{ "id": 9251077, "name": "STATE OF NORTH CAROLINA v. JOHN EARL HINTON, JR.", "name_abbreviation": "State v. Hinton", "decision_date": "2002-12-31", "docket_number": "No. COA01-1491", "first_page": "561", "last_page": "567", "citations": [ { "type": "official", "cite": "155 N.C. App. 561" } ], "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": "169 S.E.2d 530", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "532" } ], "opinion_index": 0 }, { "cite": "6 N.C. App. 174", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547263 ], "year": 1969, "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/nc-app/6/0174-01" ] }, { "cite": "462 S.E.2d 656", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "670", "parenthetical": "quoting State v. Muskelly, 6 N.C. App. 174, 176, 169 S.E.2d 530, 532 (1969)" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 278", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915444 ], "year": 1995, "pin_cites": [ { "page": "298", "parenthetical": "quoting State v. Muskelly, 6 N.C. App. 174, 176, 169 S.E.2d 530, 532 (1969)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0278-01" ] }, { "cite": "369 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "817", "parenthetical": "\"we hold that larceny is a lesser included offense of armed robbery\"" } ], "opinion_index": 0 }, { "cite": "322 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517600 ], "year": 1988, "pin_cites": [ { "page": "514", "parenthetical": "\"we hold that larceny is a lesser included offense of armed robbery\"" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0506-01" ] }, { "cite": "330 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "193" } ], "opinion_index": 0 }, { "cite": "313 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4721689 ], "year": 1985, "pin_cites": [ { "page": "558" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0554-01" ] }, { "cite": "448 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "869", "parenthetical": "citing State v. Peacock, 313 N.C. 554, 558, 330 S.E.2d 190, 193 (1985)" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 609", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525160 ], "year": 1994, "pin_cites": [ { "page": "613", "parenthetical": "citing State v. Peacock, 313 N.C. 554, 558, 330 S.E.2d 190, 193 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0609-01" ] }, { "cite": "431 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "191" } ], "opinion_index": 0 }, { "cite": "334 N.C. 54", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529763 ], "year": 1993, "pin_cites": [ { "page": "58" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0054-01" ] }, { "cite": "412 U.S. 205", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6171860 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "208" }, { "page": "847" } ], "opinion_index": 0, "case_paths": [ "/us/412/0205-01" ] }, { "cite": "539 S.E.2d 922", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "924", "parenthetical": "quoting Keeble v. United States, 412 U.S. 205, 208, 36 L. Ed. 2d 844, 847 (1973)" } ], "opinion_index": 0 }, { "cite": "353 N.C. 234", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135796 ], "year": 2000, "pin_cites": [ { "page": "237", "parenthetical": "quoting Keeble v. United States, 412 U.S. 205, 208, 36 L. Ed. 2d 844, 847 (1973)" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0234-01" ] }, { "cite": "279 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "evidence insufficient that robbery occurred by the use or threatened use of weapon where victim was unconscious during robbery" } ], "opinion_index": 0 }, { "cite": "303 N.C. 484", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574048 ], "year": 1981, "pin_cites": [ { "parenthetical": "evidence insufficient that robbery occurred by the use or threatened use of weapon where victim was unconscious during robbery" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0484-01" ] }, { "cite": "566 S.E.2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "124" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 530", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9081109 ], "year": 2002, "pin_cites": [ { "page": "532" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0530-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "567 S.E.2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "208", "parenthetical": "quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 211", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249483 ], "year": 2002, "pin_cites": [ { "page": "213", "parenthetical": "quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0211-01" ] }, { "cite": "508 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "518" } ], "opinion_index": 0 }, { "cite": "349 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571580 ], "year": 1998, "pin_cites": [ { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0382-01" ] }, { "cite": "468 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "231" } ], "opinion_index": 0 }, { "cite": "343 N.C. 79", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798899 ], "year": 1996, "pin_cites": [ { "page": "85" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0079-01" ] }, { "cite": "356 N.C. 441", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511575, 1511571, 1511223, 1511192, 1511389 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0441-03", "/nc/356/0441-02", "/nc/356/0441-04", "/nc/356/0441-01", "/nc/356/0441-05" ] }, { "cite": "568 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "664" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 564", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250857 ], "year": 2002, "pin_cites": [ { "page": "574-75" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0564-01" ] }, { "cite": "571 S.E.2d 208", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "356 N.C. 311", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511395, 1511155, 1511413, 1511356, 1511614 ], "year": 2002, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0311-04", "/nc/356/0311-03", "/nc/356/0311-02", "/nc/356/0311-05", "/nc/356/0311-01" ] }, { "cite": "566 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "799" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 29", "category": "reporters:state", "reporter": "N.C. App.", "year": 2002, "pin_cites": [ { "page": "37-38" } ], "opinion_index": 0 }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378" } ], "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" ] }, { "cite": "456 S.E.2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "where the defendant fails to allege plain error in his assignments of error, he \"waive [s] his right to appellate review of [the] issue\"" } ], "opinion_index": 0 }, { "cite": "340 N.C. 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790156 ], "year": 1995, "pin_cites": [ { "parenthetical": "where the defendant fails to allege plain error in his assignments of error, he \"waive [s] his right to appellate review of [the] issue\"" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0229-01" ] }, { "cite": "395 S.E.2d 148", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "150", "parenthetical": "where \"defendant failed to object or move for a mistrial based upon the court's remarks,\" this Court reviews only for plain error" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 207", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526557 ], "year": 1990, "pin_cites": [ { "page": "211", "parenthetical": "where \"defendant failed to object or move for a mistrial based upon the court's remarks,\" this Court reviews only for plain error" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0207-01" ] } ], "analysis": { "cardinality": 766, "char_count": 14651, "ocr_confidence": 0.765, "pagerank": { "raw": 1.1482568424360516e-07, "percentile": 0.5807494954339036 }, "sha256": "dc414304d98108d47af71f54f9c3bfb58da943e8deec50369b2712a12ccbadd6", "simhash": "1:87265026773f1d46", "word_count": 2436 }, "last_updated": "2023-07-14T20:08:10.559314+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and WYNN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JOHN EARL HINTON, JR." ], "opinions": [ { "text": "BIGGS, Judge.\nDefendant appeals his conviction of robbery with a dangerous weapon. The relevant trial evidence may be summarized as follows: Barbara Zaehring testified that on 21 January 2001, she was employed as a cashier at Grocery Boy Junior, a Wake County convenience store. Defendant entered the store early that morning, when no other customers were present. He approached the counter, displayed a \u201cblack handled knife with a silver blade,\u201d told Zaehring \u201cI want your money,\u201d and then came behind the counter where Zaehring was standing. Zaehring grabbed a gun that the owner kept under the counter and pointed it towards defendant, who said \u201cGo ahead, shoot me.\u201d Zaehring responded that it \u201cwasn\u2019t worth it,\u201d replaced the gun on the counter, and opened the cash drawer for the defendant. He took all the money in the drawer and then left, telling Zaehring not to press the silent alarm. Zaehring testified that, although she did not recognize defendant during the robbery, she later remembered having seen him on one occasion at her husband\u2019s former place of employment.\nDefendant testified that he became acquainted with Zaehring because he had worked for the same employer as Zaehring\u2019s husband. He and Zaehring became friends; he had visited her at the store, and had also met her at a local park, where they discussed \u201ca sexual engagement.\u201d She sometimes let him have things from the store without paying. Defendant also testified that he and Zaehring had planned together to steal money from the store. They had staged the mock \u201carmed robbery\u201d and had planned to divide the proceeds. On rebuttal, Zaehring denied any prior acquaintance with defendant.\nDefendant was convicted of robbery with a dangerous weapon, and sentenced to a prison term of 146 to 185 months. He appeals from this judgment.\nI.\nDefendant argues first that the trial court erred by failing to declare a mistrial in response to improper contact between a prosecution witness and a seated juror. We disagree.\nAt trial, Steve Byers, owner of the Grocery Boy Junior store that was robbed, testified concerning the store\u2019s security camera, the gun under the counter, and events occurring at the store on the morning of the robbery. His testimony was brief, and defendant did not cross-examine him. At some point after his testimony, Byers had a short conversation with one of the jurors. When he was questioned by the trial court about this, Byers testified that he had asked the juror, who was employed by a local newspaper, for advice on submitting articles for publication. He testified further that he had misunderstood the trial court\u2019s admonitions about not speaking with jurors; that the conversation was brief and entirely unrelated to the case; and that a second juror had been near enough to overhear their conversation. The two jurors were questioned by the trial court, and both stated that the brief conversation did not pertain to the case and would not influence their verdict. Defendant neither questioned the jurors, nor moved for a mistrial.\nDefendant argues on appeal that the court erred by not declaring a mistrial. He alleges that Byers \u201cwas clearly [trying] to curry favor for himself with [the juror], . . . [and] may thereby have enhanced his credibility with that particular juror.\u201d He contends that the trial court \u201cshould have ex mero motu either declared a mistrial or, at a minimum, removed juror Blackwood in favor of an alternate.\u201d\nN.C.G.S. \u00a7 15A-1061 (2001) provides that the trial court \u201cmust declare a mistrial upon the defendant\u2019s motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant\u2019s case.\u201d (emphasis added). However, in the instant case, because defendant failed to request a mistrial from the trial court, our review is limited to whether the court\u2019s failure to declare a mistrial constituted \u201cplain error.\u201d See N.C.R. App. P. 10(c)(4) (\u201ca question which was not preserved by objection noted at trial. . . nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error\u201d); State v. Ross, 100 N.C. App. 207, 211, 395 S.E.2d 148, 150 (1990) (where \u201cdefendant failed to object or move for a mistrial based upon the court\u2019s remarks,\u201d this Court reviews only for plain error).\nMoreover, defendant failed to allege plain error in his assignments of error. He has thus waived review even for plain error. State v. Truesdale, 340 N.C. 229, 456 S.E.2d 299 (1995) (where the defendant fails to allege plain error in his assignments of error, he \u201cwaive [s] his right to appellate review of [the] issue\u201d). Notwithstanding defendant\u2019s failure to properly preserve this issue for review, in the interests of justice and pursuant to our authority under N.C.R. App. P. 2, we elect to review the merits of defendant\u2019s argument.\nPlain error is \u201cfundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or . . . grave error which amounts to a denial of a fundamental right of the accused].]\u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). \u201cIn order to prevail under a plain error analysis, a defendant must show: (1) there was error; and (2) without this error, the jury would probably have reached a different verdict.\u201d State v. Smith, 151 N.C. App. 29, 37-38, 566 S.E.2d 793, 799 (2002), disc. review denied, 356 N.C. 311, 571 S.E.2d 208 (2002) (citation omitted).\nThe trial court\u2019s ruling on a motion for mistrial generally \u201clies within the sound discretion of the trial court and will be reversed only upon a showing of a manifest abuse of discretion.\u201d State v. Lippard, 152 N.C. App. 564, 574-75, 568 S.E.2d 657, 664, (2002), disc. review denied, 356 N.C. 441, - S.E.2d - (2002). In the present case, there is no indication that Byers attempted to discuss the case with the juror. Both jurors assured the trial court that the short conversation would not affect their verdict. Moreover, Byers\u2019 testimony was not crucial to the State\u2019s case; indeed, defendant did not even cross-examine him. We conclude that there is no basis to suppose that, absent Byers\u2019 brief interaction with a juror, the result of the trial would have been different. We hold that the trial court did not commit plain error by failing to declare a mistrial ex moro mo tu on this basis. Accordingly, this assignment of error is overruled.\nII.\nDefendant argues next that the trial court erred by failing to dismiss the charge against him for insufficient evidence. We disagree.\nUpon a defendant\u2019s motion to dismiss criminal charges for insufficiency of the evidence, the trial court must consider the evidence \u201cin the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom.\u201d State v. Gainey, 343 N.C. 79, 85, 468 S.E.2d 227, 231 (1996). The trial court should deny the motion if the State has presented \u201csubstantial evidence of each essential element of the crime and that the defendant is the perpetrator.\u201d State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998). \u201cEvidence is considered substantial when \u2018a reasonable mind might accept [it] as adequate to support a conclusion.\u2019 \u201d State v. Craycraft, 152 N.C. App. 211, 213, 567 S.E.2d 206, 208 (2002) (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)).\nDefendant was charged with robbery with a dangerous weapon, in violation of N.C.G.S. \u00a7 14-87 (2001). \u201cThe elements of robbery with a dangerous weapon are: (1) the unlawful attempt to take or taking of personal property from a person or presence, (2) by use or threatened use of a firearm or other dangerous weapon, (3) whereby the life of the person is threatened or endangered.\u201d State v. Gay, 151 N.C. App. 530, 532, 566 S.E.2d 121, 124 (2002). Defendant alleges that \u201cthere was no substantial evidence that the defendant either endangered or threatened the life of Zaehring.\u201d Defendant correctly states that mere possession of a weapon is insufficient to support a conviction for robbery with a dangerous weapon. State v. Gibbons, 303 N.C. 484, 279 S.E.2d 574 (1981) (evidence insufficient that robbery occurred by the use or threatened use of weapon where victim was unconscious during robbery). However, in the instant case, Zaehring testified that defendant had a \u201cblack handled knife with a silver blade,\u201d and that \u201c[h]e had already been here showing me his knife and he grabbed the door from me and pulled it back.\u201d When he came around behind the counter the defendant was \u201cjust holding it like it was pointing it (sic) this way, but not quite at me[.]\u201d Zaehring also testified that when the defendant came behind the counter with his knife, that there was no other exit, or way for her to get out from behind the counter. Finally, Zaehring testified on rebuttal that she had opened the cash drawer \u201c[b]ecause [she] feared for [her] life.\u201d\nWe conclude that Zaehring\u2019s testimony, even standing alone, was sufficient to submit to the jury the question of whether defendant had endangered or threatened her life by means of the use or threatened use of a knife. This assignment of error is overruled.\nIII.\nDefendant\u2019s final argument is that the trial court erred by denying his motion for an instruction on misdemeanor larceny.\n\u201cA defendant \u2018is entitled to an instruction on lesser included offense [s] if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit.him of the greater.\u2019 \u201d State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924 (2000) (quoting Keeble v. United States, 412 U.S. 205, 208, 36 L. Ed. 2d 844, 847 (1973)). However, the right to an instruction on a lesser included offense arises \u201conly if there is evidence that the defendant might be guilty of the lesser[-included] offense.\u201d State v. Collins, 334 N.C. 54, 58, 431 S.E.2d 188, 191 (1993). Thus, \u201c[i]f the State\u2019s evidence is clear and positive as to each element of the charged offense, and if there is no evidence of the lesser-included offense, there is no error in refusing to instruct on the lesser offense.\u201d State v. Howie, 116 N.C. App. 609, 613, 448 S.E.2d 867, 869 (1994) (citing State v. Peacock, 313 N.C. 554, 558, 330 S.E.2d 190, 193 (1985)).\nLarceny is a lesser included offense of robbery with a dangerous weapon. State v. White, 322 N.C. 506, 514, 369 S.E.2d 813, 817 (1988) (\u201cwe hold that larceny is a lesser included offense of armed robbery\u201d). Under N.C.G.S. \u00a7 14-72(a) (2001), \u201clarceny of property, . . . where the value of the property or goods is not more than one thousand dollars ($1,000), is a Class 1 misdemeanor.\u201d In the present case, it was undisputed that defendant took $277 from the cash box, a misdemeanor amount. Defendant contends that there was evidence from which the jury could find that he committed misdemeanor larceny, and thus, that the trial court should have granted his request for an instruction on the offense.\nReduced to its essentials, the pertinent evidence was the following: Zaehring testified that she had no personal acquaintance with defendant, and that while she was on duty as a cashier for Grocery Boy Junior, the defendant robbed her at knifepoint. In contrast, defendant testified that he and Zaehring were friends; that they planned together to steal money from Grocery Boy Junior and split it; and that the \u201carmed robbery\u201d was a fake, staged for the benefit of the video security camera. Thus, although defendant was indicted for armed robbery of Zaehring, the defendant testified that he had not robbed Zaehring, and that he and Zaehring jointly committed an entirely different crime \u2014 embezzlement, or larceny by employee \u2014 from the store, rather than from Zaehring. On this evidence, the trial court concluded that it could not instruct the jury on an offense that was neither charged in the indictment, nor was a lesser included offense of the offense for which defendant was indicted. We agree.\nThe defendant\u2019s testimony, if believed, did not establish a right to an instruction on misdemeanor larceny, but on aiding and abetting embezzlement or larceny by employee. Defendant was not charged with either of these, and \u201c [i]t is a rule of universal observance in the administration of criminal law that a defendant must be convicted, if convicted at all, of the particular offense charged in the bill of indictment. The allegations and the proof must correspond.\u201d State v. Rhome, 120 N.C. App. 278, 298, 462 S.E.2d 656, 670 (1995) (quoting State v. Muskelly, 6 N.C. App. 174, 176, 169 S.E.2d 530, 532 (1969)). We conclude that the trial court did not err by denying defendant\u2019s motion for jury instructions on the offense of misdemeanor larceny. Defendant\u2019s testimony did not establish his entitlement to such an instruction, and the indictment under which he was charged would not support such a conviction.\nFor the reasons discussed above, we conclude that defendant had a fair trial, free from prejudicial error, and that his conviction must be affirmed.\nNo error.\nJudges GREENE and WYNN concur.", "type": "majority", "author": "BIGGS, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Steven A. Armstrong, for the State.", "William D. Auman, for the defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHN EARL HINTON, JR.\nNo. COA01-1491\n(Filed 31 December 2002)\n1. Criminal Law\u2014 witness speaking to juror \u2014 no mistrial\nThere was no plain error in the trial court\u2019s failure to declare a mistrial ex mero moto in an armed robbery prosecution because a witness spoke with one of the jurors after his testimony where the witness did not speak with the juror about this case.\n2. Robbery\u2014 elements \u2014 threat to victim \u2014 sufficiency of evidence\nThere was sufficient evidence in an armed robbery prosecution to submit to the jury the question of whether defendant had endangered or threatened the victim\u2019s life by the use or threatened use of a knife.\n3. Robbery\u2014 instructions \u2014 lesser included offenses \u2014 evidence of uncharged offense\nThe trial court correctly denied an armed robbery defendant\u2019s motion for an instruction on misdemeanor larceny where the amount stolen was less than $1,000, but defendant\u2019s testimony was that the robbery was staged for a security camera with the victim, with whom he was to split the money. Defendant\u2019s testimony, if believed, established a right to an instruction on embezzlement or larceny by an employee, but not misdemeanor larceny.\nAppeal by defendant from judgment entered 18 July 2001 by Judge Abraham P. Jones in Wake County Superior Court. Heard in the Court of Appeals 17 September 2002.\nAttorney General Roy Cooper, by Assistant Attorney General Steven A. Armstrong, for the State.\nWilliam D. Auman, for the defendant." }, "file_name": "0561-01", "first_page_order": 591, "last_page_order": 597 }