in the Court of Appeals 28 January 2019.
by Defendant from Judgments entered 16 January 2018 by Judge
William W. Bland in Onslow County, Nos. 15 CRS 54673, 15 CRS
54665 Superior Court.
Attorney General Joshua H. Stein, by Assistant Attorney
General James D. Concepción, for the State.
Law Office of Bruce T. Cunningham, Jr., by Bruce T.
Cunningham, Jr., for defendant-appellant.
and Procedural Background
A. Cox (Defendant) appeals from his convictions for
Conspiracy to Commit Armed Robbery with a Dangerous Weapon
and Felonious Breaking or Entering. The evidence presented at
trial tends to show the following:
prior to the night of 8 August 2015, Defendant gave Richard
Linn (Linn) $20.00 to purchase Percocet tablets or other
drugs. Linn testified he regularly used Angela Leisure
(Leisure) as a go-between to purchase drugs. On this
occasion, Linn added his own money to Defendant's and
gave Leisure approximately $50.00 or $60.00. Leisure admitted
she never purchased the drugs and never returned the money to
further testified on the evening of 8 August 2015, Defendant
and his girlfriend, Ashley Jackson (Jackson), arrived at
Linn's house and demanded he come outside. Defendant was
standing outside with a gun in his hand and told Linn to
"get in the car." Linn stated Defendant and Jackson
wanted to go to Leisure's house "to talk to her
about their money." After getting in the car, Linn
directed Defendant to Leisure's house.
boyfriend, Daniel McMinn (McMinn), testified he was standing
outside of Leisure's home when Defendant, Jackson, and
Linn arrived. Jackson asked McMinn where Leisure was. Jackson
and Defendant entered the house and McMinn followed. After
entering the home, Jackson attacked Leisure by pulling her
hair, punching her, and forcing her to the ground. Leisure
recalled Jackson saying, "give me my money" or
"give me the money." McMinn testified he reached
for his cell phone to call the police, but he stopped when he
saw Defendant display a handgun "in a threatening
several minutes of fighting, Linn called Jackson off, saying:
"I think she's had enough. Come on, let's
go." Defendant, Jackson, and Linn left the house. Linn
testified once outside Defendant turned and kicked a hole in
the door. Defendant also fired a shot into Leisure's
home, which struck a mirrored door inside the home.
Defendant, Jackson, and Linn left Leisure's home without
obtaining any money or personal property.
on these events, Defendant was arrested and charged with
First-Degree Burglary, Conspiracy to Commit Robbery with a
Dangerous Weapon, and Discharging a Weapon into an Occupied
Property. Following the State's presentation of
evidence, Defendant moved to dismiss all charges. This Motion
Defendant presented evidence, including his own testimony.
Defendant's evidence tended to show he went to Linn's
house on 8 August 2015 to give Linn $20.00 to purchase pain
relievers for Jackson. Later in the evening, Linn requested
Defendant pick him up because Leisure had taken the money and
would not answer his phone calls. Linn said he would talk to
Leisure in person and get Defendant's money back.
Defendant claimed no one, including himself, had a weapon on
8 August 2015 and that Jackson kicked in the door, not
Defendant. At the close of all the evidence, Defendant
renewed his Motion to Dismiss all charges, which the trial
instructing the jury, the trial court provided the jury with
written copies of its jury instructions. After deliberating
for approximately two hours, the jury returned a note with
two questions related to the Conspiracy charge: The first
question stated, "Can we get clarification of 'While
the defendant knows that the defendant is not entitled to
take the property, '" which was part of the
definition in the jury instructions on Conspiracy to Commit
Robbery with a Dangerous Weapon. The jury's second
question asked, "Is it still Robbery to take back one
owns [sic] property?" After conferring with counsel, and
without any objection by Defendant's trial counsel, ...