1. Robbery_dangerous weapon_BB gun_no evidence of capability to
inflict death or great bodily harm
The trial court erred by not dismissing an armed robbery
charge where it was clear that the weapon was a BB gun, even
giving the State all reasonable inferences which could be drawn
from the facts, and there was no evidence in the record of the BB
gun's capability to inflict death or great bodily injury. The
presumption that a brandished instrument which appears to be a
dangerous weapon is what it appears to be applies in the absence
of any evidence to the contrary. Finally, there was plain error
in that the trial court instructed on robbery with a dangerous
weapon and on common law robbery using the Pattern Jury
Instruction, but did not define “dangerous weapon.”
2. Evidence_failure to rule on objection_evidence
admissible_error not prejudicial
There was no prejudicial error in an armed robbery
prosecution where defendant contended that the court erred by
failing to rule on his objection to a question to a police
detective as to whether he had defendant on videotape for other
robberies where the evidence was properly admitted because
defendant had opened the door.
Attorney General Roy Cooper, by Assistant Attorney General
Robert R. Gelblum for the State.
J. Clark Fischer for defendant appellant.
McCULLOUGH, Judge.
Defendant Harold Ray Fleming was tried at the 12 July 2000
Criminal Session of Forsyth County Superior Court after being
charged with two counts of robbery with a dangerous weapon.
Evidence for the State showed that on 11 March 2000 a man, lateridentified as defendant, went to Advance America, a cash/payday
advance service located in Winston-Salem, North Carolina. The only
person inside the business was employee Shannon Qayd. Once inside,
defendant inquired about opening an account. Ms. Qayd noticed that
defendant was wearing a black toboggan and had some discoloration
of his lower lip. When Ms. Qayd brought defendant the requested
information, he displayed a gun and a white plastic bag in one hand
and told Ms. Qayd to give him the money. Ms. Qayd complied and
gave defendant the money from the cash register. Defendant then
told Ms. Qayd to give him the money out of the safe. Defendant
followed Ms. Qayd to the back of the store and told her, "I'm
coming with you." He was still holding the gun and the white
plastic bag.
Ms. Qayd opened the safe and gave defendant the money inside.
Defendant then asked Ms. Qayd to give him the store's videotape.
She replied that the system was fake and that there was no tape.
Defendant told Ms. Qayd to go to the back of the store, and he left
with $1,321.00 in cash from Advance America.
On 14 March 2000, defendant entered All Care Insurance Agency
(All Care) located a few stores away from Advance America in the
same shopping center in Winston-Salem. Once inside, defendant
requested automobile insurance quotes. Defendant was again wearing
a toboggan and witnesses noticed a white discoloration on his lower
lip. Three employees were present at All Care at the time defendant
entered the business. Ms. Robin Vantorre, one of the employees,
asked defendant to get the vehicle identification number from his
car so she could give him an accurate insurance quote. Defendantresponded by placing a white plastic bag on the counter, saying,
"Why don't you fill this up with your money." When Ms. Vantorre
did not immediately comply, defendant opened his coat long enough
for her to see the butt of a gun sticking out of the waistband of
his pants. He then stated, "I'm serious, fill up the bag with the
money." Ms. Vantorre then filled the bag with money from the cash
register, while All Care owner William Lambert gave defendant his
money.
Defendant asked Mr. Lambert where the safe was, and was told,
"That's all there is." Defendant walked to the back room with Ms.
Vantorre, her coworker, and Mr. Lambert, and told them to remain in
that room until he left. Ms. Vantorre and Mr. Lambert kept the
door to the back room cracked open and heard defendant exit the
business less than five minutes later. They watched defendant
wander around the parking lot for a few minutes, then saw him get
into a red Mitsubishi Eclipse and leave the area.
Ms. Vantorre called 911 and described both defendant and his
vehicle to the dispatcher. A few minutes later, Officer R.B. Rose
of the Winston-Salem Police Department stopped a red Mitsubishi
Eclipse driven by defendant. Officer Rose noted that defendant had
a white discoloration on his lower lip, which was also described by
employees at both All Care and Advance America. Upon searching
defendant, Officer Rose and the investigating officer assisting him
recovered a BB gun from defendant's waistband. After looking inside
the car, the officers found a white plastic bag between the
driver's seat and the console. The bag contained $286.00 in cash,
the same amount Mr. Lambert testified was taken from All Careduring the robbery.
The officers also recovered a black toboggan from beneath the
driver's seat and a pair of zippered gloves from a side pocket in
the driver's door of the Mitsubishi Eclipse. When shown the items
at trial, Ms. Qayd testified that the gloves and the toboggan
appeared to be the same ones worn by the man who robbed Advance
America. Ms. Vantorre testified that the jacket defendant was
wearing when he was stopped by the officers appeared to be the same
one worn by the man who robbed All Care.
Defendant was arrested and read his Miranda rights by
Detective R.W. Beasley of the Winston-Salem Police Department.
Thereafter, he signed a waiver of those rights and wrote out a
confession regarding the robbery of All Care: "Went on Peters
Creek, robbed the insurance company." On 1 May 2000, defendant was
indicted on two counts of robbery with a dangerous weapon and was
tried before a jury after the charges were joined for trial. The
jury found defendant guilty on both counts. During sentencing,
defendant was found to have a prior record level of IV and was
sentenced to consecutive terms of 146-185 months' imprisonment on
each conviction. Defendant appealed only his conviction in the 14
March 2000 All Care robbery.
On appeal, defendant argues that the trial court committed
reversible error by (I) denying his motion to dismiss the All Care
robbery with a dangerous weapon charge because the evidence showed
that the weapon, a BB gun, was not a deadly weapon; and (II)
failing to rule on his objection to the State's redirect
examination of a police detective regarding whether the detectivehad defendant on videotape in a different robbery. For the reasons
set forth, we vacate defendant's conviction of robbery with a
dangerous weapon and remand the case for resentencing on the lesser
included offense of common law robbery.
[Prosecutor]: Showing you what's been
marked as State's Exhibit 1 for
identification, did you see this gun on that
day, on the 14th?
[Ms. Vantorre]: I couldn't tell you if it
was that gun. I didn't see the whole gun that
day.
[Prosecutor]: The gun that you saw on
the Defendant that he showed to you, it was
stuffed in his pants?
[Ms. Vantorre]: Uh-huh.
[Prosecutor]: Okay. Do you recognize
any of this --
. . . .
[Ms. Vantorre]: I don't remember. I was
just -- it just scared me to death. I could
tell it was a gun.
[Prosecutor]: But you cannot identifyState's
Exhibit 1 as the gun that was used.
[Ms. Vantorre]: No.
On cross-examination, Ms. Vantorre admitted that only a few minutes
elapsed from the time defendant showed her the weapon in his
waistband to the time he went to his car. Defendant's attorney
also asked questions which revealed that defendant was apprehended
by police officers just minutes after the 911 call was made by Ms.
Vantorre. Officer Rose retrieved a BB gun from defendant's
waistband during a pat-down search, a total of five minutes after
Ms. Vantorre saw it tucked in the waistband of the man who robbed
All Care. Even giving the State all reasonable inferences which
may be drawn from the above-recited facts, it is clear the weapon
in question was, in fact, a BB gun. Defendant maintains that these
facts constitute sufficient evidence to conclude that a dangerous
weapon was not used, such that he could not be convicted of robbery
with a dangerous weapon under N.C. Gen. Stat. § 14-87.
"Our Supreme Court has established rules with which to resolve
sufficiency of evidence questions in armed robbery cases where the
instrument used appears to be, but may not in fact be a dangerous
weapon capable of endangering or threatening life." State v.
Summey, 109 N.C. App. 518, 528, 428 S.E.2d 245, 251 (1993). The
rules are as follows:
(1) When a robbery is committed with what
appeared to the victim to be a firearm or
other dangerous weapon capable of endangering
or threatening the life of the victim and
there is no evidence to the contrary, there is
a mandatory presumption that the weapon was as
it appeared to the victim to be. (2) If there
is some evidence that the implement used was
not a firearm or other dangerous weapon whichcould have threatened or endangered the life
of the victim, the mandatory presumption
disappears leaving only a permissive
inference, which permits but does not require
the jury to infer that the instrument used was
in fact a firearm or other dangerous weapon
whereby the victim's life was endangered or
threatened. (3) If all the evidence shows the
instrument could not have been a firearm or
other dangerous weapon capable of threatening
or endangering the life of the victim, the
armed robbery charge should not be submitted
to the jury.
State v. Allen, 317 N.C. 119, 124-25, 343 S.E.2d 893, 897 (1986).
Defendant argues that his case falls under subsection (3)
above, while the State maintains that defendant's case falls under
subsection (2), wherein the jury is permitted to infer that the
instrument used was a dangerous weapon. The State argues that it
is not completely clear whether the BB gun found by the officers
was the same instrument used by defendant in the robbery of All
Care. We reject this argument, as set forth previously. We agree
that defendant's case could fall under Allen subsection (2), if the
State had introduced evidence of the BB gun's capability to inflict
death or great bodily injury. Had the State presented such
evidence, the jury would have been allowed to make a permissible
inference "which permits but does not require the jury to infer
that the instrument used was in fact a firearm or other dangerous
weapon whereby the victim's life was endangered or threatened."
See Allen, 317 N.C. at 124-25, 343 S.E.2d at 897.
With regard to the charges of robbery with a dangerous weapon,
the trial court instructed the jury as follows:
The second case, which has been referred
to as the All Care Insurance Agency case, inthat case the Defendant has been accused of
robbery with a firearm, which is taking and
carrying away the personal property of another
from his presence -- from his person or in his
presence without his consent by endangering or
threatening a person's life with a firearm,
the taker knowing that he was not entitled to
take the property and intending to deprive
another of its use permanently.
Now, I charge that for you to find the
Defendant guilty of robbery with a firearm the
State must prove seven things beyond a
reasonable doubt. First, that the Defendant
took property from the person of another or in
his presence.
Second, that the Defendant carried the --
away the property.
Third, that the person did not
voluntarily consent to the taking and carrying
away of the property.
Fourth, that the Defendant knew he was
not entitled to take the property.
Fifth, that at the time of taking, the
Defendant intended to deprive the person of
its use permanently.
Sixth, that the Defendant had a firearm
in his possession at the time he obtained the
property or that it reasonably appeared to the
victim that a firearm was being used, in which
case you may infer that the said instrument
was what the Defendant's conduct represented
it to be.
And seventh, that the Defendant obtained
the property by endangering or threatening the
life of that person, with the firearm.
So I charge that if you find from the
evidence beyond a reasonable doubt that on or
about the alleged date the Defendant had in
his possession a firearm and took and carried
away property from the person or presence of a
person without his [sic] voluntary consent by
endangering or threatening her life with the
use or threatened use of a firearm, the
Defendant knowing that he was not entitled to
take the property, and intending to deprive
that person of its use permanently, it wouldbe your duty to return a verdict of robbery
with a firearm.
However, if you do not so find or have a
reasonable doubt as to one or more of these
things, you will not return a verdict of
guilty of robbery with a firearm.
In State v. Thompson, 297 N.C. 285, 289, 254 S.E.2d 526, 528
(1979), our Supreme Court stated:
When a person perpetrates a robbery by
brandishing an instrument which appears to be
a firearm, or other dangerous weapon, in the
absence of any evidence to the contrary, the
law will presume the instrument to be what his
conduct represents it to be--a firearm or
other dangerous weapon.
The Thompson scenario is not applicable in the current case because
we have concluded that the only reasonable inference to be drawn
from the evidence presented at trial was that a BB gun was utilized
by defendant. Thus, there was affirmative testimony "tending to
prove the absence of an element of the offense charged and required
the submission of the case to the jury on the lesser included
offense of common law robbery as well as the greater offense of
robbery with firearms or other dangerous weapons." State v.
Alston, 305 N.C. 647, 651, 290 S.E.2d 614, 616 (1982). In the
present case, the trial court instructed the jury on both robbery
with a dangerous weapon and common law robbery.
Alston is also helpful to our determination of whether the BB
gun was a "dangerous weapon." "In determining whether evidence of
the use of a particular instrument constitutes evidence of use of
'any firearms or other dangerous weapon, implement or means' within
the prohibition of G.S. 14-87, the determinative question iswhether the evidence was sufficient to support a jury finding that
a person's life was in fact endangered or threatened." Alston, 305
N.C. at 650, 290 S.E.2d at 614 (quoting N.C. Gen. Stat. § 14-87).
Based on the facts presented at trial, the Alston Court concluded
that a BB gun could not be a firearm or other dangerous weapon
within the meaning of N.C. Gen. Stat. § 14-87 because it was
incapable of endangering or threatening the life of a person. Id.
at 651, 290 S.E.2d at 616; see also Allen, 317 N.C. at 123, 343
S.E.2d at 896. We decline to hold, as a matter of law, that a BB
gun can never be a dangerous weapon. See State v. Westall, 116
N.C. App. 534, 540, 449 S.E.2d 24, 28, disc. review denied, 338
N.C. 671, 453 S.E.2d 185 (1994) (declining to hold, as a matter of
law, that a pellet gun is or is not a dangerous weapon). For a
jury to find that a BB gun is a dangerous weapon, there must be
evidence in the record of the BB gun's capability to inflict death
or great bodily injury. Such evidence is lacking in the case at
bar.
In furtherance of this point, our Supreme Court has also
stated:
[I]n a case where the instrument used to
commit a robbery is described as appearing to
be a firearm or other dangerous weapon capable
of threatening or endangering the life of the
victim and there is no evidence to the
contrary, it would be proper to instruct the
jury to conclude that the instrument was what
it appeared to be. The jury should not be so
instructed if there is evidence that the
instrument was not, in fact, such a weapon,
but was a toy pistol or some other instrument
incapable of threatening or endangering the
victim's life even if the victim thoughtotherwise.
Allen, 317 N.C. at 125, 343 S.E.2d at 897.
In the present case, after the trial court instructed the jury
on robbery with a dangerous weapon, it then gave the standard
instruction on common law robbery. This was precisely the action
taken by the trial court in Summey, 109 N.C. App. 518, 428 S.E.2d
245. In Summey, defendant was convicted of robbery with a
dangerous weapon. Id. at 528, 428 S.E.2d at 250. Defendant moved
to dismiss the case because there was evidence that the victims
were robbed with a pellet pistol and a BB rifle with a broken
stock, and he maintained that no dangerous weapon was used. Id.
In concluding that defendant's motion to dismiss was properly
denied, the Summey Court noted the following:
Thus, there is evidence that it appeared
to the victims that the robbery was committed
with dangerous weapons as well as evidence
tending to show that the weapons in question
were not dangerous weapons within the
contemplation of G.S. 14-87. State v. Alston,
305 N.C. 647, 290 S.E.2d 614 (1982).
Therefore, the trial court was required to
submit the case to the jury on the lesser
included offense of common law robbery, as
well as armed robbery, and it was for the jury
to determine the nature of the weapon used.
Id.; State v. Allen, 317 N.C. 119, 343 S.E.2d
893 (1986). In this case, the jury was given
instructions as to both armed and common law
robbery and a definition of "dangerous weapon"
as "one which is likely to cause death or
serious bodily injury." We find no error in
the trial court's denial of defendant's motion
to dismiss the charges of armed robbery.
Id. at 529, 428 S.E.2d at 251 (emphasis added). While we note that
the trial court's instruction was identical in all pertinentrespects to N.C.P.I., Crim. 217.20, we also note that the trial
court failed to define a dangerous weapon. We conclude that, in
the context of this case, such an omission constitutes plain error.
We thus hold that, when a weapon such as a BB gun is
determined to be the weapon used in a particular case, the record
must contain evidence to support the jury's finding that the
instrument was a dangerous weapon. Moreover, the jury must be
properly instructed with a definition of a dangerous weapon. The
absence of both these requirements compels us to vacate defendant's
conviction of robbery with a dangerous weapon and remand the case
to the trial court for resentencing on the lesser included offense
of common law robbery.
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