{ "id": 4033466, "name": "STATE OF NORTH CAROLINA v. TYRECE DEMONT MASON", "name_abbreviation": "State v. Mason", "decision_date": "2012-08-07", "docket_number": "No. COA11-1563", "first_page": "223", "last_page": "234", "citations": [ { "type": "official", "cite": "222 N.C. App. 223" } ], "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": "628 S.E.2d 760", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635608, 12635609, 12635610 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/628/0760-01", "/se2d/628/0760-02", "/se2d/628/0760-03" ] }, { "cite": "621 S.E.2d 202", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634295 ], "year": 2005, "pin_cites": [ { "page": "204", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/621/0202-01" ] }, { "cite": "613 S.E.2d 330", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632964 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "333", "parenthetical": "citing Crawford, 541 U.S. at 59-60, n.9, 158 L. Ed. 2d at 197-98, n.9" }, { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/se2d/613/0330-01" ] }, { "cite": "650 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639355, 12639356, 12639357 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/650/0594-01", "/se2d/650/0594-02", "/se2d/650/0594-03" ] }, { "cite": "652 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639663 ], "year": 2007, "pin_cites": [ { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/se2d/652/0241-01" ] }, { "cite": "669 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642336 ], "year": 2008, "pin_cites": [ { "page": "836", "parenthetical": "quoting State v. Everette, 361 N.C. 646, 651, 652 S.E.2d 241, 244 (2007)" } ], "opinion_index": 0, "case_paths": [ "/se2d/669/0832-01" ] }, { "cite": "164 U.S. 492", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3591459 ], "weight": 2, "year": 1896, "pin_cites": [ { "page": "501-02", "parenthetical": "approving jury instructions that encourage the jury to reach a verdict after the jury requested additional instructions from the trial court" }, { "page": "530-31", "parenthetical": "approving jury instructions that encourage the jury to reach a verdict after the jury requested additional instructions from the trial court" } ], "opinion_index": 0, "case_paths": [ "/us/164/0492-01" ] }, { "cite": "457 S.E.2d 716", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "723" } ], "opinion_index": 0 }, { "cite": "340 N.C. 320", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790144 ], "year": 1995, "pin_cites": [ { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0320-01" ] }, { "cite": "512 S.E.2d 436", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "438", "parenthetical": "noting that a defendant must show prejudicial error for a new trial" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 515", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238961 ], "year": 1999, "pin_cites": [ { "page": "518-19", "parenthetical": "noting that a defendant must show prejudicial error for a new trial" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0515-01" ] }, { "cite": "458 S.E.2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "247" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 266", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914541 ], "year": 1995, "pin_cites": [ { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0266-01" ] }, { "cite": "287 S.E.2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "130-31" } ], "opinion_index": 0 }, { "cite": "56 N.C. App. 113", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519733 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/56/0113-01" ] }, { "cite": "519 S.E.2d 73", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "81" }, { "page": "82" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 13", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238748 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "22" }, { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0013-01" ] }, { "cite": "360 N.C. 471", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787515 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0471-01" ] }, { "cite": "174 N.C. App. 438", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352297 ], "year": 2005, "pin_cites": [ { "page": "440", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0438-01" ] }, { "cite": "684 S.E.2d 733", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "739" } ], "opinion_index": 0 }, { "cite": "200 N.C. App. 517", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4171888 ], "year": 2009, "pin_cites": [ { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/nc-app/200/0517-01" ] }, { "cite": "170 N.C. App. 632", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9006375 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "635", "parenthetical": "citing Crawford, 541 U.S. at 59-60, n.9, 158 L. Ed. 2d at 197-98, n.9" }, { "page": "635" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0632-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "59-60, n.9" }, { "page": "197-98, n.9" }, { "page": "59-60, n.9" }, { "page": "197-98, n.9" } ], "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "725 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "61" } ], "opinion_index": 0 }, { "cite": "361 N.C. 585", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3740005 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0585-01" ] }, { "cite": "642 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2007, "pin_cites": [ { "page": "496" } ], "opinion_index": 0 }, { "cite": "182 N.C. App. 365", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8172241 ], "year": 2007, "pin_cites": [ { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0365-01" ] }, { "cite": "481 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "71", "parenthetical": "alterations in original" } ], "opinion_index": 0 }, { "cite": "345 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53983 ], "year": 1997, "pin_cites": [ { "page": "233", "parenthetical": "alterations in original" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0184-01" ] }, { "cite": "695 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2006, "pin_cites": [ { "parenthetical": "alteration in original" } ], "opinion_index": 0 }, { "cite": "361 N.C. 160", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3737097 ], "year": 2006, "pin_cites": [ { "parenthetical": "alteration in original" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0160-01" ] }, { "cite": "605 S.E.2d 647", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "653" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8410877 ], "year": 2004, "pin_cites": [ { "page": "117" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0110-01" ] }, { "cite": "606 S.E.2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "135" }, { "page": "139" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 512", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411840 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "514-15" }, { "page": "521" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0512-01" ] }, { "cite": "136 S.E.2d 595", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "598" } ], "opinion_index": 0 }, { "cite": "262 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566138 ], "year": 1964, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0162-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-87", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "325 S.E.2d 635", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "637" } ], "opinion_index": 0 }, { "cite": "73 N.C. App. 89", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521903 ], "year": 1985, "pin_cites": [ { "page": "92" } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0089-01" ] }, { "cite": "692 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "433" } ], "opinion_index": 0 }, { "cite": "488 S.E.2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "172", "parenthetical": "\"Regarding the alleged variance between the indictment and the evidence at trial, defendant based his motions at trial solely on the ground of insufficient evidence and thus has failed to preserve this argument for appellate review.\"" } ], "opinion_index": 0 }, { "cite": "346 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139473 ], "year": 1997, "pin_cites": [ { "page": "645", "parenthetical": "\"Regarding the alleged variance between the indictment and the evidence at trial, defendant based his motions at trial solely on the ground of insufficient evidence and thus has failed to preserve this argument for appellate review.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0628-01" ] }, { "cite": "706 S.E.2d 807", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "812", "parenthetical": "alterations in original" } ], "opinion_index": 0 }, { "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": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "652", "parenthetical": "quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)" } ], "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "pin_cites": [ { "page": "66", "parenthetical": "quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] }, { "cite": "184 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "866" } ], "opinion_index": 0 }, { "cite": "280 N.C. 60", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569800 ], "year": 1971, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0060-01" ] }, { "cite": "352 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "432" } ], "opinion_index": 0 }, { "cite": "319 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4748383 ], "year": 1987, "pin_cites": [ { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0073-01" ] }, { "cite": "368 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "382-83", "parenthetical": "citing State v. Williams, 319 N.C. 73, 79, 352 S.E.2d 428, 432 (1987)" }, { "page": "383", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "322 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515495 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "358", "parenthetical": "citing State v. Williams, 319 N.C. 73, 79, 352 S.E.2d 428, 432 (1987)" }, { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0349-01" ] }, { "cite": "361 N.C. 646", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3736794 ], "year": 2007, "pin_cites": [ { "page": "651" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0646-01" ] }, { "cite": "194 N.C. App. 468", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4162570 ], "year": 2008, "pin_cites": [ { "page": "472-73", "parenthetical": "quoting State v. Everette, 361 N.C. 646, 651, 652 S.E.2d 241, 244 (2007)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/194/0468-01" ] }, { "cite": "337 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "515" } ], "opinion_index": 0 }, { "cite": "315 N.C. 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714446 ], "year": 1985, "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0273-01" ] } ], "analysis": { "cardinality": 991, "char_count": 26851, "ocr_confidence": 0.735, "pagerank": { "raw": 1.1158754178716105e-07, "percentile": 0.5722003483600782 }, "sha256": "75c208f3f49c2396e61bd192e3a03803cb973dfe90ed1941a459b8b9ab970fae", "simhash": "1:0769d47ae66f9c7c", "word_count": 4509 }, "last_updated": "2023-07-14T20:23:21.020165+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and BEASLEY concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TYRECE DEMONT MASON" ], "opinions": [ { "text": "STEELMAN, Judge.\nDefendant failed to preserve his argument as to a variance in the victim\u2019s name. Where the State presented evidence that a cell phone was taken from the victim, the trial court properly denied defendant\u2019s motion to dismiss. Where the State presented evidence that, while the other robber held a gun on the victim, defendant rifled through his pockets, the trial court properly denied defendant\u2019s motion to dismiss. Where the police officer testified as to the victim\u2019s statements at the scene of the robbery obtained through a telephonic translation service, and the testimony was received only for corroboration purposes, it did not violate defendant\u2019s constitutional right of confrontation. Where the trial court charged the jury on the theory of \u201cacting in concert,\u201d it was not error to decline to charge the jury on \u201cmere presence.\u201d While it was error for the trial court to send exhibits to the jury deliberation room over defendant\u2019s objections, the error was not prejudicial. The trial court did not coerce the jury into a unanimous verdict by playing back testimony and giving an Allen charge.\nI. Factual and Procedural Background\nOn the evening of 10 December 2009, two young men approached Lin You Xing (Lin), owner of a Chinese restaurant in Durham, in the restaurant parking lot. One man had a gun and put his hand into Lin\u2019s pocket. He found a cell phone in the pocket and threw it away. Durham Police Officer McQueen (Officer McQueen) drove by during the robbery and saw TVrese Mason (defendant) with his hands in Lin\u2019s pockets. The robber with the gun ran when he saw the police. A police canine located the discarded gun nearby. Lin and his brother held defendant until police arrested him.\nThe police interviewed Lin through a telephone service known as \u201cLanguage Line.\u201d Defendant testified at trial that he and another man had just been dropped off in front of the Chinese restaurant when the other man ran up to Lin, pointed a gun at Lin, and proceeded to rob Lin.\nA jury found defendant guilty of robbery with a firearm. The trial court sentenced defendant to an active term of imprisonment of 42-60 months. This sentence was from the mitigated range.\nDefendant appeals.\nII. Denial of Motion to Dismiss\nIn his first argument, defendant contends that the trial court erred in denying his motion to dismiss the charges. This argument is made in three parts: (1) there was a variance between the name of the victim alleged in the indictment and at trial; (2) there was a variance between the evidence at trial and the jury instructions; and (3) sufficiency of the evidence. We disagree with all three bases of defendant\u2019s argument.\nA. Standard of Review\nSince defendant offered evidence following the denial of his motion to dismiss at the close of the State\u2019s evidence, we only review his motion to dismiss made at the close of all the evidence. State v. Bruce, 315 N.C. 273, 280, 337 S.E.2d 510, 515 (1985). \u201c[I]n ruling on a motion to dismiss, the trial court must determine whether there is substantial evidence of each essential element of the crime and whether the defendant is the perpetrator of that crime.\u201d State v. Ford, 194 N.C. App. 468, 472-73, 669 S.E.2d 832, 836 (2008) (quoting State v. Everette, 361 N.C. 646, 651, 652 S.E.2d 241, 244 (2007)). On appellate review, this Court \u201cmust view the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference.\u201d State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 382-83 (1988) (citing State v. Williams, 319 N.C. 73, 79, 352 S.E.2d 428, 432 (1987)). \u201cIf there is substantial evidence \u2014 whether direct, circumstantial, or both \u2014 to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.\u201d Locklear, 322 N.C. at 358, 368 S.E.2d at 383 (citation omitted). Further, \u201c[t]he defendant\u2019s evidence, unless favorable to the State, is not to be taken into consideration.\u201d State v. Jones, 280 N.C. 60, 66, 184 S.E.2d 862, 866 (1971). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982) (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)).\nState v. Banks,_N.C. App._,_, 706 S.E.2d 807, 812 (2011) (alterations in original).\nB. Variance in Name of Victim\nDefendant must preserve the right to appeal a fatal variance. See State v. Pickens, 346 N.C. 628, 645, 488 S.E.2d 162, 172 (1997) (\u201cRegarding the alleged variance between the indictment and the evidence at trial, defendant based his motions at trial solely on the ground of insufficient evidence and thus has failed to preserve this argument for appellate review.\u201d); State v. Roman, _N.C. App. _,_, 692 S.E.2d 431, 433 (2010); N.C.R. App. P. 10(a)(1) (2011).\nDefendant moved to dismiss at the close of the State\u2019s evidence on the grounds that the State\u2019s evidence was insufficient to show a taking, that the gun was operational, and that defendant was the perpetrator of the offense. Defendant renewed this motion at the close of all evidence. Fatal variance was not a basis of his motions to dismiss.\nDefendant failed to preserve this argument for appellate review, and it is dismissed. Even assuming arguendo that defendant preserved this issue for appeal, it would have no merit.\nDefendant argues that there was a fatal variance between the name of the victim in the indictment and the evidence at trial. The indictment alleged that the victim\u2019s name was You Xing Lin, but the person who testified at trial was Lin You Xing. In State v. Cameron, the indictment stated that the name of the victim was \u201cMrs. Narest Phillips,\u201d and at trial, the evidence showed the victim to be \u201cMrs. Ernest Phillips.\u201d State v. Cameron, 73 N.C. App. 89, 92, 325 S.E.2d 635, 637 (1985). We held that a variance in names between the indictment and at trial was immaterial because the defendant \u201cwas not surprised or placed at any disadvantage in preparing his defense to the crimes charged in the indictment.\u201d Id. We hold that, in the instant case, defendant was not \u201csurprised or placed at any disadvantage\u201d by this variance due to the fact the name was the same but in a different order.\nC. Variance in Evidence\nDefendant next argues that the trial court erred in denying his motion to dismiss the charge of robbery with a firearm because there was a variance between the theory of guilt contained in the trial court\u2019s instruction to the jury and the evidence at trial. Defendant contends that, because the indictment alleged an actual taking of the property and actual possession of a gun by defendant, and the evidence showed that there was not an actual taking of the property, the trial court should have dismissed the charge of robbery with a firearm and instructed the jury on attempted robbery with a firearm.\nN.C. Gen. Stat. \u00a7 14-87(a) defines robbery with firearms or other dangerous weapons as:\nAny 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.\nN.C. Gen. Stat. \u00a7 14-87(a) (2011). The statute defines two crimes: armed robbery and attempted armed robbery. The jury was instructed solely on the theory of a completed robbery with a firearm together with an acting in concert instruction. Defendant argues that there was no actual \u201ctaking\u201d of property and that, in the light most favorable to the State, all of the evidence shows only an attempted taking.\nTaken in the light most favorable to the State, there was sufficient evidence presented of all of the elements of completed robbery, and the trial court\u2019s instruction to the jury was proper. The only element at issue is the taking of property. The State\u2019s evidence was that the robber with the gun reached into Lin\u2019s pocket, grabbed Lin\u2019s cell phone, and threw it away. Officer McQueen testified that he saw defendant\u2019s hands in Lin\u2019s pockets.\nDefendant argues that there was no taking of the cell phone to show a completed robbery. The fact that the \u201ctaking\u201d was for a relatively short period of time is insignificant. State v. Lawrence holds that even if something is forcibly removed from or surrendered by a victim for a short amount of time, such an act still constitutes a taking. State v. Lawrence, 262 N.C. 162, 166, 136 S.E.2d 595, 598 (1964). An analogous situation is found in the case of State v. Simmons, 167 N.C. App. 512, 606 S.E.2d 133 (2004). In Simmons, the defendant slapped a cellular phone out of the victim\u2019s hand and returned it to the victim shortly thereafter. Simmons, 167 N.C. App. at 514-15, 606 S.E.2d at 135. We held that\n[t]he evidence that defendant returned the phone within a few days tends to contradict the circumstantial evidence of defendant\u2019s intent at the time of the taking. However, this evidence supporting a contradictory inference is not determinative on a motion to dismiss because defendant\u2019s intent at the time of the taking is an issue for the jury to resolve.\nSimmons, 167 N.C. App. at 521, 606 S.E.2d at 139. Thus, what is relevant is whether the State offered sufficient evidence to support the trial court\u2019s jury charge. In the instant case, there was sufficient evidence presented.\nWe further note that defendant can show no prejudice. The punishment for attempted robbery with a firearm is identical to that for robbery with a firearm. Additionally, at trial, defense counsel objected to the State\u2019s request for an instruction on attempted robbery with a firearm. This constitutes an invited error. Under the doctrine of invited error, a \u201cdefendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct.\u201d N.C. Gen. Stat. \u00a7 15A-1443(c) (2011). \u201c[A] defendant may not decline an opportunity for instructions on a lesser included offense and then claim on appeal that failure to instruct on the lesser included offense was error.\u201d State v. Walker, 167 N.C. App. 110, 117, 605 S.E.2d 647, 653 (2004), vacated in part on other grounds, 361 N.C. 160, 695 S.E.2d 750 (2006) (alteration in original) (internal quotations marks omitted).\nDefendant\u2019s argument is without merit.\nD. Sufficiency of Evidence\nDefendant argues that the trial court improperly denied his motion to dismiss based on the sufficiency of the evidence upon two grounds: (1) no property was taken; and (2) there was no evidence that he was a perpetrator of the robbery. Defendant argues he was merely present at the scene, and there was insufficient evidence of the charge as a matter of law because the State did not provide substantial evidence of each essential element of any of the elements of the charge.\nAs discussed above, viewed in the light most favorable to the State, the State presented substantial evidence to show that there was an actual taking of property, and the trial court\u2019s denial of defendant\u2019s motion to dismiss was proper.\nIt is not necessary that defendant himself committed any of the actions of armed robbery if he acted in concert with another person.\n[I]f two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the oth\u00e9r in pursuance of the common purpose ... or as a natural or probable consequence thereof.\nState v. Barnes, 345 N.C. 184, 233, 481 S.E.2d 44, 71 (1997) (alterations in original) (internal quotation marks omitted). Further, \u201c[c]onstructive presence is not determined by the defendant\u2019s actual distance from the crime; the accused simply must be near enough to render assistance if need be and to encourage the actual perpetration of the crime.\u201d State v. Combs, 182 N.C. App. 365, 370, 642 S.E.2d 491, 496, aff\u2019d, 361 N.C. 585, 650 S.E.2d 594 (2007).\nTaken in the light most favorable to the State, the evidence in this case supports the trial court\u2019s instruction to the jury of a completed robbery with a firearm under N.C. Gen. Stat. \u00a7 14-87(a). Defendant was actually present during the robbery, and the State presented evidence that he participated in the robbery by rifling through Lin\u2019s pockets.\nDefendant\u2019s argument is without merit.\nIII. Right to Confront Interpreter\nIn his second argument, defendant contends that the trial court violated his right to confront witnesses by admitting statements of an unidentified interpreter. We disagree.\nA. Standard of Review\n\u201cWhen the Court reviews an alleged violation of a defendant\u2019s constitutional rights, the appropriate standard of review is de novo.\u201d State v. Glenn,_N.C. App._,_, 725 S.E.2d 58, 61 (2012).\nB. Analysis\nAt trial, Officer McQueen testified as to Lin\u2019s statements made at the scene of the robbery through \u201cLanguage Line,\u201d telephone translation service. Officer McQueen used this service because Lin did not speak English, and McQueen did not speak Mandarin Chinese. Defendant objected to Officer McQueen\u2019s testimony on the grounds that it violated his constitutional right of confrontation and that it constituted double hearsay. The trial court instructed the jury that this evidence \u201cis not being admitted into evidence for substantive purposes. It is not being admitted into evidence to prove the truth of any matter asserted. But it is being admitted into evidence for the limited purpose of corroboration[.]\u201d\nDefendant\u2019s argument'that his right to confront a witness was denied is not applicable because the testimony of Officer McQueen was not admitted for the purpose of establishing the truth of the matter asserted, but rather was admitted solely for the purpose of corroboration. The Sixth Amendment\u2019s Confrontation Clause \u201cdoes not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.\u201d Crawford v. Washington, 541 U.S. 36, 59-60, n.9, 158 L. Ed. 2d 177, 197-98, n.9 (2004).\n\u201cAn exception to the new rule espoused in Crawford is a familiar one: where evidence is admitted for a purpose other than the truth of the matter asserted, the protection afforded by the Confrontation Clause against testimonial statements is not at issue.\u201d State v. Walker, 170 N.C. App. 632, 635, 613 S.E.2d 330, 333 (2005) (citing Crawford, 541 U.S. at 59-60, n.9, 158 L. Ed. 2d at 197-98, n.9). \u201c[W]here the evidence is admitted for, inter alia, corroboration or the basis of an expert\u2019s opinion, there is no constitutional infirmity.\u201d Walker, 170 N.C. App. at 635, 613 S.E.2d at 333.\nSimilarly, Officer McQueen\u2019s testimony cannot be \u201cdouble hearsay\u201d because it was not admitted for the purpose of proving the truth of the matter asserted. \u201c[0]ut-of-court statements offered for a purpose other than to prove the truth of the matter asserted are not hearsay[.]\u201d State v. Tellez, 200 N.C. App. 517, 526, 684 S.E.2d 733, 739 (2009).\nThis argument is without merit.\nIV. Denial of Request for \u201cMere Presence\u201d Instruction\nIn his third argument, defendant contends that the court erred in denying his request for a \u201cmere presence\u201d instruction to the jury. We disagree.\nA. Standard of Review\nA jury charge will be sufficient if it presents the law of the case in such a manner as to leave no reasonable cause to believe the jury was misled or misinformed. Refusal of a requested charge is not error where the instructions fairly represent the issues. The decision whether to give jury instructions is within the trial court\u2019s sound discretion, and will not be overturned absent an abuse of discretion.\nOsetek v. Jeremiah, 174 N.C. App. 438, 440, 621 S.E.2d 202, 204 (2005) (citations omitted), aff\u2019d, 360 N.C. 471, 628 S.E.2d 760 (2006).\nB. Analysis\nIn the case of State v. Lundy, 135 N.C. App. 13, 519 S.E.2d 73 (1999), the defendant requested a \u201cmer\u00e9 presence\u201d instruction in a case where a second-degree murder charge was submitted to the jury under an acting in concert theory. Lundy, 135 N.C. App. at 22, 519 S.E.2d at 81. This Court held:\nFrom these instructions, the jury could reasonably infer that more than \u201cmere presence\u201d was necessary to find that defendant Evans acted in concert with defendant Lundy. The trial judge made it abundantly clear that to convict defendant Evans of second-degree murder under the theory that he \u201cacted in concert\u201d with defendant Lundy, the jury had to find beyond a reasonable doubt that defendant Evans joined in or shared a common plan with defendant Lundy to commit the offense. We, therefore, hold that the trial court\u2019s instruction on the doctrine of \u201cacting in concert\u201d was without legal error.\nLundy, 135 N.C. App. at 23, 519 S.E.2d at 82.\nAs in Lundy, the trial court\u2019s instructions on acting in concert in the instant case required a finding by the jury that defendant joined in or shared a common plan to commit the robbery.\nThis argument is without merit.\nV. Actions of Trial Court During Jury Deliberations\nIn his fourth argument, defendant contends that the trial court erred in sending exhibits back to the jury room over the objection of defendant and improperly coerced a verdict by playing back certain testimony. We agree that the trial court erred in sending exhibits back to the jury deliberation room over objection of defense counsel, but hold that this was not prejudicial. We disagree that the trial court\u2019s actions coerced a verdict from the jury.\nA. Sending Exhibits to Jury Deliberation Room Over Objections of Defense Counsel\nAfter deliberating for a period of time, the jury requested to review a number of exhibits. After consulting with counsel, outside of the presence of the jury, the trial court directed that the English translations of the statement of Lin and his brother, along with all defense exhibits, be sent back to the jury. Defense counsel objected.\n\u201cUpon request by the jury and with consent of all parties, the judge may in his discretion permit the jury to take to the jury room exhibits and writings which have been received in evidence.\u201d N.C. Gen. Stat. \u00a7 15A-1233(b) (2011). In this case, defendant did not consent to the exhibits going back to the jury room. It was error for the trial court to send the exhibits back to the jury room without defendant\u2019s consent.\nHowever, this does not end our inquiry. Defendant must not only show error, but that he was prejudiced by the error. N.C. Gen. Stat. \u00a7 15A-1443(a).\nThe statutory violation committed by a trial judge in allowing a witness\u2019 statement to go to the jury over objection is corrected by our Court only when it prejudices the defendant. State v. Taylor, 56 N.C. App. 113, 287 S.E.2d 129 (1982). \u201cSuch prejudice obtains only when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises; the burden of showing such prejudice is upon the defendant.\u201d Id. at 115, 287 S.E.2d at 130-31.\nState v. Poe, 119 N.C. App. 266, 273, 458 S.E.2d 242, 247 (1995). See also State v. Thomas, 132 N.C. App. 515, 518-19, 512 S.E.2d 436, 438 (1999) (noting that a defendant must show prejudicial error for a new trial).\nDefendant makes no argument that he was prejudiced by the exhibits going back to the jury room, and, based upon our review of the record and transcript of this case, we discern no prejudice.\nB. Playback of Testimony and Allen Charge\nAt the same time that the jury requested the exhibits, they also requested to hear again the trial testimony of Lin, his brother, and Officer McQueen. The trial court initially denied this request because it appeared that the court reporter would not be able to play back the testimony. After the exhibits were sent back, the jury continued its deliberations, but then sent out a note to the judge stating: \u201cWe are unable to reach an unanimous agreement on any verdict.\u201d The jury was brought into the courtroom. The trial judge inquired: \u201cDo you feel that if I\u2019m able to have witness testimony played over some type of device, that that would change the vote to a unanimous verdict?\u201d The foreperson responded: \u201cI. don\u2019t think it could hurt. I don\u2019t know. I can\u2019t \u2014 can\u2019t predict that.\u201d The jury was excused from the courtroom, and the trial court investigated whether there was any way to play back the testimony for the jury. After determining that it could be done, the testimony of Lin, his brother, and Officer McQueen were played back for the jury, over defendant\u2019s objection. The trial court then gave an Allen charge to the jury in accordance with the provisions of N.C. Gen. Stat. \u00a7 15A-1235.\nDefendant argues that the trial court erred in suggesting that the jury consider additional evidence and in giving the Allen charge. He contends that these actions coerced the jury into reaching a verdict.\nIn deciding whether the trial court coerced a verdict by the jury, the appellate courts must look to the totality of the circumstances. \u201cSome of the factors considered are whether the trial court conveyed an impression to the jurors that it was irritated with them for not reaching a verdict and whether the trial court intimated to the jurors that it would hold them until they reached a verdict.\u201d State v. Porter, 340 N.C. 320, 335, 457 S.E.2d 716, 723 (1995).\nWe hold that the trial court did not improperly coerce a verdict from the jury, based upon the totality of the circumstances. The trial court initially denied the jury\u2019s request to play back testimony, believing that it could not be technologically accomplished. Upon determining that the jury was deadlocked, the court made inquiry as to whether a play back of the testimony would help the jury reach a unanimous verdict. The foreperson indicated that it might help, and the court reporter found a way to play back the testimony. At that point, the trial court had the testimony of the three witnesses played back and delivered an Allen charge. Defendant does not challenge the content of the Allen charge. The actions of the trial court were not coercive and did not improperly force the jury to reach a verdict.\nThis argument is without merit.\nVI. Conclusion\nThe trial court properly denied defendant\u2019s motion to dismiss at the close of all of the evidence. The trial court did not err in allowing Officer McQueen to testify to the statements of Lin obtained through the \u201cLanguage Line\u201d interpreter. It w\u00e1s not error to deny defendant\u2019s request for a jury instruction on \u201cmere presence.\u201d The trial court erred in allowing exhibits to go back to the jury deliberation room over defendant\u2019s objection, but this error was not prejudicial. The trial court did not coerce the jury into reaching a unanimous verdict.\nDISMISSED IN PART, NO PREJUDICIAL ERROR IN PART.\nJudges CALABRIA and BEASLEY concur.\n. Allen v. United States, 164 U.S. 492, 501-02, 41 L. Ed. 528, 530-31 (1896) (approving jury instructions that encourage the jury to reach a verdict after the jury requested additional instructions from the trial court).", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper by Assistant Attorney General Steven Armstrong for the State.", "Brock, Payne & Meece, P.A. by C-. Scott Holmes for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TYRECE DEMONT MASON\nNo. COA11-1563\n(Filed 7 August 2012)\n1. Appeal and Error \u2014 preservation of issues \u2014 variance between name of victim in indictment and at trial\nAlthough defendant contended the trial court erred by denying his motion to dismiss the charges of robbery with a firearm based on the variance between the name of the victim alleged in the indictment and at trial, defendant failed to preserve this argument for appellate review. Even assuming arguendo that defendant preserved this issue for appeal, it would have had no merit.\n2. Robbery \u2014 firearm\u2014motion to dismiss \u2014 alleged variance between evidence and jury instructions \u2014 invited error\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charges of robbery with a firearm even though defendant contended there was a variance between the evidence at trial and the jury instructions. Although defendant contended the trial court should have dismissed the charge of robbery with a firearm and instructed the jury on attempted robbery with a firearm, defendant could not show prejudice. The punishment for both was identical. Further, defense counsel objected to the State\u2019s request for an instruction on attempted robbery with a firearm at trial.\n3. Robbery \u2014 firearm\u2014motion to dismiss \u2014 sufficiency of evidence \u2014 taking\u2014perpetrator\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charges of robbery with a firearm based on alleged insufficient evidence. Viewed in the light most favorable to the State, there was substantial evidence to show an actual taking of property. Further, defendant was present during the robbery and the State presented evidence that he participated in the robbery by rifling through the victim\u2019s pockets.\n4. Constitutional Law \u2014 right to confrontation \u2014 statements of unidentified interpreter \u2014 corroboration\nThe trial court did not violate defendant\u2019s right to confront witnesses in a robbery with a firearm case by admitting statements of an unidentified interpreter. The testimony was not admitted for the purpose of establishing the truth of the matter asserted, but rather was admitted solely for the purpose of corroboration.\n5. Accomplices and Accessories \u2014 acting in concert \u2014 jury instruction \u2014 mere presence\nThe trial court did not err in a robbery with a firearm case by denying defendant\u2019s request for a \u201cmere presence\u201d instruction to the jury. The trial court\u2019s instructions on acting in concert in the instant case required a finding by the jury that defendant joined in or shared a common plan to commit the robbery.\n6. Evidence \u2014 sending exhibits to jury room \u2014 playing back testimony \u2014 no coercion\nThe trial court did not err in a robbery with a firearm case by sending exhibits back to the jury room over defendant\u2019s objection, nor did it improperly coerce a verdict by playing back certain testimony. Although it was error for the trial court to send the exhibits back to the jury room without defendant\u2019s consent, there was no prejudice. Further, the trial court\u2019s actions were not coercive and did not improperly force the jury to reach a verdict.\nAppeal by defendant from judgment entered 28 April 2011 by Judge Robert H. Hobgood in Durham County Superior Court. Heard in the Court of Appeals 25 April 2012.\nAttorney General Roy Cooper by Assistant Attorney General Steven Armstrong for the State.\nBrock, Payne & Meece, P.A. by C-. Scott Holmes for defendant-appellant." }, "file_name": "0223-01", "first_page_order": 233, "last_page_order": 244 }