              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA15-1104

                                     Filed: 21 June 2016

Forsyth County, No. 14 CRS 53902

STATE OF NORTH CAROLINA

             v.

JOSHUA WAYNE MARTIN, Defendant.


      Appeal by defendant from judgment entered 14 January 2015 by Judge

Michael D. Duncan in Forsyth County Superior Court. Heard in the Court of Appeals

30 March 2016.


      Kimberly P. Hoppin for defendant.

      Attorney General Roy Cooper, by Assistant Attorney General Andrew O.
      Furuseth, for the State.


      ELMORE, Judge.


      A jury found Joshua Wayne Martin (defendant) guilty of robbery with a

dangerous weapon. On appeal by writ of certiorari, defendant argues that the trial

court committed reversible error and abused its discretion by overruling his

objections during the State’s closing arguments. We hold that defendant received a

trial free from prejudicial error.

                                      I. Background
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                                 Opinion of the Court



      The State’s evidence at trial tended to show the following: On 22 April 2014,

defendant entered the Adams Market convenience store with a shotgun and

demanded money from the manager, Wanda Robinson.            Ms. Robinson complied,

turning over approximately $250.00 from the cash register. Defendant then fled from

the convenience store, leaving Ms. Robinson unharmed. Police identified defendant

as the robbery suspect and arrested him three days later.

      During interrogation, defendant told police that the shotgun used in the

robbery was under a truck bed cover behind his father’s house. Police found the

shotgun in that same location. It was unloaded. Defendant’s father testified that the

shotgun was his, though he did not have ammunition for it and had not fired it since

he was thirteen or fourteen years old. He also testified that he did not know when

defendant took the shotgun.

      At trial, defendant admitted that he “robbed the store.” When asked how he

used the shotgun, defendant testified, “I pointed it towards Ms. Wanda and asked for

the money and then I pointed it away from her and grabbed the money.” According

to defendant, however, the shotgun was unloaded during the robbery. During closing

arguments, both attorneys argued whether the shotgun defendant used during the

robbery could be considered a dangerous weapon. Defendant’s counsel stated on

several occasions that “the law recognizes that an unloaded gun is not a dangerous

weapon.” She also acknowledged that an unloaded gun could be a dangerous weapon



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                                   Opinion of the Court



if it was used to strike someone, “but there is no evidence of that” in this case. Over

defendant’s objections, the prosecution argued to the jury that the shotgun could be

a dangerous weapon even if it was unloaded:

             It is easy to say there is no ammunition in the shotgun. It
             is easy to remove ammunition from the shotgun in the
             three-day period from the robbery until the gun was found,
             but again at the end of the day, as we’ll go through in a few
             moments with the elements of a crime[,] it doesn’t matter
             whether there is ammunition in the shotgun or not.

             MS. TOOMES: Objection.

             THE COURT: Overruled.

             ....

             The sixth and seventh elements, ladies and gentlemen of
             the jury[,] are the key to the case. This is what makes this
             case an Armed Robbery case as opposed to a Common Law
             Robbery case. The sixth element is that at the time the
             defendant obtained the property, at the time they [sic] took
             the money, this defendant was in possession of a dangerous
             weapon. You are going to be told that a dangerous weapon
             is one, once again[,] that is likely to cause death or serious
             bodily injury. You are also going to be told and that
             parenthetical is important is very important as well “ . . . or,
             that it reasonably appeared to the victim that a dangerous
             weapon was being used in which case you may infer the[ ]
             said instrument was what the defendant’s conduct
             represented it to be.”

             Once again we know that this shotgun is a dangerous
             weapon for two reasons: No. 1) because someone can fire
             the shotgun and shoot someone else with a projectile or
             projectiles that would come from the shotgun, and No. 2)
             even if a shotgun is not loaded with any ammunition, it is
             a dangerous weapon in and of itself. You have heard


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                                  Opinion of the Court



             testimony, the barrel of a shotgun is made of steel. It is a
             hard surface. This is not foam. This is not [s]alt. This is
             not plastic. This is not a toy. This [is] real. What the
             defendant used is real. One can imagine, if a person takes
             this shotgun and strikes or assaults someone, especially
             doing so repeatedly, that will likely cause or will cause
             serious bodily injury or death. Our common sense and
             reason tell us that. That is why if the defendant had
             brought in a plastic or toy gun and pointed that at the
             victim, this would not be an armed robbery case, or when
             you bring a real gun and point a shotgun at someone it is
             armed robbery.

             MS. TOOMES: I’m going to object, Your Honor.

             THE COURT: Overruled.

(Emphasis added.)

      Immediately after closing arguments, the trial court instructed the jury that

“[b]oth attorneys in their closing arguments have stated what they believe the law is

in this case. I will instruct you that if their statements in closing arguments differ

from what I am getting ready to tell you the law is then you are to follow the

instructions of the law as I given it [sic] to you.” The court then instructed the jury

on the elements of robbery with a dangerous weapon and common law robbery. As to

the dangerous weapon element, the court explained that

             an object incapable of endangering or threatening lives
             cannot be considered a dangerous weapon. In determining
             whether evidence of a particular instrument constitutes
             evidence of a dangerous weapon, the determinative
             question is whether there is evidence that a person’s life
             was in fact endangered or threatened. Now members of the
             jury, a robbery victim, that is one who is a victim of a


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                                   Opinion of the Court



             robbery, more particularly, an armed robbery, should not
             have to force the issue of whether the instrument being
             used actually is also loaded and can shoot a bullet.

             In an Armed Robbery case the jury may conclude that the
             weapon is what it appeared to the victim to be, a loaded
             gun; if, however, there is any evidence that the weapon was
             in fact not what it appeared to be, that is a loaded gun, to
             the victim, the jury must determine what, in fact, the
             instrument was. It is for the jury to determine the nature
             of the weapon, and [ ] how it was used[,] and [ ] you could,
             but you’re not required to infer from the appearance of the
             instrument[ ] to the victim or alleged victim that it was a
             dangerous weapon.

      On 14 January 2015, the jury found defendant guilty of robbery with a

dangerous weapon, and the trial court sentenced defendant to an active term of sixty-

seven to ninety-three months of imprisonment. Defendant filed a written notice of

appeal on 20 January 2015, though the notice failed to “designate the judgment or

order from which appeal is taken,” as required by Rule 4. N.C. R. App. P. 4(b) (2016).

Despite the timely filing and service on the State, appellate entries were not made

until 6 April 2015. Nevertheless, we allow defendant’s petition for writ of certiorari

pursuant to Rule 21(a)(1) to review the merits of the appeal. N.C. R. App. P. 21(a)(1)

(2016) (“The writ of certiorari may be issued in appropriate circumstances by either

appellate court to permit review of the judgments and orders of trial tribunals when

the right to prosecute an appeal has been lost by failure to take timely action . . . .”);

see State v. Gordon, 228 N.C. App. 335, 337, 745 S.E.2d 361, 363 (2013) (“ ‘Appropriate

circumstances’ may include when a defendant’s right to appeal has been lost because


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                                    Opinion of the Court



of a failure of his or her trial counsel to give proper notice of appeal.” (citing State v.

Hammonds, 218 N.C. App. 158, 163, 720 S.E.2d 820, 823 (2012))).

                                     II. Discussion

      Defendant argues that the trial court erred in overruling his objections to the

statements made by the prosecutor during its closing argument regarding whether

the shotgun was a dangerous weapon.

      “It is well settled that the arguments of counsel are left largely to the control

and discretion of the trial judge and that counsel will be granted wide latitude in the

argument of hotly contested cases.” State v. Williams, 317 N.C. 474, 481, 346 S.E.2d

405, 410 (1986) (citations omitted). Pursuant to N.C. Gen. Stat. § 15A-1230, counsel

             may not become abusive, inject his personal experiences,
             express his personal belief as to the truth or falsity of the
             evidence or as to the guilt or innocence of the defendant, or
             make arguments on the basis of matters outside the record
             except for matters concerning which the court may take
             judicial notice. An attorney may, however, on the basis of
             his analysis of the evidence, argue any position or
             conclusion with respect to a matter in issue.


N.C. Gen. Stat. § 15A-1230(a) (2015). “Counsel are entitled to argue to the jury all

the law and facts in evidence and all reasonable inferences that may be drawn

therefrom, but may not place before the jury incompetent and prejudicial matters and

may not travel outside the record by interjecting facts of their own knowledge or other

facts not included in the evidence.” State v. Syriani, 333 N.C. 350, 398, 428 S.E.2d



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                                   Opinion of the Court



118, 144 (1993) (citing    State v. McNeil, 324 N.C. 33, 48, 375 S.E.2d 909, 918

(1989), sentence vacated, 494 U.S. 1050, 108 L. Ed. 2d 756, on remand, 327 N.C. 388,

395 S.E.2d 106 (1990), cert. denied, 499 U.S. 942, 113 L. Ed. 2d 459 (1991)). “Incorrect

statements of law in closing arguments are improper . . . .” State v. Ratliff, 341 N.C.

610, 616–17, 461 S.E.2d 325, 328–29 (1995) (holding that the trial court erred in

failing “to sustain defendant’s objection and instruct the jury to disregard” the

prosecutor’s improper statement of the law).

      “The standard of review for improper closing arguments that provoke timely

objection from opposing counsel is whether the trial court abused its discretion by

failing to sustain the objection.” State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106

(2002) (citations and quotation marks omitted). “Abuse of discretion results where

the court’s ruling is manifestly unsupported by reason or is so arbitrary that it could

not have been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285,

372 S.E.2d 523, 527 (1988). “[S]tatements contained in closing arguments to the jury

are not to be placed in isolation or taken out of context on appeal. Instead, on appeal

we must give consideration to the context in which the remarks were made and the

overall factual circumstances to which they referred.” State v. Green, 336 N.C. 142,

188, 443 S.E.2d 14, 41 (1994).

      In North Carolina, armed robbery is defined in N.C. Gen. Stat. § 14-87 as

follows:



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                                  Opinion of the Court



             (a) Any person or persons who, having in possession or with
             the use or threatened use of any firearms or other
             dangerous weapon, implement or means, whereby the life
             of a person is endangered or threatened, unlawfully takes
             or attempts to take personal property from another or from
             any place of business, residence or banking institution or
             any other place where there is a person or persons in
             attendance, at any time, either day or night, or who aids or
             abets any such person or persons in the commission of such
             crime, shall be guilty of a Class D felony.

N.C. Gen. Stat. § 14-87(a) (2015). “The essential difference between armed robbery

and common law robbery is that the former is accomplished by the use or threatened

use of a firearm or other dangerous weapon whereby the life of a person is endangered

or threatened.” State v. Lee, 282 N.C. 566, 569, 193 S.E.2d 705, 707 (1973).

      In State v. Allen, 317 N.C. 119, 343 S.E.2d 893 (1986), our Supreme Court

summarized the evidentiary rules in armed robbery cases where the “dangerous

weapon” element is at issue:

             (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


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                                    Opinion of the Court



             or endangering the life of the victim, the armed robbery
             charge should not be submitted to the jury.

Id. at 124–25, 343 S.E.2d at 897.

      Here, defendant argues that the prosecutor made an incorrect statement of the

law when he told the jury that “it doesn’t matter whether there is ammunition in the

shotgun or not.” According to defendant, the prosecutor’s statements turned the

“permissive inference,” whereby the jury was permitted but not required to infer that

the shotgun was a dangerous weapon, into a “mandatory presumption that the

weapon was as it appeared to the victim to be.” Defendant also contends that it was

improper for the prosecutor to tell the jury that “when you bring a real gun and point

a shotgun at someone it is armed robbery,” as that statement, in context, suggests

the shotgun was a dangerous weapon “in and of itself” because it could be used to

“strike or assault” someone. We agree.

      Whether the shotgun was loaded at the time of the robbery was relevant

because “[a]n object incapable of endangering or threatening life cannot be considered

a dangerous weapon.” State v. Frazier, 150 N.C. App. 416, 419, 562 S.E.2d 910, 913

(2002) (citing Allen, 317 N.C. at 122, 343 S.E.2d at 895). In Frazier, we explained

that “where a defendant presents evidence that the weapon used during a robbery

was unloaded or otherwise incapable of firing, such evidence ‘tend[s] to prove the

absence of an element of the offense [of armed robbery].’ ” Id. (quoting State v. Joyner,

67 N.C. App. 134, 136, 312 S.E.2d 681, 682 (1984), aff’d, 312 N.C. 779, 324 S.E.2d 841


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                                  Opinion of the Court



(1985)). If the jury believed defendant’s evidence tending to show that the shotgun

was unloaded, it should have found defendant not guilty of armed robbery.

      In addition, while prior decisions have held that a firearm incapable of firing

may be a dangerous weapon where it was used to strike or bludgeon the victim, e.g.,

State v. Funderburk, 60 N.C. App. 777, 778–79, 299 S.E.2d 822, 823 (1983), there was

no evidence in this case that defendant used the shotgun to strike Ms. Robinson. By

suggesting that the shotgun could have been used to strike her, the prosecutor

ignored “the circumstances of use” from which we “determine whether an instrument

is capable of threatening or endangering life.” State v. Westall, 116 N.C. App. 534,

539, 449 S.E.2d 24, 27 (1994) (citing State v. Pettiford, 60 N.C. App. 92, 298 S.E.2d

389 (1982)); see State v. Alston, 305 N.C. 647, 650, 290 S.E.2d 614, 616 (1982) (“[T]he

determinative question is whether the evidence was sufficient to support a jury

finding that a person’s life was in fact endangered or threatened.” (citing State v.

Moore, 279 N.C. 455, 183 S.E.2d 546 (1971))).

      Although we agree that the prosecutor’s statements were improper, defendant

has failed to show prejudice. N.C. Gen. Stat. § 15A-1442(6), -1443(a) (2015). “[A]s a

general rule, a trial court cures any prejudice resulting from a prosecutor’s

misstatements of law by giving a proper instruction to the jury.” State v. Goss, 361

N.C. 610, 626, 651 S.E.2d 867, 877 (2007) (citing State v. Trull, 349 N.C. 428, 452,

509 S.E.2d 178, 194 (1998), cert. denied, 528 U.S. 835, 145 L. Ed. 2d 80 (1999)). After



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                                  Opinion of the Court



closing arguments, the trial court admonished the jury to follow its own instructions

and not the attorneys’ statements of the law. The court then properly instructed the

jury on the elements of armed robbery, including the permissive inference regarding

the “dangerous weapon” element, and the lesser-included offense of common law

robbery. Based on the steps taken by the trial court, defendant has failed to show

prejudice which would warrant a new trial.

                                  III. Conclusion

      We conclude that defendant received a trial free from prejudicial error. The

trial court took appropriate steps to correct the prosecutor’s misstatements of the law

and otherwise properly instructed the jury on the law and the offenses at issue.

      NO PREJUDICIAL ERROR.

      Judges HUNTER, JR. and DAVIS concur.




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