Appeal by defendant from judgment dated 23 May 2002 by Judge
Timothy L. Patti in Gaston County Superior Court. Heard in the
Court of Appeals 12 June 2003.
Attorney General Roy Cooper, by Special Deputy Attorney
General Amar Majmundar, for the State.
Public Defender Isabel Scott Day, by Assistant Public Defender
Julie Ramseur Lewis, for defendant appellant.
BRYANT, Judge.
Jimmy Lee Bellamy (defendant) appeals from a judgment dated 23
May 2002 entered consistent with a jury verdict finding him guilty
of robbery with a dangerous weapon. At trial beginning on 21 May
2002, after the jury had been impaneled, defendant moved for a
mistrial. In support of this motion defendant stated that one of
the jurors had indicated that she knew defendant and that he had
been in jail. The parties and the trial court agreed that the
juror had also indicated she could still be fair. The State
contended the only statement the juror made was that she knew
defendant from the jail. The juror's actual statement is not
available as the transcript of jury selection is not included in
the record on appeal.
The State's evidence against defendant tends to show that on
18 October 2001, defendant entered the Pic-A-Flick video store in
Gastonia, North Carolina at about 10:45 p.m. Two store employees,
John Edison and Tonya Curry, were present at the time. Defendant
inquired where the adult videos were located, and Edison unlocked
the room where those videos were stored. Defendant selected two
empty video boxes, and Edison led him back to the counter. Edison
handed the empty video boxes to Curry so she could place the actual
videotapes in the boxes and Edison then returned behind the
counter. Curry exclaimed, “He's bolting!” Edison saw defendant
trying to run out of the store, so he grabbed a stapler from behind
the counter and began pursuing defendant. Defendant first
unsuccessfully attempted to flee through the store's entrance-onlydoor, but then found the exit and ran across the parking lot with
Edison in pursuit. As they came to the end of the lot, Edison
threw the stapler at defendant but missed. The chase ended
approximately twenty feet from the store when Defendant came to the
entrance of a dead-end road. Defendant turned around waving a
pocketknife and asked, “You want a piece of this?” Edison was
within five or six feet of the defendant and decided that “movies
are not worth getting cut over.” Edison returned to the video
store where he learned Curry had already called the police.
Officer Eric Howard testified that he responded to the call
and began searching for the suspect. Officer Howard saw defendant,
whom he recognized. Officer Howard chased defendant and ultimately
caught and arrested him. Defendant was searched for weapons, and
Officer Howard discovered the two adult videos and a donation can
for the Children's Rights Fund Association. Edison identified
defendant as the man who stole the videos. Officer Howard took
defendant to the hospital for treatment of a cut he had received to
his head. While being transported, defendant, despite Officer
Howard's attempts to tell him not to say anything, admitted
stealing “stuff” but denied having or using a knife. At the
hospital, Officer Howard searched defendant's jacket and found a
pocketknife with a two-to-three-inch blade. On cross-examination,
defendant asked Officer Howard if it was possible that defendant
might have been under the influence at the time of his arrest.
Officer Howard responded that “it was possible because I know his
past, but that night I don't know for sure if he was or was not.”
Defendant did not object to Officer Howard's answer. Defendantpresented no evidence, and the trial court denied his motion to
dismiss. The trial court submitted the charges of robbery with a
dangerous weapon and the lesser-included offense of common law
robbery to the jury.
_________________________
The issues are whether: (I) defendant sufficiently preserved
for appellate review the grounds for his mistrial motion; (II)
allowing Officer Howard's testimony on cross-examination that,
based on his knowledge of defendant's past, it was possible
defendant was under the influence constituted plain error; (III)
the State presented sufficient evidence that defendant committed
robbery with a dangerous weapon; and (IV) failure to submit the
offense of misdemeanor larceny to the jury was prejudicial error.
I
[1] Defendant first argues the trial court abused its
discretion by failing to grant his motion for mistrial based on the
juror's allegedly inflammatory statement, which defendant asserts
resulted in substantial and irreparable prejudice to him.
Defendant, however, has failed to include the actual transcript of
the voir dire during which the comment was made. The only
references in this record to the statement are the conflicting
interpretations of defendant and the State made during a very brief
hearing on defendant's motion for a mistrial. Without an adequate
record to fully reconstruct the juror's comments, this Court has no
ability to determine whether prejudicial error occurred.
See State
v. Moore, 75 N.C. App. 543, 548, 331 S.E.2d 251, 254-55 (1985).
“[A]s a rule of practice, counsel who seek to rely upon analleged impropriety in the jury selection process must provide the
reviewing court with the relevant portions of the transcript of the
jury voir dire.”
Jackson v. Housing Authority of High Point, 321
N.C. 584, 586, 364 S.E.2d 416, 417 (1988). Counsel's statement
“cannot serve as a substitute for record proof.”
Id. Even if we
assume defendant's characterization of the statement is correct, we
are unable to determine how it was prejudicial in light of the
juror's indication that she would remain impartial and without any
other facts appearing in the record. Thus, the record before us is
insufficient for appellate review and this assignment of error must
be dismissed.
II
[2] Defendant next asserts the trial court committed plain
error by allowing Officer Howard to testify on cross-examination
that, based on his knowledge of defendant, it was possible that
defendant was under the influence. Defendant contends this was
irrelevant, non-responsive, and highly prejudicial testimony.
Officer Howard's testimony elicited on cross-examination, however,
came in response to an attempt by defendant to show he was impaired
at the time of his arrest and confession, thus undermining the
reliability of the confession.
Due to defendant's failure to object to Officer Howard's
testimony, such testimony would need to rise to the level of plain
error to warrant a reversal.
See State v. Hartman, 90 N.C. App.
379, 383, 368 S.E.2d 396, 398-99 (1988). Under plain error
analysis, the burden is on the defendant to show that “absent the
error the jury probably would have reached a different verdict.”
Id. (citations omitted). Given the overwhelming evidence of guilt
in this case, based on the unequivocal and detailed testimony of
Edison and Officer Howard that defendant stole the tapes through
force and was subsequently caught with the tapes in his possession,
defendant has failed to meet this burden. Thus, admission of
Officer Howard's testimony was not plain error.
III
[3] Defendant also argues the trial court erred by not
granting his motion to dismiss the charge of armed robbery at the
close of the evidence. Specifically, defendant contends there was
insufficient evidence that: (A) the pocketknife was a dangerous
weapon; (B) Edison's life was threatened or endangered; and (C) the
use of force was part of the same transaction as the taking of the
videos.
In order to withstand a motion to dismiss a charge of robbery
with a dangerous weapon, the State is required to present
substantial evidence of all the essential elements of that crime.
State v. Powell, 299 N.C. 95, 101-02, 261 S.E.2d 114, 119 (1980).
The essential elements of robbery with a dangerous weapon are “(1)
the unlawful taking or attempt to take personal property from the
person or in the presence of another (2) by use or threatened use
of a firearm or other dangerous weapon (3) whereby the life of a
person is endangered or threatened.”
State v. Small, 328 N.C. 175,
181, 400 S.E.2d 413, 416 (1991) (citation omitted).
A. Dangerous Weapon
Defendant asserts that there was no evidence to support a
finding that the pocketknife brandished by defendant was adangerous weapon. A knife is not always a dangerous weapon
per se;
instead, the circumstances of the case are determinative.
See
State v. Smallwood, 78 N.C. App. 365, 368, 337 S.E.2d 143, 144
(1985). The determination of whether an object is a dangerous
weapon “depends upon the nature of the instrument, the manner in
which the defendant used it or threatened to use it, and in some
cases the victim's perception of the instrument and its use.”
State v. Peacock, 313 N.C. 554, 563, 330 S.E.2d 190, 196 (1985).
A pocketknife may be a dangerous weapon.
See State v. Sturdivant,
304 N.C. 293, 301, 283 S.E.2d 719, 726 (1981).
In this case, defendant brandished a knife, submitted into
evidence, with a two-to-three-inch blade. Defendant threatened
Edison by asking, “do you want a piece of this?” Edison testified
that it was not worth “getting cut over.” This is substantial
evidence that defendant threatened to use the pocketknife in a
manner making it a dangerous weapon and that Edison perceived the
knife as a dangerous weapon.
B. Life Threatened or Endangered
Defendant also argues that Edison's life was not in fact
endangered or threatened because the pocketknife was not a
dangerous weapon capable of inflicting death or great bodily harm.
As we have already noted, the evidence was sufficient for the jury
to determine whether the pocketknife was in fact a dangerous
weapon; the evidence was also sufficient for the jury to determine
whether defendant's brandishing of it constituted a threat to
Edison's life.
See also id. (“pocketknife . . . is unquestionably
capable of causing serious bodily injury or death”).
C. Continuous Transaction
Defendant further argues that defendant's taking of the videos
and use of the pocketknife were not part of a single transaction,
and thus, defendant could not be guilty of robbery with a dangerous
weapon.
Robbery with a dangerous weapon requires that “the defendant's
use or threatened use of a dangerous weapon must precede or be
concomitant with the taking, or be so joined with it in a
continuous transaction by time and circumstances as to be
inseparable.”
State v. Hope, 317 N.C. 302, 306, 345 S.E.2d 361,
364 (1986). “[T]he exact time relationship, in armed robbery
cases, between the violence and the actual taking is unimportant as
long as there is one continuing transaction.”
State v. Lilly, 32
N.C. App. 467, 469, 232 S.E.2d 495, 496-97 (1977). Defendant
argues that, since he had already taken the videos and left the
premises, his threatening of Edison with the knife could not have
been part of a single transaction. For purposes of robbery,
however, “the taking is not over until after the thief succeeds in
removing the stolen property from the victim's possession.”
State
v. Sumpter, 318 N.C. 102, 111, 347 S.E.2d 396, 401 (1986).
Property is in the legal possession of a person if it is under the
protection of that person.
State v. Barnes, 125 N.C. App. 75, 79,
479 S.E.2d 236, 238,
aff'd, 347 N.C. 350, 492 S.E.2d 355 (1997)
(per curiam). “Thus, just because a thief has physically taken an
item does not mean that its rightful owner no longer has possession
of it.”
Id.
In this case, defendant took the videos and fled with Edisonin pursuit. The chase ended only about twenty feet from the video
store; at no time did the chase cease or Edison lose sight of
defendant; and defendant did not make good his escape until after
threatening Edison with the knife. Defendant's brandishing of a
weapon, as in
Barnes, was necessary to complete the taking of the
videos by thwarting Edison's attempt to retain lawful possession of
them.
See id. From these facts, the taking and threatened use of
force was so joined by time and circumstances so as to constitute
a single transaction. Thus, the trial court did not err in denying
the motion to dismiss as there was substantial evidence that the
pocketknife was a dangerous weapon used to threaten Edison's life
during the theft of the videos.
(See footnote 1)
IV
[4] Defendant further argues that the jury should have been
instructed on misdemeanor larceny. First, defendant again raises
the contention that there was no continuous transaction between the
taking and brandishing of the weapon, which we have already
rejected. Alternatively, defendant claims his denial of possessing
or using a knife to Officer Howard constituted conflicting evidence
as to whether he was wielding a knife. Larceny is a
lesser-included offense of robbery with a dangerous weapon.
State
v. White, 322 N.C. 506, 514, 369 S.E.2d 813, 817 (1988). Due
process requires that a lesser-included offense should be submittedto the jury when there is evidence supporting a finding that the
lesser included-offense has been committed.
See State v. Arnold,
329 N.C. 128, 139, 404 S.E.2d 822, 829 (1991). The trial court is
not required to submit a lesser-included offense “when the State's
evidence is positive as to every element of the crime charged and
there is no conflicting evidence relating to any element of the
crime charged.”
State v. Smith, 110 N.C. App. 119, 134, 429 S.E.2d
425, 432 (citations omitted),
aff'd, 335 N.C. 162, 435 S.E.2d 770
(1993) (per curiam).
In this case, defendant's statement to Officer Howard that he
did not have or use a knife constituted conflicting evidence of the
dangerous weapon element of robbery with a dangerous weapon and
clearly supported submission of the offense of common law robbery
to the jury. If we were to assume that defendant's statement also
amounted to evidence that defendant committed no robbery at all and
instead committed only misdemeanor larceny,
see White, 322 N.C. at
518, 369 S.E.2d at 819, failure to submit the misdemeanor offense
to the jury was harmless beyond a reasonable doubt,
see N.C.G.S. §
15A-1443(b) (2001) (violation of constitutional rights is
prejudicial, unless appellate court concludes error is harmless
beyond a reasonable doubt). Although, defendant denied possessing
or using a knife to accomplish the taking, he did not deny his
threat of force and even admitted to Officer Howard that he did in
fact turn to Edison and state, “what you [sic] going to do.”
Edison's testimony unequivocally shows that in a single, continuous
transaction defendant stole the videotapes and, in order to escape
from Edison, threatened him with a knife after a pursuit that endedonly about twenty feet from the store. That knife was found later
that night by Officer Howard in defendant's jacket pocket. It has
been made an exhibit to the record on appeal and is available for
review by this Court. Given the overwhelming evidence of
defendant's guilt of robbery with a dangerous weapon, we hold the
trial court did not commit reversible error in failing to submit
the offense of misdemeanor larceny to the jury.
No error.
Judges McGEE and GEER concur.
Footnote: 1