STATE OF NORTH CAROLINA
v
.
Forsyth County
No. 99 CRS 14468
WILLIAM THOMAS FRAZIER
Attorney General Roy Cooper, by Special Deputy Attorney
General Gayl M. Manthei, for the State.
Randolph and Fischer, by Rebekah L. Randolph, for defendant
appellant.
TIMMONS-GOODSON, Judge.
On 21 March 2001, a jury found William Thomas Frazier
(“defendant”) guilty of robbery with a dangerous weapon. At trial,
the State presented evidence tending to show the following: In the
late afternoon of 28 March 1999, defendant and his friend, Darrick
McLean (“McLean”) purchased several items from a convenience store
located in Kernersville, North Carolina. Later that evening, the
two men discussed robbing the store. At approximately 11:20 p.m.,
defendant returned to the convenience store. Defendant selected
some candy and approached the counter, where the store clerk was
occupied adjusting the tape in the cash register. When the clerk
looked up from the register, he saw that defendant was holding a
gun. Holding the weapon to the clerk's midsection, defendantdemanded that he open the safe, but the clerk informed him that he
did not have a key. Defendant threatened to kill him, but upon
discovering a small bag containing approximately $153.00 in cash,
defendant took the bag and left the store. He then drove away with
McLean and McLean's girlfriend, who were waiting for defendant
outside in their automobile.
Defendant testified on his own behalf. Defendant stated that
he and McLean discussed robbing the store, but that he “didn't
really want it to happen[.]” McLean insisted, however, that
defendant commit the robbery and handed him a gun. Defendant
asserted that he unloaded the weapon and tucked it into the front
of his pants before entering the store. According to defendant,
when he approached the store counter with his candy, the clerk
requested his assistance in loading the register tape, whereupon
defendant walked behind the counter and attempted to load the tape.
Defendant explained that, “at the time I was helping [the clerk]
put the paper in, my gun had moved; and I didn't make a sudden
gesture, but I tried to slide my hands to where I can adjust it to
where it wouldn't, you know, it wouldn't fall or anything.” When
defendant put his hand on the register, the clerk “grabbed” him
“and at this point in time my gun is falling out of my pants leg,
so I grabbed it and I pulled it out and held it towards the
ground.” The clerk then retrieved a small envelope containing cash
from under the counter and told defendant to “take this don't hurt
me.” Defendant took the envelope and left the store.
Upon receiving the jury's guilty verdict, the trial courtsentenced defendant to a minimum term of 99 months and a maximum
term of 128 months of imprisonment. Defendant appeals from his
conviction and resulting sentence.
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The sole issue on appeal is whether the trial court erred in
refusing to instruct the jury on the lesser included offense of
common law robbery. Because there was evidence from which a
reasonable jury could conclude that defendant committed the lesser
included offense, the trial court erred in failing to instruct the
jury on common law robbery. We therefore remand defendant's case
for a new trial.
Defendant argues that the trial court erred in failing to
instruct the jury on the lesser included offense of common law
robbery. “If a request is made for a jury instruction which is
correct in itself and supported by the evidence, the trial court
must give the instruction at least in substance.” State v.
Harvell, 334 N.C. 356, 364, 432 S.E.2d 125, 129 (1993). Where
there is positive and unequivocal evidence as to each and every
element of armed robbery, and there is no evidence supporting the
defendant's guilt of a lesser included offense, the trial court may
properly decline to instruct the jury on the lesser included
offense of common law robbery. See State v. Cummings, 346 N.C.
291, 325, 488 S.E.2d 550, 570 (1997), cert. denied, 522 U.S. 1092,
139 L. Ed. 2d 873 (1998). “The sole factor determining the judge's
obligation to give such an instruction is the presence, or absence,
of any evidence in the record which might convince a rational trierof fact to convict the defendant of a less grievous offense.”
State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981).
The offense of robbery with a firearm or other dangerous
weapon is set forth in section 14-87 of the North Carolina General
Statutes, which reads:
(a) Any person or persons who, having in
possession or with the use or threatened use
of any firearms or other dangerous weapon,
implement or means, whereby the life of a
person is endangered or threatened, unlawfully
takes or attempts to take personal property
from another or from any place of business,
residence or banking institution or any other
place where there is a person or persons in
attendance, at any time, either day or night,
or who aids or abets any such person or
persons in the commission of such crime, shall
be guilty of a Class D felony.
N.C. Gen. Stat. § 14-87(a) (2001). The primary distinction between
armed robbery and common law robbery is that “the former is
accomplished by the use or threatened use of a dangerous weapon
whereby the life of a person is endangered or threatened.” State
v. Peacock, 313 N.C. 554, 562, 330 S.E.2d 190, 195 (1985). The use
or threatened use of a dangerous weapon, however, is not an
essential element of common law robbery. See Cummings, 346 N.C. at
325-26, 488 S.E.2d at 570.
An object incapable of endangering or threatening life cannot
be considered a dangerous weapon. See State v. Allen, 317 N.C.
119, 122, 343 S.E.2d 893, 895 (1986). In deciding whether a
particular instrument is a dangerous weapon under section 14-87,
“the determinative question is whether the evidence was sufficient
to support a jury finding that a person's life was in factendangered or threatened.” State v. Alston, 305 N.C. 647, 650, 290
S.E.2d 614, 616 (1982).
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.
State v. Thompson, 297 N.C. 285, 289, 254 S.E.2d 526, 528 (1979).
Where there is evidence, however, that the instrument is “an
inoperative firearm incapable of threatening or endangering the
life of the victim[,]” it is “for the jury to determine the nature
of the weapon.” Allen, 317 N.C. at 125-26, 343 S.E.2d at 897.
Thus, where a defendant presents evidence that the weapon used
during a robbery was unloaded or otherwise incapable of firing,
such evidence “tend[s] to prove the absence of an element of the
offense [of armed robbery] and require[s] 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 implements.” State v. Joyner, 67 N.C. App. 134,
136, 312 S.E.2d 681, 682 (1984), affirmed, 312 N.C. 779, 324 S.E.2d
841 (1985); see also Allen, 317 N.C. at 126, 343 S.E.2d at 898
(noting that evidence that a firearm is inoperative forms the basis
for instruction on common law robbery).
In the instant case, there was some evidence tending to show
that the instrument used by defendant was not loaded during the
commission of the robbery and was therefore incapable of
endangering the life of a person. Defendant testified in detailthat before he entered the store, he “[t]ook the bullets out of
[the gun] and placed [them] in a hat, which was in the back seat
[of McLean's automobile], and just covered them up.” Defendant
also described the mechanical process of unloading the weapon.
Moreover, the weapon was not loaded when seized by law enforcement
officers several days after the commission of the robbery. The
State argues that this evidence is neither probative nor credible,
and that the trial court was therefore not required to instruct the
jury on common law robbery. We disagree. Credibility of evidence
is the proper province of the jury, and we do not conclude that the
evidence in question was “so lacking in credibility that the jury
should not have been permitted to consider it.” Allen, 317 N.C. at
126, 343 S.E.2d at 898. Thus, because there was evidence from
which the jury could find that the firearm was inoperable and thus
incapable of threatening or endangering the life of the victim, the
jury should have been instructed on the offense of common law
robbery. The trial court erred in failing to submit the lesser
included offense of common law robbery to the jury. We therefore
vacate defendant's conviction for armed robbery and remand his case
to the trial court for a new trial.
New trial.
Judges GREENE and HUNTER concur.
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