.

            To prevail on      a claim of ineffective
            assistance of counsel, a defendant must
            first show that his counsel's performance
            was   deficient  and   then   that   counsel's
            deficient    performance    prejudiced     his
            defense.     Deficient performance may be
            established   by   showing    that   counsel's
            representation   fell   below   an   objective
            standard of reasonableness.     Generally, to
            establish prejudice, a defendant must show
            that there is a reasonable probability that,
            but for counsel's unprofessional errors, the
            result of the proceeding would have been
            different.

State v. Rodelo, ___ N.C. App. ___, ___, 752 S.E.2d 766, 773

(2014) (internal citations and quotation marks omitted).

      As   discussed    above,     the    evidence       Defendant     presented    at

trial was legally insufficient to support a jury instruction

concerning withdrawal.         Consequently, the failure of Defendant’s
                               -13-


trial counsel to request such an instruction cannot logically

support a claim of ineffective assistance of counsel.

                             Conclusion

    For the reasons stated above, we conclude that Defendant

received a fair trial free from error.

    NO ERROR.

    Judges HUNTER, JR. and ERVIN concur.

    Report per Rule 30(e).
