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Criminal Practice — Armed Robbery & Attempted Armed Robbery – Jury Instructions – Not Guilty Option

State v. Calderon (Lawyers Weekly No. 15-07-0671, 26 pp.) (Linda McGee, C.J.) Appealed from Cleveland County Superior Court (Jeffrey Hunt, J.) N.C. App.

Holding: Even though the trial court erred when it omitted the “not guilty” option from its instructions as to the second of three charges, since the verdict sheet included the “not guilty” option, the error was not plain.

We find no prejudicial error in both defendants’ convictions of four counts of robbery with a firearm and two counts of attempted robbery with a firearm. We find no error in defendant Calderon’s conviction of possession of a firearm by a felon.

Where (1) defendants and their accomplice (turned state’s witness) barged in on a poker game in an apartment; (2) all three robbers brandished weapons while taking money from the table and occupants’ pockets; (3) defendants continued to point their guns at people while their accomplice unsuccessfully searched the pockets of Jackie Allen, who had passed out on a couch; and (4) the three robbers told the victims to remain in the apartment for 10 minutes or else they would kill them, defendants and their accomplice did an overt act calculated and designed to rob Allen when defendants brandished their weapons as their accomplice moved toward Allen with the intent to take money from his pockets. The trial court did not err when it denied defendants’ motions to dismiss the charges of attempted armed robbery of Allen.


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