STATE OF NORTH CAROLINA
v. Forsyth County
No. 00 CRS 58997
ELROY JONES,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Susan R. Lundberg, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Constance E. Widenhouse, for defendant-appellant.
HUDSON, Judge.
Defendant appeals his conviction for robbery with a dangerous
weapon. Because we conclude that the trial court erred by refusing
to instruct the jury on the lesser offense of common law robbery,
we remand for a new trial.
The State adduced evidence tending to show that defendant
robbed an optometrist's office on Fourth Street in Winston-Salem on
1 November 2000. The office secretary, Jean Behm, testified that
defendant entered the office at 3:30 p.m., grabbed her by the hair,
displayed “[a] black serrated knife[,]” and ordered her to show him
where the money was. Behm led defendant to her desk and produced
the office's bank deposit bag. Defendant took three one-dollarbills and approximately $5 in coins from the bag. After releasing
Behm, defendant stole $10 from a change purse in her pocketbook.
He then fled the office and drove off in a red car.
During the charge conference at the conclusion of the
evidence, defendant requested an instruction on the lesser included
offense of common law robbery. The trial court declined to
instruct the jury on the lesser offense, stating “that if the jury
finds that the defendant committed the crime, it could only be the
crime of armed robbery . . . . It is either armed robbery or not.”
The court thus presented the jury with two possible verdicts:
guilty of robbery with a dangerous weapon or not guilty. However,
in instructing the jury on the elements of the charged offense, the
trial court defined “dangerous weapon” as “a weapon which is likely
to cause death or serious bodily injury.” It did not instruct the
jury that the knife allegedly brandished by defendant was a
dangerous weapon as a matter of law but left it to the jury to
decide.
Defendant argues on appeal that the trial court erred in
refusing to instruct the jury on common law robbery at the same
time that it submitted the question of the use of a dangerous
weapon to the jury. Because the knife was not described in any
detail or offered into evidence at trial, and was not used to
injure Behm during the robbery, defendant asserts_and the trial
court recognized_that the knife's status as a dangerous weapon was
a question of fact for the jury. Thus, defendant maintains that
common law robbery was an alternative the jury should have beengiven. We agree.
As an initial matter, we address the State's claim that
defendant has not preserved this issue for appeal because he failed
to object (1) to the court's denial of his request for an
instruction on common law robbery or (2) to the jury instructions
as given. Our Rules of Appellate Procedure require a party to
“have presented to the trial court a timely request, objection or
motion, stating the specific grounds for the ruling” in order to
preserve an issue for appeal. N.C. R. App. P. 10(b)(1). The party
must also obtain a ruling from the trial court on the request,
objection or motion. Id. The Rules further provide that “[a]
party may not assign as error any portion of the jury charge or
omission therefrom unless he objects thereto before the jury
retires to consider its verdict, stating distinctly that to which
he objects and the grounds of his objection[.]” N.C. R. App. P.
10(b)(2). Defendant made a timely request during the charge
conference for an instruction on common law robbery and obtained an
adverse ruling from the trial judge. Therefore, defendant properly
preserved this question for appeal under Rule 10(b)(2). See
Roberts v. Young, 120 N.C. App. 720, 726, 464 S.E.2d 78, 83 (1995).
A defendant is "'entitled to an instruction on a lesser
included offense if the evidence would permit a jury rationally to
find him guilty of the lesser offense and acquit him of the
greater.'" State v. Leazer, 353 N.C. 234, 237, 539 S.E .2d 922,
924 (2000) (quoting Keeble v. United States, 412 U.S. 205, 208, 36
L. Ed. 2d 844, 847 (1973)). Common law robbery is a lesserincluded offense of robbery with a dangerous weapon. State v.
Frazier, __ N.C. App. __, __, 562 S.E.2d 910, 912-13 (2002). The
distinction between the two offenses is that robbery with a
dangerous weapon is “'accomplished by the use or threatened use of
a dangerous weapon whereby the life of a person is endangered or
threatened.'" Id. (quoting State v. Peacock, 313 N.C. 554, 562,
330 S.E.2d 190, 195 (1985)). Even where the evidence establishes
the use of a weapon to commit a robbery, “[i]t is error to refuse
to submit common law robbery to the jury where the evidence does
not compel a finding that the weapon allegedly used is a dangerous
weapon as a matter of law.” State v. Smallwood, 78 N.C. App. 365,
367, 337 S.E.2d 143, 144 (1985).
“In deciding whether a particular instrument is a dangerous
weapon . . ., 'the determinative question is whether the evidence
was sufficient to support a jury finding that a person's life was
in fact endangered or threatened.'" Frazier, __ N.C. App. at __,
562 S.E.2d at 913 (quoting State v. Alston, 305 N.C. 647, 650, 290
S.E.2d 614, 616 (1982)). “[T]he evidence in each case determines
whether a certain kind of knife is properly characterized as a
lethal device as a matter of law or whether its nature and manner
of use merely raises a factual issue about its potential for
producing death.” State v. Sturdivant, 304 N.C. 293, 301, 283
S.E.2d 719, 726 (1981). “In cases where the knife has not been
produced or described in detail, and the victim has not suffered
injury or death, the question of whether a knife is a dangerous
weapon is generally for the jury.” Smallwood, 78 N.C. App. at 369,337 S.E.2d at 145; see also State v. Ross, 268 N.C. 282, 150 S.E.2d
421 (1966); State v. Norris, 264 N.C. 470, 141 S.E.2d 869 (1965)
(per curiam)).
In Smallwood, the knife used in the robbery was not introduced
at trial. 78 N.C. App. at 371, 337 S.E.2d at 146. It was
described by a witness as “approximately that long[.]” Id. The
victim testified that the defendant put the knife to his throat,
but another witness claimed that the defendant had kept the knife
“down at [the defendant's] side.” Id. Based on this evidence,
this Court held that the trial court “erred in defining the knife
as a dangerous weapon and in refusing to submit common law robbery
to the jury.” Id.; see also Norris, 264 N.C. at 473, 141 S.E.2d at
872 (1965) (pocket knife, not otherwise described, that was pointed
at the victim supported a jury charge on both robbery with a
dangerous weapon and common law robbery).
Here, the prosecution's only evidence regarding the nature and
use of the knife was the following testimony from Behm:
Q. Did [defendant] have anything with him at
that point in time?
A. He had a knife. A black serrated knife.
Q. Where did he have that knife?
A. In his right hand.
Q. Where was the knife in relation to you?
A. Well I don't remember at that time where
the knife was in relation to me but later on I
saw it more when I opened the door. Leaned
down and opened the drawer he had the knife in
his hand.
Behm confirmed that defendant was carrying the knife when hefirst demanded the money. She further described leading defendant
to the money while he grabbed her by the hair.
A. Well I walked. He had my hair and I
walked.
Q. Were you able to see the knife at that
point?
A. Yes. It was in his right hand.
Q. Where was it in relation to you?
A. It wasn't close to me. It was, you know,
down there.
Q. Was he holding it out?
A. Yes.
Q. He didn't have it up against your skin?
A. No.
Behm also gave the following account of defendant's theft of
her change purse:
Q. And he was how far away from you at that
point in time?
A. Oh, close. About here.
Q. Would that be about two feet?
A. Yes.
Q. Did he have the knife on you during this
entire time?
A. No.
Q. Did he have the knife out the entire time?
A. I don't remember.
. . .
Q. Why didn't you try and stop him?
A. Because he was bigger than me. I thoughthe would, you know, hurt me or punch me or
something.
In light of this evidence, the trial court properly submitted
to the jury the determination of whether defendant used or
threatened to use a dangerous weapon. The trial court properly
recognized that the State's evidence was insufficient to resolve as
a matter of law whether defendant used a dangerous weapon. Here,
as in Smallwood, the prosecution did not produce the knife
allegedly used by defendant. But see State v. Wiggins, 78 N.C.
App. 405, 407, 337 S.E.2d 198, 199 (1985) (where, inter alia,
weapon itself was offered into evidence, no error to declare weapon
deadly as a matter of law); State v. Parker, 7 N.C. App. 191, 195,
171 S.E.2d 665, 667 (1970) (same). Furthermore, Behm described the
knife only as “black” and “serrated[.]” There was no evidence of
the size, strength or sharpness of the blade, as there was in State
v. Stevens, 94 N.C. App. 194, 195, 379 S.E.2d 863, 864 (ten-inch
butcher knife a dangerous weapon per se), disc. review denied, 325
N.C. 275, 384 S.E.2d 527 (1989), and Wiggins, 78 N.C. App. at 407,
337 S.E.2d at 199 (boxcutter with an “exposed, sharply pointed
razor blade” declared deadly per se). Nor was Behm cut with the
knife. Cf. State v. Young, 317 N.C. 396, 417, 346 S.E.2d 626, 638
(1986) (in reaching conclusion that knife was dangerous per se,
court considered fact that the victim was cut with it); State v.
Sanders, 81 N.C. App. 438, 439, 344 S.E.2d 592, 593 (same), disc.
review denied, 318 N.C. 419, 349 S.E.2d 604 (1986). To the
contrary, Behm testified that the knife, although visible in
defendant's right hand, was kept “down there” and “wasn't close tome.” Cf. State v. Tarrant, 70 N.C. App. 449, 452, 320 S.E.2d 291,
294 (1984) (deadly weapon where, inter alia, the knife was held at
victim's throat); Wiggins, 78 N.C. App. at 407, 337 S.E.2d at 199
(same, where boxcutter held “a couple of inches from [victim's]
side”). Finally, in explaining the fear evoked by defendant, Behm
did not refer to the knife but alluded to defendant's size and to
her concern that he might “hurt me or punch me or something.”
Given this evidence, we conclude that the knife's status as a
dangerous weapon was properly a question of fact for the jury.
Here the trial court defined “dangerous weapon” for the jury
but left it to determine whether the knife at issue here met the
standard. Since the jury could have answered the question in the
negative, it should have been given the option of finding the
defendant guilty of common law robbery, which is distinguished from
the greater offense (robbery with a dangerous weapon) only by the
absence of this element. “Accordingly, defendant was prejudiced by
the court's failure to instruct on the lesser included offense of
common law robbery entitling him to a new trial on the charge of .
. . robbery with a dangerous weapon.” State v. Brandon, 120 N.C.
App. 815, 820, 463 S.E.2d 798, 802 (1995); accord Smallwood, 78
N.C. App. at 372, 337 S.E.2d at 147.
In light of our ruling above, we do not reach defendant's
second claim regarding the re-opening of the jury voir dire by the
trial court after the original jury had been impaneled. This
procedure is unlikely to recur on remand and, therefore, need not
be reviewed now. See State v. Ward, 354 N.C. 231, 267, 555 S.E.2d251, 273 (2001).
Defendant's remaining assignments of error are not discussed
in his brief to this Court and are deemed abandoned under N.C. R.
App. P. 28(b)(6).
Judgment vacated; remanded for a new trial.
Chief Judge EAGLES and Judge MCCULLOUGH concur.
Report per Rule 30(e).
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