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[T] State v. Hair12/16/2003
. Baxley were beaten with a hammer, causing skull fractures and other injuries which caused or contributed to their deaths, and that the hammer was found, along with documents and other items belonging to Mr. Braswell which defendant admitted taking, in adrainage ditch near the victims' residence. Defendant stated to Officer Russ that he, Harden, and Musselwhite went to the victims' residence "to steal" on the night of the murders, and the next day defendant sold a ring which had belonged to Mr. Braswell. Viewing this evidence in the light most favorable to the State, we conclude that a rational trier of fact could conclude that defendant robbed or participated in the robbery of Mr. Braswell, and that the robbery occurred as part of a single transaction with his murder.
We hold that the State presented substantial evidence (1) of each essential element of both first-degree rape and robbery with a dangerous weapon, and (2) that defendant was the perpetrator of these offenses. Because conviction of either of these offenses may properly serve as the predicate felony supporting a felony murder conviction, defendant's first assignment of error is overruled.
By his second assignment of error, defendant contends the trial court erred by denying his request for a jury instruction on mere presence. Defendant did not request a mere presence instruction in the charge conference, nor did defendant object to the trial court's entire charge, which included the pattern instruction on acting in concert, prior to the jury beginning its deliberations. Defendant's request for a mere presence instruction came only after the jury submitted two questions to the trial court which appeared to seek clarification on the acting in concert instruction. The trial court denied defendant's request and re-instructed the jury on acting in concert. Defendant renewed hisrequest for a mere presence instruction following a third jury question, and it was again denied.
The Rules of Appellate Procedure prohibit assignment of error to "any portion of the jury charge or omission therefrom unless [appellant] objects thereto before the jury retires to consider its verdict," N.C.R. App. P. 10(b)(2) (2004), except in criminal cases "where the judicial action questioned is specifically and distinctly contended to amount to plain error." N.C.R. App. P. 10(c)(4) (2004); see also State v. White, 349 N.C. 535, 570, 508 S.E.2d 253, 275 (1998), cert. denied, 527 U.S. 1026, 144 L.Ed. 2d 779 (1999) (finding no error where defense counsel did not object when given the opportunity at the charge conference or after the charge was given). Neither defendant's argument on this issue nor the assignment of error on which it is based "specifically and distinctly" contend that the trial court's failure to give a mere presence instruction was plain error, and we therefore decline to review it.
We note, however, that the trial court's denial of defendant's request for a mere presence instruction was not plain error. A plain error is one so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it would have reached absent the error. State v. Carroll, 356 N.C. 526, 539, 573 S.E.2d 899, 908 (2002), cert. denied, __ U.S. __, 156 L.Ed. 2d 640 (2003). Even assuming arguendo that the trial court's failure to give the mere presence instruction was error, which we do not hold, " he adoption of the'plain error' rule does not mean that every failure to give a proper instruction mandates reversal regardless of the defendant's failure to object at trial." State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). Moreover, "even when the 'plain error' rule is applied, ' t is
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