{
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  "name": "STATE OF NORTH CAROLINA v. KEVIN CHRISTOPHER ROGERS",
  "name_abbreviation": "State v. Rogers",
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      "Judges ELMORE and STROUD concur."
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      "STATE OF NORTH CAROLINA v. KEVIN CHRISTOPHER ROGERS"
    ],
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      {
        "text": "STEELMAN, Judge.\nWhere there was substantial evidence that defendant committed the crimes charged, the trial court did not err in denying each of defendant\u2019s motions to dismiss. Where the trial court\u2019s instruction to the jury on first-degree burglary cited the underlying felony as robbery with a dangerous weapon, rather than felony larceny as set forth in the indictment, any error was not prejudicial. Where the State presented substantial evidence of defendant\u2019s premeditation, deliberation and intent to commit first-degree murder, and defendant directs us to no contradictory evidence in the record, the trial court did not err in declining to instruct the jury on the lesser included offense of second-degree murder.\nI. Factual and Procedural Background\nOn 24 August 2009, the body of Sean Lesane (Lesane) was discovered in his mobile home by his father. There were no signs of forced entry or of a struggle. Four bullets were found in Lesane\u2019s body. An autopsy revealed that the cause of death was multiple gunshot wounds.\nThe shell casings were .40 caliber Smith and Wesson shells, fired from the same gun. The six bullets were .40 caliber hollow point bullets. The gun was not recovered.\nLaterra Ross (Ross), the girlfriend of Kevin Rogers (defendant), testified that she knew Lesane, from whom she periodically received money and drugs. She testified that defendant decided to rob Lesane. On the evening of 20 August 2009, Lesane picked her up and took her to his mobile home where they used drugs. She borrowed Lesane\u2019s phone and called defendant, describing the location of the residence and unlocking the front door. When defendant arrived, Ross fled. As she fled, she heard gunshots, and heard Lesane begging for his life. When she returned, Lesane appeared to be dead. Defendant then retrieved money and drugs from a vent above the bathroom door, at which point defendant and Ross left the house. Ross further testified that defendant first buried the .40 caliber hand gun used in the crimes, and then later dug it up and threw it into a river.\nIn January of 2010, Ross and defendant were arrested in Georgia and brought back to Bladen County. Ross pled guilty to robbery with a dangerous weapon and aiding and abetting first-degree burglary.\nDefendant was indicted for the felonies of aiding and abetting robbery with a dangerous weapon, conspiring to commit robbery with a dangerous weapon, first-degree murder, robbery with a dangerous weapon, and first-degree burglary. On 8 December 2011, the jury found defendant guilty of first-degree murder based upon both premeditation and deliberation and felony murder. Defendant was also found guilty of robbery with a dangerous weapon, first-degree burglary, and conspiracy to commit robbery with a dangerous weapon. The State voluntarily dismissed the charge of aiding and abetting robbery with a dangerous weapon. The trial court sentenced defendant to life imprisonment for the first-degree murder charge. The trial court also sentenced defendant to a consecutive sentence of 29-44 months for conspiracy to commit robbery with a dangerous weapon. The trial court consolidated the remaining two convictions, and imposed a concurrent sentence of 61-83 months.\nDefendant appeals.\nII. Failure to Dismiss Ex Mero Motu\nIn his first argument, defendant contends that the trial court erred in failing to dismiss, ex mero motu, the \u201cshort form\u201d first-degree murder indictment. We disagree.\nDefendant concedes in his brief that this issue has been decided against him. See e.g. State v. Braxton, 352 N.C. 158, 174-75, 531 S.E.2d 428, 437-38 (2000); State v. Brown, 320 N.C. 179, 191, 358 S.E.2d 1, 11 (1987). Our courts have repeatedly held that a short form indictment for first-degree murder pursuant to N.C. Gen. Stat. \u00a7 14-17 is not fatally defective for failure to specify whether it is based on premeditation and deliberation, felony murder, or other theories articulated in the statute.\nThis argument is without merit.\nIII. Denial of Motions to Dismiss\nIn his second, third, and sixth arguments, defendant contends that the trial court erred in denying his motions to dismiss the charges against him based upon the insufficiency of the evidence. We disagree.\nA. Standard of Review\n\u201cThis Court reviews the trial court\u2019s denial of a motion to dismiss de novo.\u201d State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).\n\u201cUpon defendant\u2019s motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense. If so, the motion is properly denied.\u201d State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).\n\u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).\n\u201cIn making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.\u201d State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).\nB. Analysis\n1. First-Degree Murder\n\u201cIn order to convict a defendant of premeditated, first-degree murder, the State must prove: (1) an unlawful killing; (2) with malice; (3) with the specific intent to kill formed after some measure of premeditation and deliberation.\u201d State v. Bonilla, 209 N.C. App. 576, 582, 706 S.E.2d 288, 293 (2011); N.C. Gen. Stat. \u00a7 14-17(a) (2011). Defendant contends that the State failed to present evidence that defendant intentionally killed Lesane with premeditation and deliberation.\nPremeditation and deliberation are mental processes. Generally, they are not subject to proof by direct evidence but must be proved, if at all, by circumstantial evidence. Among other circumstances from which premeditation and deliberation may be inferred are \u201c(1) lack of provocation on the part of the deceased, (2) the conduct and statements of the defendant before and after the killing, (3) threats and declarations of the defendant before and during the occurrence giving rise to the death of the deceased, (4) ill-will or previous difficulties between the parties, (5) the dealing of lethal blows after the deceased has been felled and rendered helpless, (6) evidence that the killing was done in a brutal manner, and (7) the nature and number of the victim\u2019s wounds.\u201d\nState v. Keel, 337 N.C. 469, 489, 447 S.E.2d 748, 759 (1994) (citing State v. Gladden, 315 N.C. 398, 430-31, 340 S.E.2d 673, 693, cert. denied, 479 U.S. 871, 93 L.Ed.2d 166 (1986)).\nIn the instant case, Ross testified that she heard Lesane beg for his life. A victim\u2019s pleas for his life are competent evidence of a lack of provocation. State v. Spence, 271 N.C. 23, 34, 155 S.E.2d 802, 811 (1967), vacated on other grounds, 392 U.S. 649, 88 S. Ct. 2290, 20 L. Ed. 2d 1350 (1968). The State also presented evidence that Lesane\u2019s body had eight gunshot wounds, primarily in the head and chest, with four bullets found inside Lesane\u2019s body. The nature and number of a victim\u2019s wounds are circumstances from which premeditation and deliberation may be inferred. Keel, 337 N.C. at 489, 447 S.E.2d at 759. Further, there was a lack of provocation. The State\u2019s evidence showed that defendant went to Lesane\u2019s trailer with the express purpose of committing robbery. Considering this, and the other evidence in the record, in a fight most favorable to the State, we hold that there was substantial evidence presented to support a conclusion that defendant killed Lesane with premeditation and deliberation.\nDefendant further contends that there was insufficient evidence to find defendant guilty of first-degree murder based upon felony murder. However, because the trial court did not arrest judgment on defendant\u2019s conviction for robbery with a dangerous weapon, but imposed judgment on the underlying felony, analysis of felony murder is irrelevant. See State v. Robinson, 342 N.C. 74, 82-83, 463 S.E.2d 218, 223 (1995) (holding that \u201cwhere defendant is convicted of first-degree murder based upon both premeditation and deliberation and felony murder, the underlying felony does not merge with the murder conviction and the trial court is free to impose a sentence thereon.\u201d (quoting State v. Bell, 338 N.C. 363, 394, 450 S.E.2d 710, 727 (1994), cert. denied, 515 U.S. 1163, 132 L.Ed.2d 861 (1995))).\nThis argument is without merit.\n2. Robbery with a Dangerous Weapon\n\u201cUnder N.C.G.S. \u00a7 14-87(a), \u2018[t]he essential elements of robbery with a dangerous weapon are: (1) an unlawful taking or an attempt to take personal property from the person or in the presence of another; (2) by use or threatened use of a firearm or other dangerous weapon; (3) whereby the life of a person is endangered or threatened.\u2019 \u201d State v. Gwynn, 362 N.C. 334, 337, 661 S.E.2d 706, 707-08 (2008) (citations omitted); see N.C.G.S. \u00a7 14-87(a) (2011). Defendant contends that the State failed to present evidence that the robbery and use of force were part of a continuous transaction.\nDefendant contends that the State\u2019s evidence of what occurred after Ross left the trailer is nebulous, depending entirely upon what she heard. However, our standard for review is whether the State presented evidence that \u201ca reasonable mind might accept as adequate to support a conclusion.\u201d Smith, 300 N.C. at 78-79, 265 S.E.2d at 169.\n\u201c[T]he exact time relationship, in armed robbery cases, between the violence and the actual taking is unimportant as long as there is one continuing transaction.\u201d State v. Bellamy, 159 N.C. App. 143, 149, 582 S.E.2d 663, 668 (2003) (quoting State v. Lilly, 32 N.C. App. 467, 469, 232 S.E.2d 495, 496-97 (1977)).\nWe have previously held that a continuous transaction was shown at trial where there was substantial evidence that a defendant killed his victims and took their property, not as a mere afterthought, but with intent. See State v. Blue, 207 N.C. App. 267, 275-76, 699 S.E.2d 661, 667-68 (2010) (continuous transaction existed where evidence showed that defendant attacked victim with intent to take her money); State v. Stitt, 201 N.C. App. 233, 250, 689 S.E.2d 539, 552 (2009) (continuous transaction existed where evidence showed that defendant had intent to take victims\u2019s money and property prior to the shooting).\nIn the instant case, Ross testified that defendant came to Lesane\u2019s mobile home with the intent to rob Lesane, that defendant shot and killed Lesane, and that defendant left with money and drugs taken from the mobile home. This testimony constituted substantial evidence that defendant threatened the victim with a weapon, and that defendant then took Lesane\u2019s property, having formed the intent to do so prior to the shooting, and not merely as an afterthought. The taking and the threat of violence were thus j oined by time and circumstances. Ross\u2019 testimony constituted substantial evidence that the robbery and the shooting were part of a continuous transaction.\nThis argument is without merit.\n3. Conspiracy to Commit Robbery\n\u201cTo hold a defendant hable for the substantive crime of conspiracy, the State must prove an agreement to perform every element of the crime.\u201d State v. Suggs, 117 N.C. App. 654, 661, 453 S.E.2d 211, 215 (1995). Defendant contends that the State failed to show that defendant and Ross agreed to commit robbery with a dangerous weapon. Specifically, defendant asserts that in the planning of the robbery of Lesane between defendant and Ross, there was no evidence that the use of a weapon was discussed.\nIn State v. Bindyke, 288 N.C. 608,220 S.E.2d 521 (1975), our Supreme Court stated:\nA criminal conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means. To constitute a conspiracy it is not necessary that the parties should have come together and agreed in express terms to unite for a common object: A mutual, implied understanding is sufficient, so far as the combination or conspiracy is concerned, to constitute the offense.\nId. at 615-16, 220 S.E.2d at 526 (internal quotations and citations omitted) (emphasis in original).\nIn State v. Johnson, 164 N.C. App. 1, 595 S.E.2d 176, appeal dismissed and disc, review denied, 359 N.C. 194, 607 S.E.2d 658 (2004), three persons agreed to rob three other persons. There was no initial discussion of the use of a weapon. However, as the robbery began, the defendant, Johnson, pointed a sawed-off shotgun at the victims, while the other two robbers stole their wallets. The three robbers then equally divided the swag. We held that \u201c[tjhese facts are sufficient to support a prima facie case that defendant conspired with others to commit robbery with a dangerous weapon at the moment he pointed the gun at the victims.\u201d This was an \u201cimplied understanding to commit robbery with a dangerous weapon.\u201d Id. at 17, 607 S.E.2d at 186.\nThe facts of the instant case also support an \u201cimplied understanding to commit robbery with a dangerous weapon.\u201d Defendant and Ross agreed to rob Lesane. Ross was aware that defendant owned a .40 caliber pistol, which he had used to assault her. After Ross let defendant into Lesane\u2019s mobile home, defendant used that gun to shoot and Mil Lesane. Ross re-entered the mobile home and assisted defendant in the removal of Lesane\u2019s money and drugs. Following the robbery, defendant and Ross together used the drugs to get Mgh, and the money to pay for motel rooms and shopping sprees.\nThe trial court did not err in denying defendant\u2019s motion to dismiss the charge of conspiracy to commit robbery with a dangerous weapon.\nThis argument is without merit.\nIV. Instruction on First-Degree Burglary\nIn his fourth argument, defendant contends that the trial court committed plain error by failing to instruct the jury on the theory of first-degree burglary alleged in the bill of indictment. We disagree.\nA. Standard of Review\nFor error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. See Odom, 307 N.C. at 660, 300 S.E.2d at 378. To show that an error was fundamental, a defendant must establish prejudice \u2014 that, after examination of the entire record, the error \u201chad a probable impact on the jury\u2019s finding that the defendant was guilty.\u201d See id. (citations and quotation marks omitted); see also Walker, 316 N.C. at 39, 340 S.E.2d at 83 (stating \u201cthat absent the error the jury probably would have reached a different verdict\u201d and concluding that although the evidentiary error affected a fundamental right, viewed in. light of the entire record, the error was not plain error). Moreover, because plain error is to be \u201capplied cautiously and only in the exceptional case,\u201d Odom, 307 N.C. at 660, 300 S.E.2d at 378, the error will often be one that \u201cseriously affect[s] the fairness, integrity or public reputation of judicial proceedings,\u201d Odom, 307 N.C. at 660, 300 S.E.2d at 378 (quoting McCaskill, 676 F.2d at 1002).\nState v. Lawrence, _ N.C. _, _ 723 S.E.2d 326, 334 (2012).\nB. Analysis\nThe indictment for first-degree burglary alleged that defendant entered Lesane\u2019s dwelling with intent to commit larceny. However, in its instructions to the jury, the trial court stated that the State had to prove that, \u201cat the time of the breaking and entering the defendant intended to commit robbery with a dangerous weapon within the dwelling house.\u201d Defendant contends that this variance between the indictment and the jury instruction was plain error.\nOur Supreme Court\u2019s decision in State v. Farrar, 361 N.C. 675, 651 S.E.2d 865 (2007), is dispositive of this argument. In Farrar, the defendant\u2019s burglary indictment alleged larceny as the underlying felony. The jury instructions stated that the underlying felony was robbery with a dangerous weapon, and defendant failed to object to the jury instruction at trial. Our Supreme Court, reviewing the issue for plain error, held that defendant had not been prejudiced by the instruction, noting that \u201clarceny is a lesser-included offense of robbery with a dangerous weapon, and thus, the jury instructions actually benefitted defendant by adding an additional element for the State to prove.\u201d Id. at 677, 651 S.E.2d at 866. The Court held this \u201cerror favorable to the defendant\u201d was not prejudicial. Id. at 679, 651 S.E.2d at 867. See also State v. Beamer, 339 N.C. 477, 485, 451 S.E.2d 190, 195 (1994) (holding that, where the jury instruction required the jury to find that defendant committed a crime with more elements than that alleged in the indictment, error was favorable to defendant). We hold that defendant cannot demonstrate prejudice and thus cannot show plain error.\nThis argument is without merit.\nV. Failure to Submit Lesser Included Offense to Jury\nIn his fifth argument, defendant contends that the trial court erred in failing to submit to the jury the lesser included offense of second-degree murder. We disagree.\nA. Standard of Review\n\u201c[Arguments] challenging the trial court\u2019s decisions regarding jury instructions are reviewed de novo by this Court.\u201d State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009).\n\u201cAn instruction on a lesser-included offense must be given only if the evidence would permit the jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater.\u201d State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771 (2002).\nB. Analysis\nDefendant contends that the trial court erred in denying his request that the lesser offense of second-degree murder be submitted to the jury. The distinction between first-degree murder and second-degree murder is that the former requires a showing of premeditation and deliberation. Our Supreme Court has held:\nIf the evidence is sufficient to fully satisfy the State\u2019s burden of proving each and every element of the offense of murder in the first degree, including premeditation and deliberation, and there is no evidence to negate these elements other than defendant\u2019s denial that he committed the offense, the trial judge should properly exclude from jury consideration the possibility of a conviction of second degree minder.\nState v. Locklear, 363 N.C. 438, 454-55, 681 S.E.2d 293, 306 (2009) (quoting State v. Strickland, 307 N.C. 274, 293, 298 S.E.2d 645, 658 (1983), overruled in part on other grounds by State v. Johnson, 317 N.C. 193, 203, 344 S.E.2d 775, 781 (1986)).\nAt trial, the State presented evidence of defendant\u2019s premeditation and deliberation, including Ross\u2019 testimony that Lesane begged for his life, the multiple gunshot wounds, and the lack of provocation. As we have previously stated, this was competent evidence of premeditation and deliberation.\nOn appeal, defendant argues that Ross\u2019 testimony as to what transpired in the trailer was speculative, in that Ross did not actually witness what happened, and thus was not evidence sufficient to support a finding of premeditation and deliberation. However, defendant\u2019s challenge to Ross\u2019 testimony is one of credibility, and the credibility of witnesses is not for this Court to determine. State v. Buckom, 126 N.C. App. 368, 375, 485 S.E.2d 319, 323 (1997) (quoting State v. Hanes, 268 N.C. 335, 339, 150 S.E.2d 489, 492 (1966)). Defendant cites to no other evidence in the record which would suggest a lack of premeditation or deliberation.\nGiven that the State presented evidence of premeditation and deliberation, and there is no evidence in the record to suggest a lack thereof, we hold that the trial court did not err in denying defendant\u2019s request for an instruction on the lesser included offense of second-degree murder.\nThis argument is without merit.\nNO ERROR.\nJudges ELMORE and STROUD concur.",
        "type": "majority",
        "author": "STEELMAN, Judge."
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    "attorneys": [
      "Roy Cooper, Attorney General, by Sonya Calloway-Durham, Special Deputy Attorney General, for the State.",
      "William D. Spence for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. KEVIN CHRISTOPHER ROGERS\nNo. COA12-1415\nFiled 4 June 2013\n1. Homicide \u2014 first-degree murder \u2014 short form indictment\nThe trial court did not err by failing to dismiss ex mero motu the short form first-degree murder indictment because our courts have repeatedly held that it is constitutional.\n2. Homicide \u2014 first-degree murder \u2014 motion to dismiss\u2014 sufficiency of evidence \u2014 premeditation\u2014deliberation\u2014 felony murder\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of first-degree murder. There was substantial evidence presented to support a conclusion that defendant killed the victim with premeditation and deliberation. Since the trial court did not arrest judgment on defendant\u2019s conviction for robbery with a dangerous weapon, but imposed judgment on the underlying felony, analysis of felony murder was irrelevant.\n3. Robbery \u2014 dangerous weapon \u2014 motion to dismiss\u2014 sufficiency of evidence \u2014 continuous transaction\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of robbery with a dangerous weapon. A coparticipant\u2019s testimony constituted substantial evidence that the robbery and the shooting were part of a continuous transaction.\n4. Conspiracy \u2014 motion to dismiss \u2014 sufficiency of evidence\u2014 implied understanding \u2014 robbery with dangerous weapon\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of conspiracy to commit robbery. The facts showed an implied understanding to commit robbery with a dangerous weapon.\n5. Burglary and Unlawful Breaking or Entering \u2014 first-degree burglary \u2014 failure to instruct \u2014 no prejudice\nThe trial court did not commit plain error by failing to instruct the jury on the theory of first-degree burglary alleged in the bill of indictment. Defendant could not demonstrate prejudice.\n6. Homicide \u2014 first-degree murder \u2014 failure to instruct on lesser-included offense \u2014 second-degree murder\nThe trial court did not err in a first-degree murder case by failing to submit to the jury the lesser-included offense of second-degree murder. The State presented evidence of premeditation and deliberation, and there was no evidence in the record to suggest a lack thereof.\nAppeal by defendant from judgments entered 8 December 2011 by Judge Claire V. Hill in Bladen County Superior Court. Heard in the Court of Appeals 11 April 2013.\nRoy Cooper, Attorney General, by Sonya Calloway-Durham, Special Deputy Attorney General, for the State.\nWilliam D. Spence for defendant-appellant."
  },
  "file_name": "0617-01",
  "first_page_order": 627,
  "last_page_order": 637
}