State v. Calderon

774 S.E.2d 398, 242 N.C. App. 125
CourtCourt of Appeals of North Carolina
DecidedJuly 7, 2015
DocketNo. COA14–1131.
StatusPublished
Cited by4 cases

This text of 774 S.E.2d 398 (State v. Calderon) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Calderon, 774 S.E.2d 398, 242 N.C. App. 125 (N.C. Ct. App. 2015).

Opinion

McGEE, Chief Judge.

*126Jesus Calderon ("Defendant Calderon") and Christopher Lashon Miller, Jr. ("Defendant Miller") (collectively "Defendants") appeal from judgments entered upon jury verdicts finding Defendants each guilty of four counts of robbery with a firearm and two counts of attempted robbery with a firearm, and finding Defendant Calderon guilty of one count of possession of a firearm by a felon. We find no prejudicial error.

I. Facts and Procedural History

The evidence at trial tended to show that Christopher Moore ("Mr. Moore") and Defendants were "chilling, smoking [marijuana], and drinking" at an apartment complex in Shelby, North Carolina, on 5 June 2013. They ran out of marijuana and decided to walk to the neighboring Ramblewood Apartments complex ("Ramblewood") "to go rob somebody for some weed." Defendant Calderon, armed with a twenty-two-caliber pistol, and Defendant Miller, armed with a nine-millimeter pistol, walked with Mr. Moore to Bobbie Yates's apartment ("the apartment") in Ramblewood to steal marijuana, since Mr. Moore said he had previously purchased marijuana from Bobbie Yates and believed there would be marijuana in the apartment. When Defendants and Mr. Moore approached Ramblewood, they encountered Bobby Hamrick ("Mr. Hamrick"), who was standing outside the apartment and who told them: "They're having a card game. There ain't no weed up there." When Defendants and Mr. Moore learned from Mr. Hamrick that there was an ongoing card game with "such a[sic] amount of money" on the table, they left Ramblewood *127and returned to the apartment complex, where they retrieved a shotgun for Mr. Moore. Defendants and Mr. Moore, all now armed, returned to the apartment in Ramblewood.

There were a number of people in the apartment, including Bobbie Yates, Cordell Yates, Mr. Hamrick, Terrance Norris ("Mr. Norris"), Anthony Charles ("Mr. Charles"), Troy Vinson ("Mr. Vinson"), Terris Parker ("Mr. Parker"), and Jackie Allen ("Mr. Allen"), as well as the ten-year-old son of Mr. Charles. Bobbie Yates, Cordell Yates, Mr. Charles, Mr. Hamrick, and Mr. Vinson were seated around the kitchen table playing poker, and each of the men had money on the table. Others, including Mr. Charles's ten-year-old son, were seated on one part of a sectional couch in the adjoining living room, and Mr. Allen, who had been drinking alcohol earlier in the evening, was either "passed out" or asleep on another part of the couch. The apartment had an open floor plan, so there was no wall or barrier separating the kitchen from the living room.

*402As the card game continued, there was a knock on the front door and when the door was opened, Defendants and Mr. Moore "rushed in," all with weapons in hand. As they pointed their weapons at the people in the apartment, one of them announced: "Where it at? You know what time it is." Several of the people in the apartment testified that they knew or recognized Defendants and Mr. Moore.

Once Defendants and Mr. Moore entered the apartment, Defendants stood with their weapons raised and pointed at the people in the apartment while Mr. Moore grabbed the $200.00 to $300.00 off the kitchen table and searched through some of the people's pockets, and Mr. Hamrick's socks, for more money. Mr. Moore held his shotgun in his left hand as he proceeded to take the money off the table and from the people in the apartment and put it in his pocket.

One of the people in the living room testified that, when Mr. Moore approached Mr. Parker, Mr. Parker refused to give Mr. Moore his money, stating: "If you all motherf---ers want my money, you got to go in my pocket and get it yourself because I ain't going to give you my money out of my pocket. You got to go in there and get it yourself." Mr. Moore then pressed the barrel of his shotgun to Mr. Parker's forehead, said, "Motherf---er, I kill you," and reached inside Mr. Parker's pockets and took his money. Mr. Charles, whose attention was on the living room where his son was located throughout the robbery, saw Mr. Moore search through Mr. Allen's pockets as he lay on the couch, either "passed out" or asleep, although no witness saw Mr. Moore take any money from Mr. Allen. The entire robbery lasted between two and four minutes, and *128after the money was collected, Defendants and Mr. Moore told the people not to leave the apartment for ten minutes "or they was [sic] going to kill whoever came the f--- out." As soon as Defendants and Mr. Moore left the apartment, one of the people in the apartment called the police.

Mr. Moore pleaded guilty to nine counts of armed robbery and agreed to testify at Defendants' trial. Defendants were each indicted on multiple counts of robbery with a dangerous weapon. Defendant Calderon was also indicted on one count of possession of a firearm by a felon. Defendants were tried jointly. At trial, Defendants moved to dismiss the charges at the close of the State's evidence and at the close of all of the evidence. Two counts of robbery with a dangerous weapon were dismissed against each Defendant, and two counts were reduced to attempted robbery with a firearm.

Defendant Calderon was found guilty by a jury of four counts of robbery with a firearm, two counts of attempted robbery with a firearm, and one count of possession of a firearm by a felon, and was sentenced to two consecutive terms of 73 months to 100 months' imprisonment for the robbery and attempted robbery convictions, and to one term of fourteen to twenty-six months' imprisonment for the possession of a firearm by a felon conviction, to begin upon the expiration of the other sentences.

Defendant Miller was found guilty by a jury of four counts of robbery with a firearm and two counts of attempted robbery with a firearm, and was sentenced to two consecutive terms of sixty-four to eighty-nine months' imprisonment. Both Defendant Calderon and Defendant Miller appeal.

II. Not Guilty Mandate in Jury Instructions

Defendant Calderon first contends the trial court erred by failing to provide a "not guilty" mandate to the jury when the court gave its instruction on the offense of robbery with a firearm and on the lesser-included offense of common law robbery. Defendant Calderon asserts that, because the trial court's charge to the jury diverged from the pattern jury instructions and did not expressly instruct the jury on its duty to return a verdict of not guilty if certain conditions were met, he was deprived of his fundamental right to have all permissible verdicts submitted to the jury and thus requires a new trial. We disagree.

"Because [Defendant Calderon] did not object at trial to the omission of the not guilty option from the trial court's final mandate to the jury, we review the trial court's actions for plain error." See State v.

*403McHone, 174 N.C.App. 289, 294, 620 S.E.2d 903, 907 (2005),

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Massey
Court of Appeals of North Carolina, 2026
State v. Velasquez-Guevara
Court of Appeals of North Carolina, 2025
State v. Teel
Court of Appeals of North Carolina, 2024
State v. Baldwin
Court of Appeals of North Carolina, 2021

Cite This Page — Counsel Stack

Bluebook (online)
774 S.E.2d 398, 242 N.C. App. 125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-calderon-ncctapp-2015.