An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA25-625
Filed 6 May 2026
Buncombe County, Nos. 21CR085201-100, 21CR085202-100, 21CR085203-100, 21CR087345-100, 21CR087346-100, 21CR085199-100
STATE OF NORTH CAROLINA
v.
TYRELL DEVON WARREN
Appeal by defendant from judgment entered 1 August 2024 by Judge Craig
Croom in Buncombe County Superior Court. Heard in the Court of Appeals
26 March 2026.
Attorney General Jeff Jackson, by Special Deputy Attorney General Thomas H. Moore, for the State.
Vitrano Law and Mediation, by Sean P. Vitrano, for Defendant-Appellant.
ARROWOOD, Judge.
Tyrell Devon Warren (“defendant”) appeals from judgment entered after trial,
where the jury found him guilty of second-degree murder, possession of a firearm by
a felon, possession of a stolen motor vehicle, hit and run, assault with a deadly
weapon, and robbery with a dangerous weapon. STATE V. WARREN
Opinion of the Court
I. Background
The evidence tended to establish the following narrative of events, beginning
in Asheville on the night of 12 June 2021 and ending with defendant’s arrest in
Monroe on 20 June 2021.
A. Defendant’s Activities between 12 June 2021 and 20 June 2021
On the evening of 12 June outside the AHOPE homeless shelter, Brian Wilson,
Jr. (“Mr. Wilson”), Emily Derrick (“Ms. Derrick”), and Preston Pittman (“Mr.
Pittman”) observed defendant approaching them. Defendant was a convicted felon
living in Asheville and in love with Ms. Derrick, who in turn was involved in a
relationship with Mr. Wilson.
A fight broke out when Mr. Wilson hit Ms. Derrick after defendant called her
“Bae.” The three men were hitting each other with sticks and two-by-fours when Ms.
Derrick called 911 at 11:35 p.m. and reported that one of the men had a gun. Before
police arrived, she saw the gun on the ground and covered it with her jacket.
Defendant was seen walking away from AHOPE when police arrived, and Ms.
Derrick, Mr. Wilson, and Mr. Pittman refused to speak with the officers.
A few hours later, in the early morning of 13 June, Ms. Derrick, Mr. Wilson,
and Mr. Pittman were with another man in a parking lot at the base of the Jeff Bowen
Bridge on Riverside Drive. The men got into a white Subaru and asked Ms. Derrick
to drive, but at that moment, she heard gunshots and hid behind a concrete pillar.
She then saw that Mr. Wilson and Mr. Pittman had fallen on the sidewalk and she
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called 911 again. At the scene, Ms. Derrick told police she did not see the shooter,
but she consented to data extraction from her cell phone. Review of this data allowed
police to identify defendant as a suspect.
Mr. Wilson was pronounced dead at the scene after a gunshot wound to the
chest. During his autopsy, fragments of a .22-caliber bullet were collected from his
chest; Dr. Jerri McLemore stated that “the bullet went through the heart
and . . . through the right lung.” Mr. Pittman was transported to Mission St. Joseph’s
Hospital with a gunshot wound on the upper left side of his chest but was released
after treatment.
Shortly after midnight on 14 June 2021, Ari Sobel (“Mr. Sobel”) reported that
a black male in a hoodie stole his 2012 Kia Optima after threatening him with a gun.
Mr. Sobel had been sleeping in his car near Clingman and Hilliard Avenues, and after
the robbery, he had to flag down a passing driver for help while naked. Police entered
the Kia’s information in the stolen vehicle registry.
Around the time of this first robbery, another robbery took place about a mile
away. John Kopp (“Mr. Kopp”) was walking home from work on Haywood Road when
he was robbed by a black man wearing a black hoodie and a mask. The thief pulled
out a gun, demanded money, and shot at Mr. Kopp when he refused, grazing Mr.
Kopp’s arm. The thief stole his backpack and drove away in a sedan. Mr. Kopp called
police, who determined that he did not require medical attention. Mr. Kopp reported
that he was “pretty sure” the gun was a .22-caliber revolver, but Detective Patrick
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DeStefano (“Detective DeStefano”) observed that the wound “didn’t look consistent
with a through-and-through gunshot,” and instead looked like it was caused by an
“airsoft” pellet or “something similar.” Investigators were later able to place
defendant’s phone at the times and locations of both robberies.
Later that morning, Lucas Haley (“Mr. Haley”) discovered that his 2018 Toyota
Tacoma truck was not in his apartment’s parking lot, and he reported it stolen with
the police. He also reported his vehicle’s information on a public Facebook group
called “West Asheville Exchange.”
Defendant drove Mr. Haley’s Tacoma to Ms. Derrick’s home in the Asheville
Terrace apartment complex that evening to retrieve an audio speaker. A member of
the Facebook group saw the truck enter the complex, and she quickly reported the
sighting. Soon after, Sergeant Bryan Hunter of the Buncombe County Sheriff’s
Department saw the Tacoma and attempted to stop the truck, but defendant fled and
began a high-speed chase. After driving through several residential streets,
defendant crashed the truck in the Five Points neighborhood and fled on foot, stealing
a nearby bicycle. Police searched the crashed Tacoma and recovered a .22-caliber
firearm with one spent round and five live rounds, a black mask, a backpack, and a
wallet with cards in defendant’s name.
In the subsequent days, defendant and Ms. Derrick remained in
communication. Ms. Derrick learned that defendant was a suspect in the 14 June
shootings and warned him not to return home. Defendant also sent Ms. Derrick a
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video, in which he wears a mask and confesses to the killing. Ms. Derrick met
defendant at the IHOP on Tunnel Road, where he pulled up in the stolen Kia and
drove them for about an hour to Monroe. She did not remember which day this drive
occurred.
When the Kia arrived in the Monroe Crossing shopping mall parking lot on
20 June, a license plate reader alerted police to the presence of the stolen Kia. Police
located the empty car and waited for its driver. Exiting the mall, defendant saw the
officers and attempted to run, but a police dog bit him and police took him into
custody. Defendant identified himself and, after police issued Miranda warnings, he
told the officers he “took a life to save a life.”
B. Subsequent Procedural History
On 22 June 2021, after his arrest, Sam Snead (“Mr. Snead”) of the Buncombe
County Public Defender’s Office was appointed to represent him on these charges.
On 1 November 2021, defendant was indicted on charges of first-degree murder,
possession of a firearm by a convicted felon, possession of a stolen motor vehicle,
failure to stop after a hit-and run for property damage, assault with a deadly weapon
with intent to kill, and robbery with a dangerous weapon. That month, Mr. Pittman,
the only eyewitness to the 13 June shooting, died of a drug overdose.
On 18 February 2022, defendant was moved from Buncombe County custody
to Union County. Three days later, he pled guilty in Union County Superior Court to
one count of Felony Possession of a Stolen Motor Vehicle and received an active
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sentence of 10 to 21 months, with a scheduled release on 17 December 2022. The
Union County case concerned the possession of Mr. Sobel’s Kia, recovered in Monroe.
On 19 July 2022, defendant filed a pro se motion requesting a speedy trial
pursuant to N.C.G.S. § 15A-711. On 5 December 2022, the State submitted its
Application and Writ of Habeas Corpus signed by Buncombe County Superior Court
Judge Alan Z. Thornburg. Pursuant to defendant’s motion, his cases were scheduled
on the Buncombe County Superior Court Motion and Plea Addendum calendar for
12 December 2022, before the Honorable Judge Gregory Horne. The State notified
the court about the motion but “due to him having counsel, the State was not
intending to address [it.]” Neither defendant nor Mr. Snead addressed the pro se
motion at that appearance. Instead, the court heard Mr. Snead’s motion and
subpoena requesting defendant’s DSS records and denied the State’s motion to quash
this request. Defendant was also transferred to Buncombe County custody pending
trial on the instant charges.
On 31 May 2023, defendant and Mr. Snead filed a motion asking the court to
consider his pro se claim. Defendant’s next hearing was calendared for 5 June 2023,
where the court heard the State’s response requesting that the court either not hear
the motion or deny it after finding that the State was in compliance. On
29 September 2023, the court issued an order denying defendant’s motion to dismiss
for a violation of G.S. § 15A-711, because defendant failed to timely assert or argue
the motion in court on 12 December 2022, was continually represented by counsel
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and could not file pro se motions, and because the State complied with its statutory
requirements. The court found that Mr. Snead did not adopt defendant’s pro se
motion or offer argument on the merits.
On 1 November 2023, Mr. Snead moved to withdraw due to an impasse with
defendant, which was allowed the following week with defendant’s knowing and free
assent. Ted J. Besen (“Mr. Besen”) was appointed to represent defendant in the
instant case. Mr. Besen moved for a speedy trial on 16 January 2024. The State
scheduled trial for the weeks of 3 June 2024 and 10 June 2024 “in response to” this
motion. This trial date was later amended by about six weeks, due to the courts’
training schedule during the transition implementing the “eCourts” platform.
Following re-assignment of the State’s counsel, Assistant District Attorney
Kyle Sherard (“Mr. Sherard”) reviewed the case file and discovered it was missing
the motion and response heard 5 June 2023 and informed both Mr. Besen and Mr.
Snead. On 22 April 2024, the State and Mr. Snead filed a joint notice re-filing this
motion and response. On 8 July 2024, defendant filed another pro se motion to
dismiss the charges against him based on his right to speedy trial.
Approximately three years and one month elapsed between defendant’s arrest
and the beginning of the trial in Buncombe County Superior Court on 22 July 2024
before the Honorable Craig Croom. The court denied defendant’s 8 July motion to
dismiss after conducting a pre-trial hearing, adopting the findings of fact and
conclusions of law from the 29 September 2023 order. The trial court dismissed one
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of the robbery charges at the outset of the trial, and the State voluntarily dismissed
the misdemeanor assault charge, as well as a charge of having attained the status of
habitual felon. At the close of the State’s evidence, defendant moved to dismiss all
charges against him for insufficiency of the evidence, but the court denied this motion.
C. Defendant’s Testimony and Evidence in his Defense
Defendant gave evidence in his own defense. He testified that he went home
after the fight at AHOPE, but returned to downtown Asheville with a gun after Ms.
Derrick told him to meet her there. He claimed she told him she planned to rob a
person who had asked her for a ride home, and that he followed the group to the park
under the Jeff Bowen Bridge. Defendant contended that he tried to convince Ms.
Derrick not to drive off with the men to commit a robbery and tried to take her keys,
which led to another fight with Mr. Wilson and Mr. Pittman. Defendant testified that
he fired a warning shot, but that the gun went off accidentally during a scuffle with
Mr. Wilson, hitting Mr. Pittman, after which he intentionally shot Mr. Wilson twice
during a prolonged struggle. He also claimed that Ms. Derrick observed the entire
incident.
He denied that he committed either of the two robberies on 14 June 2021, and
claimed that he took both the Kia and Tacoma after finding them unlocked and
unattended with keys inside. He also claimed that he traveled to Monroe in the Kia,
staying there until Ms. Derrick asked him to return to Asheville and pick her up,
after which they spent time in a hotel having sex, and he brought her to the mall to
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pay for her to have her nails done.
Defendant also called Sergeant Melissa Lackey (“Sergeant Lackey”), who spoke
with Mr. Kopp on 14 June. She described Mr. Kopp’s injury as extremely minor,
confirming that officers thought it could have been caused by a BB gun, but that Mr.
Kopp was confident the weapon was a small revolver.
D. Verdicts and Judgments
On 1 August 2024, the jury acquitted defendant of first-degree murder, but
convicted him of second-degree murder, possession of a firearm by a felon, possession
of a stolen motor vehicle, hit and run, assault with a deadly weapon, and robbery with
a dangerous weapon. The trial court entered two judgments and sentenced defendant
to consecutive sentences of between 336 and 416 months and between 89 and 119
months. Defendant gave notice of appeal in open court.
II. Discussion
Defendant contends that the trial court erred by denying his motions to dismiss
for violation of his right to speedy trial, by failing to instruct the jury on the lesser-
included offense of common law robbery because the “evidence showed the weapon
was not a firearm,” and by entering judgment for both robbery with a dangerous
weapon and assault with a deadly weapon arising out of the same incident. We
discuss each argument in turn.
A. Defendant’s Motions Asserting his Right to Speedy Trial
As a preliminary matter, because “[t]here is no right to appear both in propria
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persona and by counsel[,]” a defendant cannot file pro se motions on his own behalf or
represent himself at trial whenever he is already represented by defense counsel.
State v. Williams, 363 N.C. 689, 700 (2009) (citations and quotes omitted). Here,
defendant filed two separate pro se speedy trial motions while represented by counsel.
The first motion was denied in the court’s order following the 5 June 2023 hearing,
where Mr. Snead neither adopted the motion nor argued for its merits. Defendant
never appealed this order and it is therefore unpreserved for review. However, the
trial court conducted a hearing on his second speedy trial motion on 23 July 2024,
wherein defense counsel adopted the motion and argued the merits according to the
Barker factors, and the court adopted the findings and conclusions of the previous
order. Accordingly, we address the merits of defendant’s motion for speedy trial on
appeal.
A criminal defendant’s right to a speedy trial is guaranteed by the
Constitutions of both the United States and North Carolina. U.S. Const. amend. VI;
N.C. Const. art. I, § 18. We review de novo a trial court’s denial of a criminal
defendant’s motion to dismiss on speedy trial grounds. State v. Farook, 381 N.C. 170,
178 (2022) (citing State v. Williams, 362 N.C. 628, 632–33 (2008)). The U.S. Supreme
Court identified four factors for courts to assess before finding a violation of this right:
“[1] Length of delay, [2] the reason for the delay, [3] the defendant’s assertion of [the
right to a speedy trial], and [4] prejudice to the defendant resulting from the delay.”
Barker v. Wingo, 407 U.S. 514, 530 (1972). This jurisprudence has been adopted in
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North Carolina, and we also apply this analysis to analogous claims under the North
Carolina Constitution. State v. Webster, 337 N.C. 674, 678 (1994) (citations omitted).
We first consider the issue of delay. Time is not per se determinative of a
speedy trial violation. Webster, 337 N.C. at 678. However, a post-accusation delay of
one year “marks the point at which courts deem the delay unreasonable enough to
trigger the Barker inquiry.” Doggett v. United States, 505 U.S. 647, 652 n.1 (1992).
The timeline in defendant’s case more than exceeds this threshold, obligating us to
weigh this factor in his favor.
As to the reasons for such delay, defendants generally must show the
prosecution’s neglect or willfulness. Webster, 337 N.C. at 679. However, a delay of
such length creates “a prima facie showing that the delay was caused by the
negligence of the prosecutor sufficient to shift the burden of proof to the State to rebut
and offer explanations for the delay.” State v. Crisp, 297 N.C. App. 400, 403 (2024)
(cleaned up).
On this issue, the State provided a litany of justifications for this extended
delay both at trial and on appeal. First, shortly after his indictment in Buncombe
County, defendant was convicted and incarcerated in Union County for possession of
a stolen vehicle. Then, in July 2022, the assistant district attorney for this
prosecution departed, and Mr. Sherard was assigned as the State’s new counsel in
the case that fall. The same day, Mr. Sherard requested defendant’s transport to
Buncombe County and “timely called the case up to address the motion” at the
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12 December 2022 hearing. But Mr. Snead addressed the motion at neither this
hearing nor the hearing that followed. Instead, Mr. Snead was heard on defendant’s
motion and subpoena requesting access to DSS records. The State described this as
an “effort[ ] to potentially mitigate circumstances if the case were to go to trial or to
a plea.”
A complex discovery process ensued, during which Mr. Snead withdrew from
the case with defendant’s approval due to their impasse. Soon after Mr. Besen’s
appointment, the State received the second pro se motion and filed “an immediate
notice” of the new trial date, and the parties did not receive notice until April about
the “eCourts” transition necessitating the final delay. In addition, both Mr. Besen
and Mr. Sherard were working on a separate two-week double homicide trial
scheduled for March 2024. The State was also requesting voluntary discovery from
defendant as late as January 2024.
A defendant “who has caused or acquiesced in a delay” of his trial “will not be
permitted to” argue that he was denied his constitutional right to speedy trial. State
v. Tindall, 294 N.C. 689, 695–96 (1978). Since the delay can be attributed in part to
defendant’s acquiescence in Mr. Snead’s withdrawal and his defense’s strategic
December 2022 motion to compel discovery, we must conclude that neglect or
willfulness by the State is insufficient to explain defendant’s prolonged wait for trial.
Further, our Supreme Court has stated:
The constitutional guarantee does not outlaw good-faith
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delays which are reasonably necessary for the State to prepare and present its case . . . . Neither a defendant nor the State can be protected from prejudice which is an incident of ordinary or reasonably necessary delay. The proscription is against purposeful or oppressive delays and those which the prosecution could have avoided by reasonable effort.
State v. Johnson, 275 N.C. 264, 273 (1969) (citations omitted).
The record before us largely supports the State’s assertions that the discovery
process was particularly complex. Additionally, some delay due to ordinary staff
turnover is to be expected, as are clogged court dockets and public defenders
preparing for multiple demanding trials at once. Indeed, “[b]oth crowded dockets and
lack of judges or lawyers, and other factors, make some delays inevitable.” State v.
Brown, 282 N.C. 117, 124 (1972) (citation omitted). Accordingly, the State met its
burden to show the delays were reasonably necessary, in good faith, and due in part
to defendant’s acquiescence.
On the third Barker factor, defendant asserted his right to speedy trial in two
pro se motions, but he filed both while represented by counsel. The first was denied,
with the court finding the State met its requirements. Mr. Besen filed a proper
motion asserting this right on 16 January 2024, and the State promptly scheduled
his case for trial in response. Moreover, when defendant filed the second pro se
motion in July 2024, his trial was already scheduled to begin in under two weeks.
Defendant’s motions certainly do not weigh against him on this factor, but given the
surrounding circumstances, these assertions do not weightily support his
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Constitutional argument.
Finally, defendant must show actual, substantial prejudice arising from delay.
State v. Spinks, 277 N.C. App. 554, 566 (2021). On this prong, we consider the speedy
trial right’s three objectives: (1) preventing oppressive pretrial incarceration; (2)
minimizing the accused’s anxiety and concern; and most importantly, (3) limiting the
possibility of an impaired defense. Barker, 407 U.S. at 532, see also Webster, 337 N.C.
at 681.
Defendant’s central contention on this prong is that Mr. Pittman’s death in
November 2021 prejudiced him, because Mr. Pittman’s testimony “would have been
valuable to the defense” because it was “necessary to corroborate [defendant’s]
testimony that Wilson was the aggressor, and that [defendant] acted in self-defense.”
First, defendant offers no facts which would support the speculation that Mr.
Pittman would have testified in his defense, undermining any suggestion that actual
prejudice necessarily resulted therefrom. Second, actual and substantial prejudice
must result from the delay itself, but defendant does not contend that Mr. Pittman’s
death had any causal relationship with this delay. In fact, his death occurred in the
same month as defendant’s indictment on these charges, long before the other events
that more plausibly caused delay. We agree with the court’s finding that “the State
is more prejudiced by his death than the defendant.” Nevertheless, we acknowledge
the sincerity of defendant’s “anxiety and concern” attending his prolonged pre-trial
incarceration.
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In sum, although this was indeed a lengthy delay, the record shows that
defendant was a victim of unfavorable circumstances rather than the State’s neglect
or willfulness, and any prejudice resulting therefrom is insufficiently substantial to
require dismissal. Accordingly, we find no error and hold that the State did not
violate his right to speedy trial.
B. Jury Charge
Defendant argues next that the trial court reversibly erred by instructing on
robbery with a dangerous weapon but omitting instructions on the lesser included
offense of common law robbery. “It is the duty of the trial court to instruct the jury
on all substantial features of a case raised by the evidence.” State v. Shaw, 322 N.C.
797, 803 (1988) (citation omitted). Failing to instruct a jury on a lesser-included
offense “constitutes reversible error that cannot be cured by a verdict finding the
defendant guilty of the greater offense.” State v. Lawrence, 352 N.C. 1, 19 (2000)
(citations omitted).
Parties who objected at trial and stated the grounds to contest any portion of
the jury charge or omissions therefrom properly preserve the issue for appeal, and
this Court reviews de novo the trial court’s decision. N.C. R. App. 10(a)(2) (2024);
State v. Osorio, 196 N.C. App. 458, 466 (2009). When objections are unpreserved, we
review jury instructions for plain error. State v. Gregory, 342 N.C. 580, 584 (1996).
Plain error is a much higher and more “exacting prejudice standard[,]” and it
is not necessarily met even if we conclude the trial court committed an error which
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would have been reversible under de novo review. State v. Reber, 386 N.C. 153, 158–
63 (2024). To show plain error, defendant must first show that a fundamental and
“grave” error occurred at trial, amounting to “a denial of a fundamental right of the
accused[.]” State v. Odom, 307 N.C. 655, 660 (1983) (citation omitted). Defendant
then must show both that the “error is an exceptional case,” which requires a showing
that it “seriously affects the fairness, integrity, or public reputation of judicial
proceedings” and that the error “had a probable impact on the outcome, meaning that
absent the error, the jury probably would have returned a different verdict.” Reber,
386 N.C. at 158 (cleaned up, citations and quotation marks omitted). “In ordinary
English usage, an event will ‘probably’ occur if it is ‘almost certainly’ the expected
outcome; it is treated as synonymous with words such as ‘presumably’ and
‘doubtless.’ ” Id. at 158.
The elements of robbery with a dangerous weapon are: (1) the unlawful taking
of another’s property; (2) with the actual or threatened use of a dangerous weapon;
(3) by which another person’s life is threatened. State v. Bellamy, 159 N.C. App. 143,
147 (2003). “Common law robbery is a lesser-included offense of robbery with a
dangerous weapon.” State v. Clevinger, 249 N.C. App. 383, 392 (2016) (citation
omitted). Common law robbery does not require proof that the defendant used a
firearm or dangerous weapon. State v. Wise, 269 N.C. App. 105, 107 (2019). A
defendant is entitled to instruction on the lesser included offense of common law
robbery where either the State or the defendant offers evidence that the weapon used
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was not a firearm. Id. at 108 (citing State v. Joyner, 312 N.C. 779, 783–84 (1985)).
In the context of a robbery with a dangerous weapon charge, a BB gun is not a firearm
or a dangerous weapon. State v. Allen, 317 N.C. 119, 123–26 (1986) (“No matter what
an instrument appears to be, if in fact it is a cap pistol, or a toy pistol, or some other
instrument incapable of threatening or endangering life, it cannot be a firearm or
other dangerous weapon within the meaning of the armed robbery statute.”).
A trial court “is required to instruct the jury on lesser included offenses
whenever there is some evidence to support” the lesser-included offense. Wise, 269
N.C. App. at 107 (quoting State v. Wright, 304 N.C. 349, 351 (1981)); see also State v.
Millsaps, 356 N.C. 556, 561 (2002) (instruction required so long as the evidence is
sufficient to “permit the jury rationally to find defendant guilty of the lesser offense
and to acquit him of the greater offense.”).
At trial, this charge concerned the robbery of Mr. Kopp’s backpack on 14 June.
Defendant contends that the jury heard conflicting evidence that defendant
brandished either the .22-caliber firearm or the BB gun. Defendant relies heavily on
this Court’s decision in State v. Wise, in which we vacated an armed robbery
conviction and remanded for a new trial, because a detective testified that the
defendant confessed to the robbery but claimed he used a BB gun painted black, and
precedent required this relief pursuant to State v. Alston, 305 N.C. 647 (1982). Wise,
269 N.C. App. at 106–108. In Alston, an accomplice to a robbery testified that he
brandished a BB gun, while victims testified they were certain it was a firearm, and
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because the conflicting information may have “prove[d] the absence of an element” of
the higher offense, instructions on common law robbery were required. Alston, 305
N.C. at 649–51.
However, our previous conclusion does not require the same result here. The
Wise panel applied de novo review because the argument was preserved at trial, while
the instant case requires plain error review. Accordingly, “[i]t is the rare case in
which an improper instruction will justify reversal of a criminal conviction when no
objection has been made in the trial court.” State v. Melvin, 364 N.C. 589, 594 (2010)
(citation omitted). Here, to determine whether an alleged defect in the jury
instructions rises to the exceptional level of plain error, we must examine the entire
record and conclude that the defect identified doubtless impacted the jury’s guilty
verdict. Odom, 307 N.C. App. at 661. To determine whether the record contains
sufficient evidence to require jury instructions about the lesser included offense, we
must view this evidence in the light most favorable to the defendant. State v.
Brewington, 179 N.C. App. 772, 779 (2006).
We begin with the State’s evidence about the robbery of Mr. Kopp’s backpack.
Detective DeStefano testified that Mr. Kopp reported to him that he was robbed at
gunpoint by a black male who shot him in the forearm with what he believed was a
.22-caliber revolver. The jury watched his body cam footage, including this interview
with Mr. Kopp, but it is not included in the record. On cross-examination, Detective
DeStefano confirms that Mr. Kopp said he was “shot with a .22” but he says the
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wound did not “look consistent with . . . a through-and-through gunshot where it
actually hits and goes all the way through the internal layers of your body.” On
redirect, however, Detective DeStefano clarified that “bullets can graze skin” and
“don’t always have to enter the body[,]” and that a smaller-caliber weapon like a .22-
caliber firearm “would cause less damage than a high-caliber weapon.”
Mr. Kopp testified: “It looked like a revolver, you know. I’m not an expert, but
maybe, like, a .38 or something . . . . Something pocketable for sure.” He testified
that the gunshot’s echo on the building was “really loud” and that the bullet grazed
him. On cross-examination, he testified that he knew it was a revolver from its shape
but clarified that although he goes shooting with family on occasion, he has minimal
knowledge of firearms. He describes the gun as smaller than the shooter’s grip, with
a cylinder rather than a magazine. He says he was certain it was “a real gun because
I’ve shot guns, and it definitely wasn’t, like, quiet. It wasn’t like a .22, but . . . .”
However, he says, “I don’t think it was a BB gun because BB guns aren’t that loud,
and I heard the echo behind me. It was crazy loud, like a 9-millimeter or something,
like a regular bullet.”
Defendant testified in his defense and denied he was on Haywood Road at the
time of the robbery. Defendant also called Sergeant Lackey, who also spoke with Mr.
Kopp on the scene, and whose body cam footage was introduced at trial but not
included in the record. She did not remember what Mr. Kopp’s injury looked like but
confirmed that the footage records her describing it as “like a little zit.” She confirmed
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that she heard Mr. Kopp say it could have been a BB gun, but that he is pretty sure
it was a revolver. She says, “I did not see that he had been shot with a .22.” But on
cross-examination, Sergeant Lackey confirmed that, in her 25 years of experience,
she has also seen gunshot wounds that are “just a graze.” She also said that, although
“[n]o one else saw that gun but Mr. Kopp[,]” “everyone on scene is telling [Mr. Kopp]
it’s a BB[,]” but “he’s pretty confident it was a revolver, short barrel gun, a .22.”
Viewed in isolation and in the light most favorable to defendant, it seems the
above testimony amounts to conflicting evidence as to the type of gun used. However,
this Court must come to its conclusion based on the entire record, which offers
extensive material contextual evidence about defendant’s activity surrounding these
events.
Detective Jacob Kielson testified that just after midnight, he was dispatched
to the area of Clingman Avenue and Hilliard Avenue, where Mr. Sobel reported the
robbery of his grey Kia Optima at gunpoint. Detective DeStefano confirmed that the
Kia’s theft occurred a short drive from Haywood Road, about a mile away. He also
confirms the call about the Hilliard Avenue incident that came in while he was
driving to Haywood Road, and officers immediately postulated that the incidents
were related. In addition, the jury heard expert testimony placing defendant’s phone
at the time and place of both robberies. Moreover, defendant pled guilty to possessing
the Kia, and one element of this offense was his knowledge that the vehicle was
stolen.
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Asheville Police Department forensic technician Mark Scholtz testified about
processing the evidence collected from the crashed Toyota Tacoma. This includes the
recovered firearm, an Rg .22-caliber with a fired round and five live rounds in its
cylinder. Asheville Police Department forensic unit crime scene investigator Leigh
Thomas testified that she attended Mr. Wilson’s autopsy and concluded that he was
shot with a .22-caliber firearm. In June 2021, she requested that the state crime lab
test the .22-caliber projectile collected from Mr. Wilson’s body to see if it had been
fired from the only firearm recovered in this case, but as of July 2024, it had not yet
been processed.
Defendant’s testimony included the admission that, when he left home to meet
Ms. Derrick after the fight outside the AHOPE shelter, he brought a gun “[f]or
protection because [he] knew that Preston had a gun,” and that this was the gun
which shot both Mr. Wilson and Mr. Pittman. He also admitted to crashing the
Tacoma in which police located the .22-caliber firearm. Further, although extensive
searches were conducted, including a search of a nearby body of water, no firearm
was uncovered at the scene of the homicide, and no other guns of any kind were ever
recovered in relation to defendant’s case.
Looking at the whole record, it becomes clear that any testimony suggesting
the weapon used to rob Mr. Kopp might have been a BB gun was woven into a much
more detailed and compelling tapestry of contrary evidence. As a whole, this evidence
tends to show: that defendant brought a .22-caliber firearm to the Jeff Bowen Bridge
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and took that weapon with him when fleeing; that defendant next used the firearm
to steal Mr. Sobel’s Kia, leaving his victim naked in the street and flagging down cars
for help; that defendant drove the stolen Kia to Haywood Road, where he fired at Mr.
Kopp, grazing him and stealing his backpack before driving away in the Kia; and that
he held onto this firearm until he ran from the stolen Tacoma he wrecked during his
high-speed chase. Police never collected physical evidence consistent with the firing
of a BB gun. Mr. Kopp, the only eyewitness to his robbery, testified that he was
certain defendant fired with a small revolver, rather than a BB gun, although his
grazing wound was so small that either a .22-caliber firearm or a BB gun could have
caused it.
Absent this context, the testimony about the hypothetical BB gun may
arguably have sufficed to “permit the jury rationally to find defendant guilty of the
lesser offense and to acquit him of the greater offense.” Millsaps, 356 N.C. at 561.
But on plain error review, we must ask whether the record as a whole contains
conflicting evidence, such that the court’s omission of instructions on the lesser
included offense constitutes an exceptional, fundamental, and grave error affecting
the fairness, integrity, or public reputation of judicial proceedings, and that including
the instruction doubtless would have required the jury to come to a different verdict.
Overall, this record only “conflicts” on this issue insofar as a meteorologist
forecasting a 99% chance of rain makes a “conflicting” prediction on the odds of
precipitation. The BB gun testimony constitutes nowhere near enough evidence for
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us to conclude that a common law robbery instruction would have made a different
outcome likely, let alone probable, almost certain, presumable, or doubtless.
Therefore, we conclude that the trial court’s omission of the common law robbery
instruction does not reach the extremely high plain error standard.
C. Double Jeopardy
Defendant next contends that, because he was convicted in the theft of Mr.
Kopp’s backpack for both robbery with a dangerous weapon and assault with a deadly
weapon, we must arrest judgment on the assault charge for violation of his rights
under the double jeopardy clause. Defendant concedes that he did not raise the issue
of double jeopardy at trial, but requests that we invoke Appellate Procedure Rule 2
to review his sentencing.
“Constitutional questions not raised and passed on by the trial court will not
ordinarily be considered on appeal.” State v. Tirado, 358 N.C. 551, 571 (2004).
However, this court has discretion to review unpreserved double jeopardy arguments.
State v. Mulder, 233 N.C. App. 82, 86 (2014). Under Rule 2, we may “suspend or vary
the requirements or provisions” of any of the other Appellate Procedure Rules “[t]o
prevent manifest injustice to a party[.]” N.C. R. App. P. 2 (2024).
The question for this Court is whether reviewing his double jeopardy argument
would prevent manifest injustice to defendant, which would permit us to invoke Rule
2. The trial court consolidated these two charges for sentencing. “When the trial
court consolidates multiple convictions into a single judgment but one of the
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convictions was entered in error, the proper remedy is to remand for resentencing[.]”
State v. Hardy, 242 N.C. App. 146, 160 (2015) (citation omitted). The State argues
that vacating the assault conviction would have had no effect: “Even if the sentencing
for the Defendant’s assault with a deadly weapon conviction was arrested, the length
of his prison sentences would not change.” Under this reasoning, any injustice
suffered by defendant is abstract rather than manifest.
However, although the trial court expressly consolidated the offenses, the
record contains nothing to ensure us that, in calculating defendant’s total sentence,
it gave no weight to the consolidated lesser included charge. When the trial court
consolidates multiple convictions into a single judgment, but one of the convictions
was entered in error, the proper remedy is to remand for resentencing when this
Court is “unable to determine what weight, if any, the trial court gave each of the
separate convictions . . . in calculating the sentences imposed upon the defendant.”
State v. Moore, 327 N.C. 378, 383 (1990). Accordingly, due to the possibility of
manifest injustice below, we invoke Rule 2 in our discretion to consider defendant’s
double jeopardy argument.
Both the Fifth Amendment to the United States Constitution and Article I,
Section 19 of the North Carolina Constitution prohibit multiple punishments for the
same offense absent clear legislative intent to the contrary. U.S. Const. amend. V;
N.C. Const. art. I, § 19; see also State v. Etheridge, 319 N.C. 34, 50 (1987). We review
double jeopardy issues de novo. State v. Williams, 201 N.C. App. 161, 173 (2009).
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The double jeopardy clause prohibits multiple convictions for the same offense. State
v. Ezell, 159 N.C. App. 103, 106 (2003). Assault with a deadly weapon is a lesser
included offense of robbery with a dangerous weapon. State v. Hinton, 361 N.C. 207,
210 (2007). When a defendant is convicted of these two offenses arising out of the
same incident, a trial court should arrest judgment on the lesser-included offense.
State v. Richardson, 279 N.C. 621, 628 (1971). Accordingly, defendant is correct that
the conviction on this lesser included offense violated double jeopardy.
When two offenses are consolidated for judgment, “it is probable that a
defendant’s conviction for two or more offenses influences adversely to him the trial
court’s judgment on the length of the sentences imposed[.]” State v. Wortham, 318
N.C. 669, 674 (1987). Accordingly, because conviction on these two offenses violated
defendant’s right against double jeopardy, the State’s argument that the trial court’s
sentence did not prejudice defendant is unavailing. We are therefore required by
precedent to vacate defendant’s conviction for assault with a deadly weapon and
remand for resentencing.
III. Conclusion
For the foregoing reasons, we hold that the trial court committed no error in
concluding that defendant’s right to speedy trial was not violated and no plain error
in omitting a jury instruction about common law robbery. However, we vacate
defendant’s conviction for assault with a deadly weapon and remand for resentencing
on defendant’s robbery with a dangerous weapon conviction.
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NO ERROR IN PART, NO PLAIN ERROR IN PART, VACATED IN PART,
AND REMANDED.
Judges GORE and MURRY concur.
Report per Rule 30(e).
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