An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-708
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 4 March 2014


STATE OF NORTH CAROLINA

      v.                                      Caldwell County
                                              No. 10 CRS 053142
                                                  10 CRS 053149
                                                  10 CRS 053337
                                                  10 CRS 053340
DOUGLAS DURANT LIPFORD



      Appeal by Defendant from judgments entered 14 August 2012

by Judge Nathaniel J. Poovey in Caldwell County Superior Court.

Heard in the Court of Appeals 4 November 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Thomas O. Lawton III, for the State.

      M. Alexander Charns, for Defendant.


      DILLON, Judge.


      Douglas     D.   Lipford    (“Defendant”)      appeals     from   judgments

entered convicting Defendant of two counts of robbery with a

dangerous weapon and two counts of conspiracy to commit robbery

with a dangerous weapon, challenging the jury instructions and
                                            -2-
alleging his trial counsel was ineffective.                      We conclude there

was no reversible error at trial.

       The evidence of record tends to show the following:                       In the

fall   of   2010,      there    were   a    string    of    robberies      involving    a

number of retail establishments, including, inter alia, a Dollar

General store and a Domino’s pizza location, in Lenoir, North

Carolina.        On 26 October 2010, Lenoir Police arrested Latanya

Nicole Taylor on an unrelated drug charge, and she ultimately

implicated Defendant, who had been her boyfriend, and a third

person, in the           robberies.         Ten eye-witnesses to the various

robberies testified that Defendant had a firearm, nine of whom

said the gun was a handgun.                However, Ms. Taylor – who was only

present     at   the     robberies     at    the    Dollar    General      and   at   the

Domino’s    -    said,     with   regard     to     the    incident   at   the    Dollar

General, that Defendant was carrying “[a] BB gun[.]”

       On 6 December 2010, Defendant was indicted on seven counts

of conspiracy to commit robbery with a dangerous weapon, four

counts of robbery with a dangerous weapon, and one count of

assault by pointing a gun.             Defendant’s case came on for trial,

and several of the             charges were dismissed           during the course

thereof.         After    deliberating        for    over     eight   hours      on   the

remaining charges, the jury deadlocked on two counts of robbery
                                         -3-
with    a   dangerous      weapon;     however,       the    jury     found    Defendant

guilty of two counts of conspiracy to commit robbery with a

firearm, arising out of the incidents at the Dollar General and

the    Domino’s.        The   jury   also     found    Defendant       guilty     of    two

counts of robbery with a firearm, arising out of incidents at

two    other     retail    establishments.            The     trial    court     entered

judgments      consistent      with     the     jury’s       verdicts,        sentencing

Defendant to terms of incarceration with respect to each of the

four convictions, with the sentences to run consecutively.                             From

these judgments, Defendant appeals.

               I: Jury Instruction: Lesser Included Offense

       In Defendant’s first argument, he contends the trial court

committed plain error by failing to instruct the jury on common

law    robbery    and     conspiracy    to    commit        common    law     robbery    as

lesser included offenses, based on Ms. Taylor’s testimony that a

BB gun – and not a “dangerous weapon” - was used in at least

some of the incidents.               We dismiss this issue, as Defendant

invited error.

       “An instruction on a lesser-included offense must be given

only if the evidence would permit the jury rationally to find

defendant guilty of the lesser offense and to acquit him of the

greater.”      State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767,
                                           -4-
771 (2002).       The test for whether to give a jury instruction on

a lesser-included offense “is the presence, or absence, of any

evidence in the record which might convince a rational trier of

fact   to   convict      the      defendant      of   a   less   grievous     offense.”

State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981)

(citation omitted).

       In this case, two of Defendant’s four convictions were for

robbery with a firearm.              “The critical difference between armed

robbery     [under     N.C.       Gen.   Stat.    §   14-87(a)]     and   common      law

robbery     is    that      the   former   is     accomplished      by    the   use   or

threatened use of a [firearm or other] dangerous weapon,” while

“[t]he use or threatened use of a [firearm or other] dangerous

weapon    is     not   an    essential     element        of   common   law   robbery.”

State v. Peacock, 313 N.C. 554, 562, 330 S.E.2d 190, 195 (1985).

       Defendant was also convicted of two counts of conspiracy to

commit robbery with a firearm.                    “A criminal conspiracy is an

agreement between two or more persons to do an unlawful act or

to do a lawful act in an unlawful way or by unlawful means.”

State v. Tabron, 147 N.C. App. 303, 306, 556 S.E.2d 584, 586

(2001), disc. review improvidently allowed, 356 N.C. 122, 564

S.E.2d 881 (2002) (citation and quotation marks omitted).                             “To

constitute a conspiracy it is not necessary that the parties
                                                -5-
should have come together and agreed in express terms to unite

for    a   common    object:          A     mutual,      implied     understanding         is

sufficient,     so     far       as       the    combination       or      conspiracy     is

concerned, to constitute the offense.”                         State v. Bindyke, 288

N.C.   608,    615-16,     220        S.E.2d      521,   526     (1975)       (emphasis    in

original).     This Court has held that when a defendant is charged

with conspiracy to commit armed robbery, and the evidence of the

firearm’s     operability        is       conflicting,     the     trial      court   should

also   instruct      the   jury        on    conspiracy     to     commit      common     law

robbery.      State v. Carter, 177 N.C. App. 539, 541, 629 S.E.2d

332, 335, aff’d per curiam, 361 N.C. 108, 637 S.E.2d 537 (2006)

(holding the trial court committed plain error by failing to

instruct the jury on the offense of conspiracy to commit common

law robbery on conflicting evidence regarding whether the gun

“was real or fake[,]” and reversing the defendant’s conviction

and remanding for a new trial); but see State v. Lawrence, 365

N.C. 506, 519, 723 S.E.2d 326, 335 (2012) (stating that “the

trial court’s charge on conspiracy to commit robbery with a

dangerous     weapon       was        erroneous,”        because        the    instruction

“erroneously omitted the element that the weapon must have been

used to endanger or threaten the life of the victim[,]” but

holding that the error in the instruction did not constitute
                                          -6-
plain     error,    because      “[i]n    light     of    the        overwhelming       and

uncontroverted       evidence,     [the]        defendant    cannot         show    that,

absent    the    error,    the    jury    probably       would       have   returned      a

different verdict”).

    The determination of whether to give an instruction on the

lesser-included      offense      in   cases     involving       a    question     as    to

whether    a    “firearm   or     other    dangerous      weapon”        was   involved

depends on the evidence presented in each case.                             The Supreme

Court has delineated three scenarios:

               The rules are: (1) When a robbery is
               committed with what appeared to the victim
               to be a firearm or other dangerous weapon
               capable of endangering or threatening the
               life of the victim and there is no evidence
               to the contrary, there is a mandatory
               presumption that the weapon was as it
               appeared to the victim to be. (2) If there
               is some evidence that the implement used was
               not a firearm or other dangerous weapon
               which could have threatened or endangered
               the life of the victim, the mandatory
               presumption   disappears   leaving   only   a
               permissive inference, which permits but does
               not require the jury to infer that the
               instrument used was in fact a firearm or
               other dangerous weapon whereby the victim's
               life was endangered or threatened. (3) If
               all the evidence shows the instrument could
               not have been a firearm or other dangerous
               weapon capable of threatening or endangering
               the life of the victim, the armed robbery
               charge should not be submitted to the jury.
                                    -7-
State v. Allen, 317 N.C. 119, 124-25, 343 S.E.2d 893, 897 (1986)

(holding that the evidence presented created only a permissive

inference that the instrument used was in fact a firearm or

other dangerous weapon, allowing the jury to decide whether the

instrument threatened or endangered life, and thus, requiring

the instruction on the lesser included offense of common law

robbery should the jury reject the inference of the instrument’s

dangerous properties).

    In a case involving a BB gun, in particular, this Court has

held that there must be evidence in the record of a BB gun’s

capability to inflict death or great bodily injury for a jury to

find that a BB gun is a dangerous weapon.        State v. Fleming, 148

N.C. App. 16, 25, 557 S.E.2d 560, 565 (2001).           Our Supreme Court

explained    the   necessity   of   the   instruction    on   the   lesser-

included offense of common law robbery when there is evidence

that the defendant used a BB gun:

            In determining whether evidence of the use
            of   a   particular   instrument   constitutes
            evidence of use of “any firearms or other
            dangerous weapon, implement or means” within
            the    prohibition   of   G.S.    14-87,   the
            determinative    question   is   whether   the
            evidence was sufficient to support a jury
            finding that a person’s life was in fact
            endangered or threatened.      Employing this
            test, we determine that the testimony by
            Robinson that the rifle he used during the
            robbery was a Remington pellet gun was
                                       -8-
              sufficient to support a jury finding that
              the lives of the victims here in fact were
              endangered or threatened by his possession,
              use or threatened use of the rifle. The
              testimony of Robinson, on the other hand,
              that the rifle was a BB rifle constituted
              affirmative evidence to the contrary and
              indicated that the victims’ lives were not
              endangered or threatened in fact by his
              possession, use or threatened use of the
              rifle. This latter statement by Robinson was
              affirmative testimony tending to prove the
              absence of an element of the offense charged
              and required the submission of the case to
              the jury on the lesser included offense of
              common law robbery as well as the greater
              offense of robbery with firearms or other
              dangerous weapons.

State    v.   Alston,   305   N.C.   647,       650-51,   290    S.E.2d   614,   616

(1982) (citations omitted) (emphasis in original).

    In the present case, we believe                    there is evidence         from

which the jury could reasonably infer that the weapon used by

Defendant in at least some of the incidents, particularly the

Dollar    General   and   the   Domino’s,        was    either   a   BB   gun   or   a

firearm.      For instance, the victim and two other witnesses at

the Domino’s robbery stated that Defendant had a firearm.                       Also,

a witness to one of the robberies testified that the gun was

“close enough for me to look down the barrel and see the threads

on it[.]”      Only Ms. Taylor testified that the gun used in the

Dollar    General   conspiracy       was    a    BB    gun;   however,    she    also

affirmed that she was with Defendant in the car at both the
                                              -9-
Dollar General and the Domino’s and that she “[n]ever seen (sic)

[Defendant] with any other guns[.]”                       She also testified that she

was with Defendant when the gun was destroyed “[r]ight after”

the incident at Domino’s.                    From these testimonies,                       the jury

could reasonably infer that Defendant only had one gun, and –

depending upon whether the jury believed Ms. Taylor or the other

eye-witnesses          –    that     the     gun     Defendant         possessed            at     the

Domino’s, the Dollar General, and the other locations was either

a BB gun or, respectively, a real gun.                         Accordingly, we believe,

that trial court was required to submit a common law robbery

instruction        and     a     conspiracy        to     commit       common-law            robbery

instruction to the jury.                See Carter, 177 N.C. App. at 541, 629

S.E.2d at 335.

      However, though we believe the trial court committed error,

we    must   consider          the   State’s       argument          that       the       error    was

invited.          “A    defendant       is   not     prejudiced            .    .     .    by     error

resulting from his own conduct.”                     N.C. Gen. Stat. § 15A-1443(c)

(2011).      In the context of jury instructions, a defendant who

consents     to    the     manner       in   which       the       trial       court      gives    the

instructions       to      the   jury      “will    not       be    heard       to    complain      on

appeal when the trial court has instructed adequately on the law

and    in    a    manner       requested      by        the    defendant.”                State      v.
                                        -10-
Wilkinson, 344 N.C. 198, 235-36, 474 S.E.2d 375, 396 (1996)

(citation    and     quotation    marks     omitted).        “[A]      defendant      who

invites   error      has    waived    his   right     to   all   appellate       review

concerning   the      invited    error,     including      plain       error    review.”

State v. Hope, __ N.C. App. __, __, 737 S.E.2d 108, 111 (2012),

disc.   review       denied,    366   N.C.     438,    736   S.E.2d       493    (2013)

(citation and quotation marks omitted).

    During the charge conference in this case, Defense counsel,

counsel for the State, and the trial court had a discussion

pertaining      to    an     instruction     on     common       law     robbery      and

conspiracy to commit common law robbery in which counsel for the

State indicated that he would not necessarily “be opposed to a

common law instruction.”             However, Defense Counsel withdrew his

request   for      the     lesser-included      offense,     stating,          “for   the

record I would withdraw my request that common law robbery be

submitted in this case, because I had asked for it and now I

would withdraw that in light of the further reflection[.]”                            The

Court asked defense counsel the following question:

            COURT: As I understood or the end of our
            conversation   on Friday, you  were  not
            requesting it.

            MR. PEARCE: That is correct, Your Honor.
            We’re not requesting a common law robbery
            charge.
                                      -11-
           COURT: Either in the conspiracy or in the
           underlying[?]

           MR. PEARCE: In none of the six issues that
           will be submitted. We’re not asking for
           that, yes, sir.

Defense counsel also made clear that his “whole defense” was

that Defendant was not the perpetrator, because “the elements of

the crime are almost given[.]”           We believe that by withdrawing

his   request   for   the   lesser-included     offense,    by   agreeing   to

instructions    without     the   lesser-included      offense   instruction,

and by declining, a second time, the lesser-included offense

instruction, Defendant invited error in this case.               See State v.

Sierra, 335 N.C. 753, 760, 440 S.E.2d 791, 795 (1994) (holding

that the defendant invited error by “stat[ing] a total of three

times that he did not want such an instruction . . . and was

contrary to defendant’s theory of the case”); Hope, __ N.C. App.

at __, 737 S.E.2d at 111 (stating that “a defendant who invites

error has waived his right to all appellate review concerning

the   invited   error,    including    plain   error    review”);   State   v.

Wilkinson, 344 N.C. 198, 235-36, 474 S.E.2d 375, 396 (1996)

(holding the defendant invited error when he consented to the

manner in which the trial court gave the instructions to the

jury and, when asked specifically, said, “[t]hat will be fine”).

Therefore, we dismiss this argument.
                                -12-
       II: Jury Instruction: Definition of Deadly Weapon

    In Defendant’s second argument, he contends the trial court

committed plain error by failing to define “dangerous weapon” to

the jury.   We disagree.

    We have held that, in a prosecution for robbery with a

firearm or other deadly weapon, when evidence is conflicting

regarding whether the instrument used was actually a firearm or

dangerous weapon, “the jury must be properly instructed with a

definition of a dangerous weapon.”     Fleming, 148 N.C. App. at

26, 557 S.E.2d at 566.     In this case, we believe that even if

the trial court erred by failing to define “dangerous weapon” in

its instructions to the jury – even where we have held that the

trial court’s failure to instruct on lesser included offenses

was the result of Defendant’s invited error – we do not believe

that this failure     to define “dangerous weapon”   rises to the

level of plain error.

    “Under the plain error rule,” the “defendant must convince

this Court not only that there was error, but that absent the

error, the jury probably would have reached a different result.”

State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993)

(citation omitted).     Defendant’s argument in his brief that he

was prejudiced consists of one sentence, in which he states that
                                           -13-
there may have been a different result because this is a “close

case” and the jury “deliberated for a lengthy time.”                              After our

thorough        review    of     the    record,        we    believe        the     evidence

incriminating Defendant was such that, even if there was error

pertaining to the trial court’s failure to instruct the jury on

the definition of dangerous weapon, there was no plain error.

Though   it      is   possible     that    the    jury       may     have   believed      Ms.

Taylor’s testimony that the gun was a BB gun, Defendant has

failed     to     show   that     the     jury    probably         believed       her,     and

disbelieved       the    other    witnesses.           Accordingly,         Defendant      has

failed to meet his burden of showing that the jury probably

would have reached a different result had the trial court given

the instruction on the definition of deadly weapon.                               See State

v.   Carter,      366    N.C.    496,     500,    739       S.E.2d    548,    552       (2013)

(stating that there was no plain error where the “[d]efendant

has not shown that ‘the jury probably would have returned a

different verdict’ if the trial court had provided the . . .

instruction”) (internal citation omitted).

                  III:    Ineffective Assistance of Counsel

      In Defendant’s third argument on appeal, he contends he

received        ineffective      assistance       of     counsel       when       his    trial

counsel withdrew his request that the trial court instruct on
                                         -14-
common law robbery and conspiracy to commit common law robbery,

and failed to request an instruction on the definition of deadly

weapon.        We believe that the cold record is not sufficient to

allow     us    to   decide    this     issue.         Accordingly,     we    dismiss

Defendant’s claim without prejudice to his “right to reassert

[this claim] during a subsequent MAR proceeding.”                            State v.

Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001).

                         IV: Amendment to Indictments

      In Defendant’s fourth argument on appeal, he contends the

trial court erred by allowing the indictments to be amended.                         We

disagree.

      In this case, the trial court ruled that “[t]he motion to

amend    the     indictment      to    allege    the    victim’s     name    as    Paul

Bringhurst Waterbury rather than Paul Bringhurst is allowed.”

The     trial    court    also    allowed       the    motion   to     “amend       [the

indictments] to Douglas Lipford – Douglas Durant Lipford the

second.”        Defendant argues the foregoing was error.                This Court

has held such changes are not improper amendments and do not

substantially alter the charge set forth in the indictment.                          See

State v. Hewson, 182 N.C. App. 196, 211, 642 S.E.2d 459, 469,

disc.    review      denied,     361    N.C.    572,    651   S.E.2d    229       (2007)
                                     -15-
(changing   “Gail   Hewson   Tice”    to    “Gail   Tice   Hewson”).   This

argument is without merit.

    NO ERROR in part; DISMISSED in part.

    Chief Judge MARTIN and Judge STEELMAN concur.

    Report per Rule 30(e).
