State v. Gamble

• Court: Court of Appeals of North Carolina
• Decided: June 4, 2025
• Docket: 24-842
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-842

Filed 4 June 2025

Mecklenburg County, Nos. 22CR214640-590 22CR214643-590 22CR214644-590

STATE OF NORTH CAROLINA

v.

AMARI DIJAI GAMBLE

Appeal by defendant from judgment entered 18 January 2024 by Judge

Justin N. Davis in Mecklenburg County Superior Court. Heard in the Court of

Appeals 10 April 2025.

Attorney General Jeff Jackson, by Assistant Attorney General Natalia K. Isenberg, for the State.

Office of the Public Defender, Assistant Public Defender, by Julie Ramseur Lewis, for the defendant-appellant.

TYSON, Judge.

Amari Dijai Gamble (“Defendant”) appeals from convictions and judgments

entered upon a jury’s verdicts of guilty of robbery with a dangerous weapon,

conspiracy to commit robbery with a dangerous weapon and felonious fleeing to elude.

We discern no error.

I. Background

Dorothy Newton (“Newton”) resided in her townhome with her eight-year-old

son and her seventeen-year-old daughter, Kamya Little (“Little”). Late one evening, STATE V. GAMBLE

Opinion of the Court

Newton was going to lock the back door to her townhouse when she discovered an

unknown black male inside of her kitchen. He was dressed in all black and his face

was concealed by a mask with only his eyes being visible. When Newton demanded

for the man to leave her home, Little asked her mother not to make him leave, and

she threatened to go with the man, if she did. Little ultimately left the home with

the unknown male, at which point Newton locked the door and went upstairs to bed.

Later that night, Newton awoke to sounds of footsteps coming up the stairs

towards her room. Little and the unknown male – still masked and now holding a

rifle – entered her room. The male did not speak or make demands and never pointed

the rifle directly in her direction. In recalling the incident to responding Charlotte-

Mecklenburg Police Officer Alexa Odom, Newton reported the unknown male was

“pointing the gun out and it was held by two hands” while he was in her bedroom.

Newton testified she pleaded with Little and the unknown male to leave and not harm

her, and she “thought she was going to die.”

When Newton saw Little walk around the bed and grab her purse, she grabbed

her phone, pushed the man to the side to reach the bedroom door, and ran down the

stairs. After Newton ran out of her house, she witnessed Little and the unknown

male together exited her townhouse with Little carrying two purses belonging to

Newton. Little and the male entered Newton’s Ford Escape vehicle and drove off.

After watching them drive away, Newton re-entered her house and called 911 to

report the incident.

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Charlotte-Mecklenburg Police Officer Steven Hesseman responded to the 911

call and intercepted the Ford Escape while traveling towards Newton’s home. Officer

Hessman made a U-turn and followed the vehicle. After an erratic chase involving

multiple officers, the vehicle was intercepted at the 800 block of 8th Street in

Charlotte and the unknown male was arrested and detained. The male in the vehicle

was identified as Defendant.

Defendant was indicted for robbery with a dangerous weapon, felonious fleeing

to elude arrest, and conspiracy to commit robbery with a dangerous weapon. The jury

convicted Defendant of all indicted charges. Defendant’s convictions for robbery with

a dangerous weapon and conspiracy to commit robbery with a dangerous weapon

were consolidated for judgment. He was sentenced as a prior record level I offender

with 0 points to an active term of 64 to 89 months imprisonment. Defendant was also

sentenced to an active term of 6 to 17 months imprisonment for his conviction for

felony fleeing to elude. The sentences were ordered to run consecutively. Defendant

appeals.

II. Jurisdiction

Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b) and §

15A-1444(a) (2023).

III. Issues

Defendant argues the trial court erred by refusing to instruct the jury on the

lesser-included offense of common law robbery, on mere possession of a firearm, and

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by the trial court’s response to the jury’s questions concerning the threatening and

endangering element of robbery with a dangerous weapon.

IV. Lesser Included Offense of Common Law Robbery

Defendant argues the trial court erred by refusing to instruct the jury on the

lesser-included offense of common law robbery.

A. Standard of Review

Trial court jury instructions are reviewed on appeal de novo. State v. Redmond,

266 N.C. App. 580, 582, 831 S.E.2d 650, 652 (2019). Under de novo review, the

appellate court “considers the matter anew and freely substitutes its own judgment

for that of the lower tribunal.” State v. Williams, 362 N.C. 628-632-33, 669 S.E.2d

290, 294 (2008) (citation and quotation marks omitted).

“Choice of instruction is a matter within the trial courts discretion and will not

be overturned absent a showing of abuse of discretion.” State v. Nicholson, 355 N.C.

1, 66, 448 S.E.2d 109, 152 (2002) (citation omitted). “An instruction on a lesser-

included offense must be given only if the evidence would permit the jury rationally

to find [the] defendant guilty of the lesser offense and to acquit him of the greater.”

State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771 (2002).

B. Analysis

1. Lesser-Included Offense

Defendant contends the instruction of the lesser-included offense of common

law robbery was warranted by the evidence because the State failed to unequivocally

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demonstrate Newton’s life was threatened or endangered during the course of the

robbery. Threatening or endangering the life of a person is an essential element to

the crime of robbery with a dangerous weapon. See State v. Oldroyd, 380 N.C. 613,

618, 869 S.E.2d 193, 197 (2022) (citation omitted); see also N.C. Gen. Stat. § 14-87(a)

(2023). Defendant claims the lack of evidence to support those elements warranted

the lesser-included instruction on common law robbery.

“If . . . the State’s evidence is clear and positive with respect to each element

of the offense charged and there is no evidence showing the commission of the lesser

included offense, it is not error for the trial judge to refuse to instruct the jury on the

lesser offense.” State v. Clevenger, 249 N.C. App. 383, 392, 791 S.E.2d 248, 255 (2016)

(citing State v. Hardy, 299 N.C. 445, 456, 263 S.E.2d 711, 718-19 (1980)) (internal

quotation omitted).

It is necessary to instruct the jury of a lesser-included offense “when and only

when the jury could find that such [an] included crime of lesser degree was

committed.” Id. at 393, 263 S.E.2d at 255-56 (citation omitted). “Hence, there is no

such necessity if the State’s evidence tends to show a completed robbery and there is

no conflicting evidence relating to elements of the crime charged.” Id.

2. Armed Robbery

Armed robbery is a three-element offense requiring: (1) the unlawful taking or

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; and, (3) whereby

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the life of a person is endangered or threatened. State v. Hill, 365 N.C. 273, 275, 715

S.E.2d 841, 843 (2011) (citation omitted). This Court has previously held “in cases

where the State’s evidence establishes that a defendant held a dangerous weapon

that was seen by the victim or a witness during the course of the robbery, the third

element of armed robbery is satisfied.” State v. Wright, 252 N.C. App. 501, 508, 798

S.E.2d 785, 790 (2017).

A dangerous weapon in the possession of a defendant held in a “manner and

circumstance[]” that alludes to a harmful purpose provides sufficient evidence to

support submission of a robbery with a dangerous weapon charge. See State v.

Whisenant, 249 N.C. App. 456, 459, 791 S.E.2d 122, 125 (2016) (explaining that a

defendant wielding an unopened knife during the commission of a robbery along with

threats was sufficient to endanger the victim and uphold a charge of robbery with a

dangerous weapon).

Following a jury charge conference with counsel, the trial court declined to give

the common law robbery instruction in light of the totality of the evidence presented.

The trial court noted Defendant’s openly brandishing a deadly weapon is different

than mere possession and the lesser-included offense instruction was inappropriate

in light of the circumstances. Id.

Defendant does not contest the evidence produced by the State was sufficient

to satisfy elements one and two of the robbery with a dangerous weapon charge.

Defendant argues the State failed to present sufficient evidence tending to show

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Newton’s life was endangered or threatened by the presence of the rifle during the

robbery. Id. The police report taken after the robbery and the testimony at trial both

reflect Newton visibly saw Defendant holding the rifle with both hands from the time

he entered her bedroom in the middle of the night until she ran past him in the

bedroom and out of the house. No conflicting evidence was offered to negate Newton’s

assertion she was visually aware of and threatened by Defendant’s possession of the

rifle during the commission of the robbery to the point Newton “thought she was going

to die.” Sufficient evidence was proffered to support element three. Id.

The State produced sufficient evidence to support each of the three elements

of robbery with a dangerous weapon. A lesser-included offense instruction was not

warranted or required to be given by the trial court. Clevenger, 249 N.C. App. at 392,

791 S.E.2d at 255. The trial court did not err by denying Defendant’s request for the

instruction on lesser-included common law robbery. Id.

V. Mere Possession of a Firearm

Defendant argues the trial court erred by refusing his request to instruct the

jury that mere possession of a firearm, in itself, does not constitute endangering or

threatening a victim. Defendant requested for the jury instructions to include

language distinguishing mere possession of a weapon from possession that endangers

or threatens the life of the victim as is referenced in Footnote 7 of the North Carolina

Pattern Jury Instructions. N.C.P.I. – Crim. 217.20 fn. 7.

The trial court denied Defendant’s request for inclusion of the mere possession

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language, reasoning the evidence clearly indicated the deadly weapon was

brandished by Defendant during the robbery, and instructing the jury on mere

possession might cause confusion.

“[C]hoice of instruction[] is a matter within the trial court’s discretion and will

not be overturned absent a showing of abuse of discretion.” Nicholson, 355 N.C. at

66, 558 S.E.2d at 152 (citation omitted). If a request is made for a special instruction,

“which is correct in itself and supported by evidence, the court must give the

instruction at least in substance.” State v. Blair, 181 N.C. App. 236, 242, 638 S.E.2d

914, 919 (2007). The evidence must support the defendant’s requested instruction,

otherwise the trial court is not required to give it. See Id.

A “defendant’s mere possession of a weapon – without more – during the course

of a robbery is insufficient to support a finding that the victim’s life was endangered

or threatened.” State v. Wright, 252 N.C. App. at 507, 798 S.E.2d at 789 (citing State

v. Gibbons, 303 N.C. 484, 488, 279 S.E.2d 574, 577 (1981)). To satisfy the elements

of robbery with a dangerous weapon, the State must present evidence “aside from the

mere fact of the weapon’s presence.” Id. at 507-08, 798 S.E.2d at 789 (citation

omitted). An instruction on mere possession is appropriate in situations where a gun

is present but neither the victim nor any bystanders actually saw the weapon during

the course of the robbery. See Id. at 252 N.C. App. at 508, 798 S.E.2d at 790 (citation

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omitted).

The State’s evidence is unequivocal tending to show Defendant was holding

the rifle in plain sight during the commission of the robbery in Defendant’s bedroom

during the middle of the night after an earlier home intrusion. Because Newton

clearly saw the rifle and was threatened by Defendant’s brandishing the firearm, to

the point she “thought she was going to die,” Defendant’s request for a mere

possession instruction was not supported by evidence. The trial court did not err in

denying Defendant’s request for a mere possession of a weapon instruction. Id.

VI. Jury Instructions and Response to Jury’s Questions

Defendant next argues the trial court committed prejudicial or plain error by

failing to answer the jury’s questions concerning an essential element of robbery with

a firearm.

The trial court’s decision to answer a jury question, or to choose to repeat

previously given instructions, is reviewed for an abuse of discretion. See State v.

Hazel, 243 N.C. App. 741, 744, 779 S.E.2d 171, 173-74 (2015); see also State v. Smith,

194 N.C. App. 120, 126, 669 S.E.2d 8, 12-13 (2008). After the jury retires for

deliberation, the court may provide additional instructions to correct or withdraw an

erroneous instruction, clarify an ambiguous instruction, or instruct the jury on a

point of law which should have been covered in the original instructions. N.C. Gen.

Stat. § 15A-1234(a) (2023). Failure to object to an erroneous instruction or to

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erroneous failure to give an instruction does not constitute a waiver of the right to

appeal on that error in accordance with Gen. Stat. 15A-1446(d)(13). N.C. Gen. Stat. §

15A-1231(d) (2023).

Preserved and unpreserved errors are treated differently on appeal. State v.

Lawrence, 356 N.C. 506, 512, 723 S.E.2d 326, 330 (2012). Issues are preserved for

appeal by Defendant’s timely objection at trial and are sufficient to serve as the basis

for error. State v. Black, 308 N.C. 736, 739, 303 S.E.2d 804, 806 (1983). “No party

may [argue] as error any portion of the jury charge or omission therefrom unless he

objects thereto before the jury retires to consider its verdict, stating distinctly that to

which he objects and the grounds of his objection.” Id. Preserved legal errors are

reviewed under the harmless error standard. N.C. Gen. Stat. § 15A-1443(a) (2023).

Plain error review allows appellate courts to bypass preservation rules in

certain “exceptional circumstances.” See Lawrence, 356 N.C. at 514-15, 723 S.E.2d

at 332. Our Supreme Court has held the plain error standard “applies only when the

alleged error is unpreserved, and it requires the defendant to bear the heavier burden

of showing that the unpreserved error rises to the level of plain error. See State v.

Melvin, 364 N.C. 589, 593-94, 707 S.E.2d 629, 632-33 (2010).

[T]he plain error rule…is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or “where [the error] is grave error which amounts to a denial of a fundamental right or the accused,” or the error

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has “resulted in a miscarriage of justice or in the denial to appellant of a fair trial”…or where it can be fairly said “the instructional mistake had a probable impact on the jury’s finding that the defendant was guilty.”

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation omitted).

The plain error standard does not require every improper instruction to

mandate reversal of the judgment or set aside the verdict. Lawrence, 356 N.C. at 517,

723 S.E.2d at 333-34. It is a rare case where improper instructions will justify

reversal of a criminal conviction judgment when no objection has been made in the

trial court. Id.

Defendant contends the trial court’s response to the jury’s questions during

deliberation was prejudicial error. Defendant also argues if the jury instruction issue

is determined to be improperly preserved, the trial court committed plain error in

instructing or responding to the jury.

The trial judge and counsel discussed how to respond to questions presented

by the jury during deliberations. The trial judge decided to call the jury back into the

courtroom to re-read the initial jury instructions, to re-watch the police officer’s body

camera footage, and then address the jury’s questions related to the threatening and

endangering element of robbery with a firearm. At this time, defense counsel

formally objected and requested an instruction to be given stating that mere

possession of a weapon alone does not satisfy the elements for robbery with a firearm.

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Alternatively, defense counsel argued if mere possession of a weapon was not

instructed over objection, the jury should be told arguments by counsel are permitted.

The trial judge proceeded with instructing the jury over defense counsel’s objection.

After the jury was dismissed to deliberate following further instruction, defense

counsel verbally renewed his prior objections to preserve the record.

Defendant’s argument regarding the purported impropriety of the trial court’s

response to the jury’s question was properly preserved by objection before and after

the instruction was given. Preserved legal errors are reviewed under the harmless

error standard of review. State v. Jernrette, 236 N.C. App. 616, 637, 763 S.E.2d 404,

417 (2014).

A defendant must show a reasonable possibility of a different result at trial

had the error in question not been committed. Lawrence, 365 N.C. at 513, 723 S.E.2d

at 331. Defendant has not shown the jury would have reasonably returned a different

verdict if the mere possession instruction had been given in response to the jury’s

questions. Defendant failed to show he was prejudiced by the trial court’s jury

instructions to award a new trial. We discern no prejudicial error.

VII. Conclusion

No conflicting evidence negates the three elements to establish submission of

robbery with a dangerous weapon to require an instruction on mere possession.

Defendant cannot demonstrate the evidence required the trial court to instruct the

jury on the lesser-included offense of common law robbery. Defendant cannot show

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he was prejudiced by the trial court’s responses to addressing the jury’s clarifying

questions.

Defendant received a fair trial, free from prejudicial errors he preserved and

argued. We discern no error in the jury’s verdicts or in the judgments entered

thereon.

It is so ordered.

NO ERROR.

Chief Judge DILLON and Judge GORE concur.

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