{ "id": 11220642, "name": "STATE OF NORTH CAROLINA v. JARVIS S. HASTY and HARVEY LEE STEWART", "name_abbreviation": "State v. Hasty", "decision_date": "1999-06-15", "docket_number": "No. COA98-1098", "first_page": "563", "last_page": "573", "citations": [ { "type": "official", "cite": "133 N.C. App. 563" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "501 S.E.2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "77", "parenthetical": "holding that plea of no contest followed by issuance of a prayer for judgment was a \"conviction\" for purposes of provisions of the North Carolina Administrative Code governing the certification of police officers" } ], "opinion_index": 0 }, { "cite": "348 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659885 ], "year": 1998, "pin_cites": [ { "page": "576-77", "parenthetical": "holding that plea of no contest followed by issuance of a prayer for judgment was a \"conviction\" for purposes of provisions of the North Carolina Administrative Code governing the certification of police officers" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0573-01" ] }, { "cite": "448 S.E.2d 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "800-01" } ], "opinion_index": 0 }, { "cite": "337 N.C. 779", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551016 ], "year": 1994, "pin_cites": [ { "page": "782" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0779-01" ] }, { "cite": "38 L. Ed. 2d 235", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1973, "opinion_index": 0 }, { "cite": "414 U.S. 1000", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11788834, 11788679, 11788649, 11788937, 11789003, 11788777, 11789072, 11788529, 11788888, 11788601, 11788732 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/us/414/1000-07", "/us/414/1000-04", "/us/414/1000-03", "/us/414/1000-09", "/us/414/1000-10", "/us/414/1000-06", "/us/414/1000-11", "/us/414/1000-01", "/us/414/1000-08", "/us/414/1000-02", "/us/414/1000-05" ] }, { "cite": "194 S.E.2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "808" } ], "opinion_index": 0 }, { "cite": "283 N.C. 17", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557587 ], "year": 1973, "pin_cites": [ { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0017-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-96", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "year": 1997, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "378" }, { "page": "378", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] } ], "analysis": { "cardinality": 740, "char_count": 21005, "ocr_confidence": 0.773, "pagerank": { "raw": 2.0802775198961433e-07, "percentile": 0.7589656771495172 }, "sha256": "2458ad39d10b84408e4a43d0886c1add926ca5fd035312d6cde5abecd63c6ef6", "simhash": "1:eba7d27af72ef479", "word_count": 3603 }, "last_updated": "2023-07-14T19:41:36.377256+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and TIMMONS-GOODSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JARVIS S. HASTY and HARVEY LEE STEWART" ], "opinions": [ { "text": "HORTON, Judge.\nThe issues in this case are whether: (I) the trial court committed plain error in its charge to the jury for (A) robbery with a firearm, and (B) attempted robbery with a firearm; and (II) the trial court committed plain error in determining defendant Hasty\u2019s sentencing level.\nI. Jury Instructions\nWe note initially that neither defendant objected at trial to any portion of the instructions to the jury as required by Rule 10(b)(2) of the Rules of Appellate Procedure. We are asked by defendants to consider whether the trial court committed \u201cplain error\u201d in its jury instructions. In adopting the plain error rule, our Supreme Court defined plain error as an error so prejudicial that it amounts to a denial of a fair trial to the defendant. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). In Odom, however, the Supreme Court also pointed out that:\nThe adoption of the \u201cplain error\u201d rule does not mean that every failure to give a proper instruction mandates reversal regardless of the defendant\u2019s failure to object at trial. To hold so would negate Rule 10(b)(2) which is not the intent or purpose of the \u201cplain error\u201d rule. The purpose of Rule 10(b)(2) is to encourage the parties to inform the trial court of errors in its instructions so that it can correct the instructions and cure any potential errors before the jury deliberates on the case and thereby eliminate the need for a new trial. Indeed, even when the \u201cplain error\u201d rule is applied, \u201c[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.\u201d\nId. at 660-61, 300 S.E.2d at 378 (citations omitted).\nIn this case, the State\u2019s evidence tended to show that defendants were acting in concert to commit, or attempt to commit, robbery while each of the defendants offered evidence of an alibi, and denied any complicity in the incident. Each defendant now contends that the charge of the trial court would allow the jury (A) to convict both defendants of the armed robbery of Downs if the jury found that either committed the armed robbery, and (B) to convict both defendants of the attempted armed robbery of Keeler and Addeo if the jury found that either of them attempted to commit armed robbery. We disagree for the reasons set out below.\nA. Jury Charge as to Armed Robbery\nOn the charge of armed robbery, the trial court initially charged the jury as follows:\nThe Defendants have been accused of robbery with a firearm, which is the taking and carrying away the personal property of another from his person or in his presence without his consent, by endangering or threatening a person\u2019s life with a firearm, the taker knowing that he was not entitled to take the property and intending to deprive another of its use permanently.\nNow, I charge that for you to find the Defendant guilty of robbery with a firearm, the State must prove seven things beyond a reasonable doubt:\nFirst, that the Defendants took property from the person of another in his presence.\nSecond, that the Defendants carried away the property.\nThird, that the person did not voluntarily consent to the taking and carrying away of the property.\nFourth, that the Defendant knew he was not entitled to take the property.\nFifth, that at the time of the taking, the Defendants intented [sic] to deprive that person of its use permanently.\nSixth, that the Defendants had a firearm in their possession at the time they obtained the property.\nAnd seventh, that the Defendant obtained the property by endangering or threatening the life of that person with a firearm.\nSo I charge that if you find from the evidence beyond a reasonable doubt that on or about the alleged date, either Defendant, acting either by himself or acting together with the other Defendant, had in their possession a firearm, and took and carried away the property from the person or presence of a person without his voluntary consent by endangering or threatening his life with the use or threatened use of a firearm, the Defendant or each of them knowing that he was not entitled to take the property and intending to deprive the person of its use permanently, it would be your duty to return a verdict of guilty of robbery with a firearm.\nHowever, 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.\nAfter the jury retired to deliberate on the charges, it submitted three questions in writing to the trial court:\nWhat does the law about the two being together mean? Are they being tried jointly or separately? Can you find one guilty and the other not guilty?\nThe following colloquy then occurred between the trial court and counsel for the State and defendants before the jury returned to the courtroom:\nThe Court: Looks to me like I need to tell them that each Defendant, even though they\u2019re being tried together, the Jury can find either one guilty of any charge or not guilty of any charge.\nI also think I need to read them the \u201cacting in concert,\u201d the \u201crobbery with firearm,\u201d and the \u201cgeneral attempt\u201d charge together again and just let that be it.\nWhat do you all have to say?\nMr. Frazier: Yes, sir. I would concur Your Honor.\nMs. Thomas: I would concur.\nMs. Mitchell: State agrees.\nThe Court: I don\u2019t think I need to give the whole \u2014 what they\u2019re asking for is \u201cacting in concert.\u201d So I\u2019ll read the \u201cacting in concert,\u201d the \u201crobbery with firearm,\u201d and the \u201cattempt\u201d charges again.\nMr. Frazier: And you will explain, Your Honor, they can\u2014\nThe Court: I will tell them that the \u2014 the two are on trial together, but that each person is facing three charges each. They can be found guilty of any charge or not guilty of any charge.\nIs there anything else that I need to say about that?\nMr. Frazier: No, sir.\nMs. Thomas: No, Your Honor.\nThe Court: Miss Mitchell, what do you say?\nMs. Mitchell: Your Honor, I think your approach is about as proper as you can get in light of the questions being asked. I don\u2019t think there\u2019s really anything else that can be said to the Jury.\nThe Court: Well, I don\u2019t want to say any more than I have to, but I\u2019ve got to answer the question.\nBring them in.\nIn answering the three questions presented by the jury, the trial court stated the following:\nYou have six verdict forms that were sent back to you. Each of the two Defendants are being tried for three offenses each, one count of robbery and two counts of attempted robbery. You can find either of the two Defendants either/or not guilty of any charge. Any of the charges.\nNow, I want to read a portion of the charge that I previously gave you. And I would ask you to listen up as well as you can.\nFor a person to be guilty of a crime, it is not necessary that he himself do all of the acts necessary to constitute the crime. If two or more persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty of the crime of robbery with a firearm or attempted robbery with a firearm if the other commits the crime, but he is also guilty of any other crime committed by the other in per-suance [sic] of a common purpose to commit robbery with a firearm or attempted robbery with a firearm or a natural or probable consequence thereof.\nThe Defendants have been accused of robbery with a firearm, which is taking and carrying away the personal property of another from his person or in his presence without his consent, by endangering or threatening a person\u2019s life with a firearm, the taker knowing that he was not entitled to take the property and intending to deprive another of its use permanently.\nNow, I charge that for you to find the Defendants guilty \u2014 or either Defendant guilty of robbery with a firearm, the State must prove seven things beyond a reasonable doubt:\nFirst, that the Defendant took property from the person of another or in his presence.\nSecond, that the Defendant carried away the property.\nThird, that the person did not voluntarily consent to the taking and carrying away of the property.\nFourth, that the Defendant knew he was not entitled to take the property.\nFifth, that at the time of the taking, the Defendant intended to deprive that person of its use permanently.\nSixth, that the Defendant had a firearm in his possession at the time he obtained the property.\nAnd seventh, that the Defendant obtained the property by endangering or threatening the life of that person by a firearm.\nSo I charge that if you find from the evidence beyond a reasonable doubt that on or about the alleged date, either the Defendant, acting either by himself or acting together with the other Defendant, had in his possession a firearm, and took and carried away property from the person or presence of a person without his voluntary consent, by endangering or threatening his life with the use or threatened use of a firearm, the Defendant knowing that he was not entitled to take the property and intending to deprive that person of its use permanently, it would be your duty to return a verdict of guilty of robbery with a firearm.\nHowever, 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.\nThe jury retired to resume its deliberations, and eventually returned verdicts of guilty as to each defendant on the charge of armed robbery of Downs. Defendants argue that the trial court did not cure its original misleading and erroneous instruction as its second instruction was also confused. Defendants specifically point to the trial court\u2019s statement that, \u201cYou can find either of the two Defendants either/or not guilty of any charge. Any of the charges.\u201d Indeed, the quoted portion of the charge is not artfully stated, but the State suggests that either it is a lapsus linguae on the part of the trial court, or an erroneous transcription by the court reporter.\nWe agree with the State that it is unlikely that the trial transcript accurately reports the statement made by the able trial court, particularly because shortly after making the statement in question, the trial court again gave counsel an opportunity to object or offer corrections to his restatement of the charge. All the attorneys answered in the negative when asked if they had corrections or objections.\nFurthermore, the statement in question must be read in the context of the entire initial charge and the restatement by the trial court. When both the charge and restatement are taken as a whole, we do not believe that any rational juror could have been misled. The restatement made it clear that in order to convict each defendant it had to find that the defendant either committed armed robbery on his own, or that the defendant acted in concert with the other defendant to commit armed robbery. Indeed, the trial court\u2019s instruction to the jury on acting in concert makes the point abundantly clear.\nB. Jury Charge as to Attempted Armed Robbery\nAs to the jury instructions on the charges of attempted armed robbery, we have much the same situation. The trial court initially gave the jury the following mandate on the charges:\nSo I charge that if you find from the evidence beyond a reasonable doubt that on or about the alleged date, either Defendant, acting either by himself or acting together with the other Defendant, intended to commit robbery with a firearm and performed an act or acts which were designed to bring this about, but which fell short of the completed offense, it would be your duty to return a verdict of guilty of attempted \u2014 attempted robbery with a firearm as to that Defendant.\n(Emphasis added.)\nAfter the jury returned with the questions set out above, the trial court restated the charge as to attempted armed robbery as set forth above. Read fairly, the charge makes it clear that the jury may return a verdict of guilty as to either of the defendants only if it finds beyond a reasonable doubt that the defendant either acted by himself to attempt to rob the victims, or that the defendant acted in concert with the other defendant. That is a correct and adequate statement of the applicable law, particularly when read together with the trial court\u2019s instruction on acting in concert. The assignments of error of each defendant as to the jury instructions are overruled.\nII. Sentencing Factors\nDefendant Hasty next argues that the trial court erred in considering him to have a prior conviction of possessing cocaine with the intent to sell or deliver it. At the time of the offenses which are the subject of this appeal, defendant Hasty was on probation under the provisions of N.C. Gen. Stat. \u00a7 90-96(a) (1997). That statute provides in pertinent part as follows:\nWhenever any person who has not previously been convicted of any offense under this Article or under any statute of the United States or any state relating to those substances included in Article 5 or 5A of Chapter 90 or to that paraphernalia included in Article 5B of Chapter 90 pleads guilty to or is found guilty of (i) a misdemeanor under this Article by possessing a controlled substance included within Schedules II through VI of this Article or by possessing drug paraphernalia as prohibited by G.S. 90-113.21, or (ii) a felony under G.S. 90-95(a)(3) by possessing less than one gram of cocaine, the court may, without entering a judgment of guilt and with the consent of such person, defer further proceedings and place him on probation upon such reasonable terms and conditions as it may require. . . . Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge such person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime including the additional penalties imposed for second or subsequent convictions under this Article.\nId.\nAt the time of defendant Hasty\u2019s conviction and sentencing on the charges involved herein, he was still on probation under \u00a7 90-96, and thus argues he had not been \u201cconvicted\u201d for the purposes of the Structured Sentencing Act. The Structured Sentencing Act defines \u201cprior conviction\u201d as follows:\nA person has a prior conviction when, on the date a criminal judgment is entered, the person being sentenced has been previously convicted of a crime[.]\nN.C. Gen. Stat. \u00a7 15A-1340.il(7) (1997). N.C. Gen. Stat. \u00a7 15A-1331(b) provides that \u201c[f]or the purpose of imposing sentence, a person has been convicted when he has been adjudged guilty or has entered a plea of guilty or no contest.\u201d (Emphasis added.)\nWe believe that the statute is clear when it states that \u201cconviction\u201d includes the entry of a plea of guilty. \u201cIt is settled law in this State that a plea of guilty, freely, understandingly, and voluntarily entered, is equivalent to a conviction of the offense charged.\u201d State v. Watkins, 283 N.C. 17, 27, 194 S.E.2d 800, 808, cert. denied, 414 U.S. 1000, 38 L. Ed. 2d 235 (1973). Defendant Hasty\u2019s plea to the cocaine charge in question is included in the record on appeal, and reflects that he pled guilty to the charge on 25 June 1997 \u201cfreely, voluntarily, and understandingly\u201d and was placed on \u201c90-96\u201d probation on certain conditions. Our Supreme Court has also held that an entry of \u201cprayer for judgment continued\u201d following a plea of guilty by a criminal defendant may amount to a \u201cconviction.\u201d State v. Sidberry, 337 N.C. 779, 782, 448 S.E.2d 798, 800-01 (1994). See also, Britt v. North Carolina Sheriffs\u2019 Educ. And Training Stds. Comm\u2019n, 348 N.C. 573, 576-77, 501 S.E.2d 75, 77 (1998) (holding that plea of no contest followed by issuance of a prayer for judgment was a \u201cconviction\u201d for purposes of provisions of the North Carolina Administrative Code governing the certification of police officers). Based on the plain language of the statute, and the holdings of our Supreme Court in Sidberry and Watkins, we conclude that defendant Hasty\u2019s entry of a plea of guilty to possession of cocaine followed by probation under the provisions of N.C. Gen. Stat. \u00a7 90-96 was a \u201cconviction\u201d for the purposes of the Structured Sentencing Act.\nWe do not believe this result is unjust. A defendant who is placed on probation pursuant to the provisions of N.C. Gen. Stat. \u00a7 90-96 is given the opportunity to comply with the conditions and have the charges against him dismissed. \u201cDischarge and dismissal under this section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of this section ...N.C. Gen. Stat. \u00a7 90-96. Unfortunately for defendant Hasty, within a few months of being placed on probation, he violated its terms by commission of the felonies involved herein, thereby violating the express condition that he \u201ccommit no criminal offense in any jurisdiction.\u201d\nDefendant\u2019s contention that the result of assessing a point against him for the cocaine charge is contrary to the stated purpose and intent of N.C. Gen. Stat. \u00a7 90-96 because the charge might later be discharged and dismissed by the trial court, and thus he would not have a \u201cconviction\u201d for the cocaine offense, is unpersuasive. Under these circumstances, we do not agree that the legislative intent apparent in the enactment of N.C. Gen. Stat. \u00a7 90-96 is thwarted. This assignment of error, therefore, is overruled.\nThere being no prejudicial error in the trial of either defendant, their convictions are affirmed.\nNo error.\nJudges LEWIS and TIMMONS-GOODSON concur.", "type": "majority", "author": "HORTON, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General John G. Barnwell, for the State.", "Public Defender Isabel Scott Day, by Assistant Public Defender Julie Ramseur Lewis, for defendant appellant Jarvis S. Hasty.", "Grant Smithson for defendant appellant Harvey Lee Stewart." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JARVIS S. HASTY and HARVEY LEE STEWART\nNo. COA98-1098\n(Filed 15 June 1999)\n1. Criminal Law\u2014 instructions \u2014 acting in concert\nThere was no plain error in a prosecution of two defendants for armed robbery and attempted armed robbery where the State\u2019s evidence tended to show that defendants were acting in concert and each defendant contends that the instructions would allow the jury to convict both defendants if either committed the robbery. It is unlikely that the trial transcript accurately reports the statement made by the court, particularly because the court gave counsel an opportunity to object or offer corrections shortly after making the statement in question and all the attorneys answered in the negative. Furthermore, taking the entire initial charge and the restatement after a question as a whole, a rational juror would not have been misled.\n2. Sentencing\u2014 structured \u2014 prior conviction \u2014 offense committed while on probation\nThe trial court did not err when sentencing defendant Hasty for armed robbery and attempted armed robbery by considering him to have a prior conviction for possession of cocaine with intent to sell or deliver where defendant was on probation under N.C.G.S. \u00a7 90-96(a), which provides that proceedings against the defendant will be dismissed and not considered a conviction upon the fulfillment of terms and conditions. Defendant\u2019s entry of a guilty plea to possession of cocaine followed by probation was a conviction for purposes of the Structured Sentencing Act and defendant\u2019s contention that the result is contrary to the purpose of N.C.G.S. \u00a7 90-96 is unpersuasive; within a few months of being placed on probation, defendant violated its terms by commission of these felonies.\nAppeal by defendants from judgments entered 23 March 1998 by Judge Richard L. Doughton in Mecklenburg County Superior Court. Heard in the Court of Appeals 28 April 1999.\nOn the evening of 7 September 1997, Thomas Downs (Downs), Shawn Keeler (Keeler), and David Addeo (Addeo) were walking home from a party when they were accosted by three men who demanded their money. At gunpoint, the men took Downs\u2019 wallet (which held his student ID, his driver\u2019s license, and his credit cards), $16.00 in cash, and some change. During the encounter, Addeo threw his credit cardholder on the ground. The robbers then ran away from the scene. The victims reported the incident to police and gave statements to the investigating officers.\nJarvis S. Hasty and Harvey Lee Stewart (defendants) were indicted for the armed robbery of Downs and the attempted armed robbery of Keeler and Addeo. At trial, the three victims identified defendant Stewart as the man who made the initial demand for their money, and defendant Hasty as the man who held the gun to Downs\u2019 head while taking his property. A jury found both defendants guilty on all counts, the trial court sentenced them within the presumptive range of punishment, and both appealed to this Court.\nAttorney General Michael F. Easley, by Assistant Attorney General John G. Barnwell, for the State.\nPublic Defender Isabel Scott Day, by Assistant Public Defender Julie Ramseur Lewis, for defendant appellant Jarvis S. Hasty.\nGrant Smithson for defendant appellant Harvey Lee Stewart." }, "file_name": "0563-01", "first_page_order": 593, "last_page_order": 603 }