                                 NO. COA13-1191

                    NORTH CAROLINA COURT OF APPEALS

                            Filed: 6 May 2014


STATE OF NORTH CAROLINA

      v.                                  Mecklenburg County
                                          No. 11CRS219268-69
CHAUNCEY LAJARVIS STERLING,
     Defendant.


      Appeal by defendant from judgments entered 13 June 2013 by

Judge Lisa C. Bell in Superior Court, Mecklenburg County.                  Heard

in the Court of Appeals 20 February 2014.


      Attorney General Roy A. Cooper, III, by Assistant Attorney
      General Daniel P. O’Brien, for the State.

      Marilyn G. Ozer, for defendant-appellant.


      STROUD, Judge.


      Defendant appeals his convictions of first degree murder

and   attempted   robbery   with     a   dangerous      weapon.      For    the

following reasons, we find no error.

                            I.     Background

      Defendant   was   indicted   for   murder   and    attempted    robbery

with a dangerous weapon.         During defendant’s trial he testified

that on 22 April 2011, he “got the feeling” that he “need[ed]

money.”    Defendant had spent the night in his sister’s apartment
                                 -2-
and after she had left for work he went into her room and got

her gun.    Defendant left the apartment and saw Mr. Robert Barber

leave a coffee shop.     Defendant followed Mr. Barber thinking he

could “try to take some money from him.”        Defendant then pulled

out his gun.      According to defendant, Mr. Barber attempted to

take the gun away from him.        Defendant then shot Mr. Barber

twice.     Mr. Barber died from a gunshot wound to the chest.     The

jury found defendant guilty of first degree murder based upon

the felony murder rule and attempted robbery with a firearm.

The trial court entered judgment sentencing defendant to life

imprisonment without parole for the conviction of first degree

murder and arrested judgment on the conviction for attempted

robbery with a dangerous weapon.       Defendant appeals.

                          II.   Photographs

    Defendant turned 18 years old on 22 March 2011, a month

before the crimes committed in this case.          During defendant’s

trial, the State admitted photos of defendant and/or his friends

which defendant claims portray him as a juvenile “pretending to

be [a] rapper[.]”     Defendant argues the photos were irrelevant

and used only to create an impression in the jury that defendant

was a gang member.     Defendant did not object to the photos at

trial but now argues that “the trial court committed plain error
                                      -3-
by allowing the State to introduce and publish photos of the

defendant and his friends when they were juveniles posing for

Facebook photos.”       (Original in all caps.)

           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)

(citations and quotation marks omitted).             We have reviewed the

photos   portraying      defendant    and   others   making   various   hand

gestures   that   the    State    questioned   defendant   about   regarding

gang activity.      Although we are uncertain of the relevance of

these photos, in light of defendant’s own testimony that he

pulled a gun on Mr. Barber because he wanted to “try to take

some money from him” and then shot Mr. Barber twice, we do not

believe any of the photos we have viewed of defendant or his

friends “had a probable impact on the jury’s finding that the

defendant was guilty.”           Id.; see generally State v. Davis, 340

N.C. 1, 12, 455 S.E.2d 627, 632 (noting that “[t]he two elements
                                     -4-
of attempted robbery with a dangerous weapon are: (1) an intent

to commit the substantive offense, and (2) an overt act done for

that purpose which goes beyond mere preparation but falls short

of the completed offense”),          cert. denied, 516 U.S. 846, 133

L.Ed. 2d 83 (1995); State v. Gibbs, 335 N.C. 1, 51, 436 S.E.2d

321, 350 (1993) (noting that “felony murder is committed when a

victim     is    killed   during     the    perpetration    or    attempted

perpetration      of   certain     enumerated   felonies   or    a   felony

committed or attempted with the use of a deadly weapon”), cert.

denied, 512 U.S. 1246, 129 L.Ed. 2d 881 (1994).             This argument

is overruled.

                 III. Second Degree Murder Instruction

    Defendant requested the trial court to instruct the jury on

second degree murder, which the trial court denied.               Defendant

contends that “the trial court erred by denying [his] request to

instruct    on   second   degree   murder   including   lesser   offenses.”

(Original in all caps.)

                 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.     The trial
            court should refrain from indiscriminately
            or   automatically  instructing  on  lesser
            included offenses.   Such restraint ensures
            that the jury’s discretion is channelled so
            that it may convict a defendant of only
                                          -5-
              those    crimes   fairly   supported   by  the
              evidence.
                    The standard for determining whether
              the trial court must instruct on second-
              degree murder as a lesser included offense
              of first-degree murder is as follows:
                    If the evidence is sufficient to
                    fully satisfy the State’s burden
                    of proving each and every element
                    of the offense of murder in the
                    first degree    . . . and there is
                    no   evidence    to   negate   these
                    elements other than defendant’s
                    denial   that   he   committed   the
                    offense, the trial judge should
                    properly    exclude     from    jury
                    consideration the possibility of a
                    conviction    of    second    degree
                    murder.
              Stated differently, the trial court must
              determine whether the State’s evidence is
              positive as to each element of first-degree
              murder and whether there is any conflicting
              evidence relating to any of these elements.

State    v.   Taylor,   362   N.C.   514,       530-31,    669   S.E.2d   239,    256

(2008)    (citations,     quotation        marks,    ellipses,      and   brackets

omitted), cert. denied, 558 U.S. 851, 175 L.Ed. 2d 84 (2009).

    “First-degree        murder      by     reason    of     felony   murder       is

committed when a victim is killed during the perpetration or

attempted      perpetration    of    certain      enumerated      felonies   or    a

felony committed or attempted with the use of a deadly weapon.”

Gibbs, 335 N.C at 51, 436 S.E.2d at 350.                  Defendant’s underlying

felony to the murder was attempted robbery with a dangerous

weapon.
                                     -6-
              The two elements of attempted robbery with a
              dangerous weapon are: (1) an intent to
              commit the substantive offense, and (2) an
              overt act done for that purpose which goes
              beyond mere preparation but falls short of
              the completed offense.    Thus, an attempted
              robbery with a dangerous weapon occurs when
              a person, with the specific intent to
              unlawfully  deprive   another   of  personal
              property by endangering or threatening his
              life with a dangerous weapon, does some
              overt act calculated to bring about this
              result.

Davis, 340 N.C. at 12, 455 S.E.2d at 632 (citations, quotation

marks, and brackets omitted).

    Defendant contends that his testimony established that he

changed his mind about committing the robbery and thus there was

evidence      contradicting   the   underlying     felony   of    his    murder

conviction.       But defendant admitted that he had an intent to

commit robbery when he confessed his goal was to “try to take

some money from [Mr. Barber].”             Defendant also admitted to an

overt   act    when   he   stated   that    he   pulled   out    the    gun   in

furtherance of his intent to rob Mr. Barber.              Thus, defendant’s

testimony alone establishes the elements of attempted robbery,

see id., and his further testimony that he then shot Mr. Barber

twice, whether he had changed his mind about committing the

robbery or not, establishes the elements of first degree murder.

See Gibbs, 335 N.C. at 51, 436 S.E.2d at 350.                    The State’s
                                          -7-
evidence satisfied the requirements for an instruction on first

degree murder, according to Taylor:

            If the evidence is sufficient to fully
            satisfy the State’s burden of proving each
            and every element of the offense of murder
            in the first degree    . . . and there is no
            evidence to negate these elements other than
            defendant’s denial that he committed the
            offense, the trial judge should properly
            exclude   from    jury    consideration  the
            possibility of a conviction of second degree
            murder.

Taylor, 362 N.C. at 530-31, 669 S.E.2d at 256.                           As such, the

trial court did not err in not instructing the jury on the

charge of second degree murder, and this argument is overruled.

                                  IV.    Sentencing

       Lastly, defendant contends that the trial court committed

error because of          the trial court’s         “failure to consider the

defendant’s developmental age before imposition of a sentence of

life without parole violates a defendant’s constitutional right

to freedom from cruel and unusual punishment.”                      (Original in all

caps.)      Defendant      bases    his    argument          on   the   United    States

Supreme    Court   case    of   Miller     v.   Alabama,          567   U.S.    ___,   183

L.Ed.2d 407 (2012), which determines that a sentencing court

must      take     into     consideration           a        juvenile      defendant’s

“chronological      age     and     its    hallmark           features—among       them,

immaturity,      impetuosity,      and    failure       to    appreciate       risks   and
                                         -8-
consequences” before imposing a sentence of life imprisonment

without the possibility of parole.               Id., 567 U.S. at ___, 183

L.Ed. 2d at 423.            But the holding in Miller has no application

to a person who has attained the age of 18 when the crime is

committed:        “We       therefore   hold   that   mandatory    life    without

parole for those under the age of 18 at the time of their crimes

violates the Eighth Amendment’s prohibition on cruel and unusual

punishments.”          Id. at ___, 183 L.Ed. 2d at 414-15 (emphasis

added) (quotation marks omitted).              Defendant’s argument is based

on common sense but not on the law, since it is true that there

was   likely     not    a    substantial   difference    between        defendant’s

level of maturity and understanding on the day before his 18th

birthday as compared to one month later, when he committed these

crimes.

      Yet the law must draw bright-line distinctions based on age

in many areas.          We find it instructive that the same age-based

bright    line    applies       to   capital   punishment.        See    State   v.

Garcell, 363 N.C. 10, 678 S.E.2d 618, cert. denied, 558 U.S.

999, 175 L.Ed. 2d 362 (2009).              Where a defendant who was just

five months beyond his 18th birthday when he committed murder

argued that he should not be subject to capital punishment based

on Roper v. Simmons, our Supreme Court rejected this argument
                                 -9-
and noted that

              [d]efendant’s reliance on     Roper v.
         Simmons is misplaced. The Supreme Court of
         the United States held in Roper that the
         Eighth and Fourteenth Amendments to the
         United States Constitution forbid imposition
         of the death penalty on offenders who were
         under the age of 18 when their crimes were
         committed. The Court created a bright line,
         categorical rule. Furthermore, the Court was
         very   clear  that   the   issue  before  it
         concerned a defendant’s age at the time he
         committed a capital crime, not when his case
         was tried and he was sentenced.

Id. at 53, 678 S.E.2d at 645.      Defendant’s age falls past the

bright line drawn by Miller, which applies only to those who

commit crimes prior to the age of 18.        Miller at ___, 183 L.Ed.

2d at 414-15.    Accordingly, this argument is overruled.

                           V.   Conclusion

    For the foregoing reasons, we find no error.

    NO ERROR.

    Judges CALABRIA and DAVIS concur.
