Smith's Criminal Case Compendium
Table of Contents
State v. McLymore, ___ N.C. App. ___, 2021-NCCOA-425 (Aug. 17, 2021)
In this armed robbery case, the trial court did not err by failing to designate in its jury instruction the two individuals named in the indictment as the alleged victims. The defendant was indicted for armed robbery of two boys, Elijah and Shalik, who were specifically identified as victims in the indictment. The jury heard evidence that on the evening of the crime the defendant obtained the shotgun he used when robbing Elijah and Shalik by taking it without authorization from a vehicle occupied by two men, Desean and Tevin, and that he had threatened them with the shotgun after taking it. The jury also heard evidence that prior to taking the shotgun the defendant had attempted to rob a woman, Yvette, using a handgun.
The trial court instructed the jury using NCPJI CRIM 217.20, applicable to armed robberies involving a firearm, but, in a departure from the indictment, did not designate the victims Elijah and Shalik. Because the evidence before the jury did not support a conviction for robbery with a firearm of Desean, Tevin, or Yvette, the court rejected the defendant’s argument that the trial court’s instruction left the jury free to convict him based on the uncharged offenses involving those people. The court noted, however, that the better practice is to designate the victim in jury instructions for robbery with a firearm.