Appeal by defendant from judgment filed 27 February 2002 by
Judge F. Donald Bridges in Gaston County Superior Court. Heard in
the Court of Appeals 16 April 2003.
Attorney General Roy Cooper, by Special Deputy Attorney
General Ted R. Williams, for the State.
Kay S. Murray for defendant appellant.
BRYANT, Judge.
Tommy Lee Burts (defendant) appeals from a judgment filed 27
February 2002 entered consistent with jury verdicts finding him
guilty of carrying a concealed weapon and robbery with a dangerous
weapon.
The State's evidence presented at trial tends to show that, on
22 August 2001, a woman approached Willie James Broner, Jr.
(Broner) and engaged him in small talk. Defendant approached the
pair and asked Broner for a light for a cigarette, but Broner did
not have one. Defendant then pulled out a gun, cocked it, put a
bullet in the chamber, and commanded Broner to give defendant his
money or wallet. Broner gave defendant all of the money in hiswallet, totaling seven dollars. Defendant took the money and
walked away.
Broner flagged down a patrol car driven by Officer J. L.
Sparrow (Officer Sparrow) of the Gastonia Police Department.
Broner described the perpetrator to Officer Sparrow as a light-
skinned black male, large in build, and wearing a grey shirt.
Officer Sparrow drove a few blocks and found defendant, who matched
the description, walking down the street. Officer Sparrow patted
down defendant and found a .380 handgun stuck inside defendant's
waistband. The gun was in a “locked back state” with three .380
bullets in the magazine. This meant the gun could not have been
fired at the time it was found but would require only about a
second to load a bullet into the chamber and render the gun able to
fire. Officer Sparrow returned defendant to the crime scene where
Broner identified defendant as the robber. Following the
identification, Officer Sparrow arrested defendant and conducted a
further search during which he found seven dollars on defendant's
person. Before trial, Officer Sparrow tested defendant's gun by
firing it. He determined the gun would fire the bullets and eject
the shells in the magazine.
Defendant testified, on his own behalf, that he came upon
Broner and the female, whom he identified as an acquaintance, as
they were arguing. When defendant escorted the female away from
Broner, he saw Broner “fishing around in his pockets.” Defendant
pulled out his gun and told Broner to leave them alone. Defendant
and the woman then proceeded to leave the scene. Defendantmaintained that he did not rob or take anything from Broner.
The trial court instructed the jury, over defendant's
objection, that a handgun was a “deadly or dangerous weapon.”
During its deliberations, the jury asked the trial court if it was
required to reach a unanimous verdict on the robbery with a
dangerous weapon charge before moving to lesser-included offenses.
The trial court responded, without objection, that it was up to the
jury to decide the order in which it proceeded as long as the
verdict was unanimous.
________________________________
The issues are whether: (I) the State presented substantial
evidence Broner's life was threatened; (II) it was proper to
instruct the jury that a handgun is a deadly or dangerous weapon;
and (III) the trial court's response to the jury's question was
confusing or coercive of a verdict such that it resulted in plain
error.
I
Defendant first contends the trial court erred by denying his
motion to dismiss for insufficient evidence. A motion to dismiss
requires the trial court to determine whether the State has
presented substantial evidence of each element of the charged
offense and to identify the defendant as the perpetrator.
State v.
Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). The
trial court must consider the evidence in the light most favorable
to the State, giving it the benefit of every reasonable inference
that may be drawn therefrom.
State v. Powell, 299 N.C. 95, 99, 261S.E.2d 114, 117 (1980). If a reasonable inference of the
defendant's guilt may be deduced from the evidence, then the trial
court must deny the motion to dismiss and submit the case to the
jury even though the evidence may also reasonably support an
inference of innocence.
State v. Alexander, 337 N.C. 182, 187, 446
S.E.2d 83, 86 (1994).
The essential elements of robbery with a dangerous weapon are:
(1) the unlawful taking or attempted taking of personal property
from another; (2) the possession, use, or threatened use of a
firearm or other dangerous weapon; and (3) danger or threat to the
life of the victim.
See State v. Moore, 279 N.C. 455, 458, 183
S.E.2d 546, 548 (1971). To overcome a motion to dismiss a charge
of robbery with a dangerous weapon, the State must produce evidence
sufficient to show that the victim of an unlawful taking or
attempted taking of personal property was endangered or threatened
by the use or threatened use of a firearm or other dangerous
weapon.
See State v. Joyner, 295 N.C. 55, 63, 243 S.E.2d 367, 373
(1978).
Defendant argues the evidence fails to establish that Broner's
life was threatened or endangered because defendant's gun was not
in a position to be fired. He bases this argument on evidence that
when the gun was recovered by Officer Sparrow no bullet was
actually in the chamber to be fired, although bullets were in the
magazine.
To assist with resolving the question of the sufficiency of
the evidence to establish the element of whether the defendantemployed a firearm or other dangerous weapon endangering or
threatening the life of the victim, our Supreme Court established
certain rules in
State v. Allen, 317 N.C. 119, 124-25, 343 S.E.2d
893, 897 (1986). Succinctly stated, a motion to dismiss may be
allowed only when all of the evidence affirmatively shows that what
appeared to be a firearm or other dangerous instrument was in fact
not capable of endangering or threatening the life of another.
Id.
In all other cases, the motion should be denied and the charge
submitted to the jury.
See id.
The case at bar is clearly not one
in which all of the evidence shows that the firearm pointed at the
victim by defendant was not capable of endangering or threatening
the victim's life. The State's evidence showed at the time of the
robbery, defendant produced the weapon, cocked it and caused a
bullet to be put in the chamber. There was also evidence that
Officer Sparrow tested the weapon and found it to be functional.
Thus, there was evidence the gun was capable of threatening or
endangering Broner's life. The trial court therefore properly
denied defendant's motion to dismiss.
II
Defendant next contends the trial court erred by peremptorily
instructing the jury that a handgun is a dangerous or deadly
weapon. He argues there was conflicting evidence, in the form of
the Officer Sparrow's testimony regarding the gun being in a locked
back position, as to whether the handgun was dangerous or deadly.
Defendant also cites his testimony that he merely “displayed” the
gun in self-defense. We reject this contention. A pistol is considered a deadly weapon as a matter of law.
State v. Reives, 29 N.C. App. 11, 12, 222 S.E.2d 727, 728 (1976);
see also N.C.G.S. § 14-87 (2001) (robbery with a firearm or other
dangerous weapon). Moreover, as a general rule, 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
another, and there is no evidence to the contrary, there is a
mandatory presumption that a weapon is a deadly weapon.
State v.
Joyner,
312 N.C. 779, 782, 324 S.E.2d 841, 844 (1985).
All of the
evidence in this case shows that defendant's gun was loaded with
ammunition and was operational. In addition, there is no evidence
the gun was either incapable of being fired or was not a real
firearm. Defendant himself admitted on cross-examination that the
gun was loaded with ammunition and that it was operational. Thus,
there was no contention that the handgun was not a functioning
firearm, and therefore, the trial court did not err in instructing
the jury that the handgun was a dangerous weapon.
III
Defendant's final contention is that the trial court committed
plain error in its instructions responding to the jury's inquiry.
After retiring to deliberate, the jury returned to the courtroom
and asked the following question:
In the event the jury cannot unanimously agree
to guilty of robbery with a dangerous weapon,
do we, the jury, move on to guilty of assault
with a deadly weapon or must we first be
unanimous to a yay [sic] or nay to option one
prior to moving on to option two?
The trial court responded:
Now with regard to that question,
remember again what I told you; that a verdict
is not a verdict until all twelve of you have
agreed unanimously as to what your verdict
shall be. You may not render a verdict, any
verdict, by majority vote. However, as to the
order in which you approach your consideration
of the possible verdicts on the verdict sheet,
I am going to leave that to you. You may
start at the top and work your way to the
bottom or you can start at the bottom and work
your way to the top, or you can start in the
middle and work both ways. But you must
consider each of the possible verdicts on the
verdict sheet and you must agree unanimously
as to each of those possible verdicts on the
verdict sheet and then choose only one
possible verdict on the verdict sheet.
Whatever your choice is, you must agree
unanimously on that choice. So, in other
words, it does not matter in which order you
address your possible considerations, but you
must give fair and careful consideration to
each of those possible verdicts and you must
agree unanimously on what your verdict shall
be among those possible verdicts. So with
that I will ask you to go back and resume your
deliberations.
The trial court offered the parties the opportunity to make
corrections to the court's re-instruction. Defendant declined the
opportunity. Only on appeal does defendant argue the instructions
were confusing because, in the original charge, the court directed
the jury to consider the charge of robbery with a dangerous weapon
first before proceeding to consider lesser charges. He also argues
the instruction was coercive because it led the jury to believe it
must render a verdict.
Plain error may not be found unless it is shown that absent
the instructional error, the jury probably would have reached a
different verdict.
See State v. Odom, 307 N.C. 655, 660, 300
S.E.2d 375, 378 (1983). The burden of showing plain error isplaced on the defendant because the defendant, as here, could have
prevented or corrected any error by objecting when offered the
opportunity by the trial court.
State v. Walker, 316 N.C. 33, 39,
340 S.E.2d 80, 83 (1986). We find nothing confusing in this
instruction rising to the level of plain error, nor is there
anything in the instruction that could be construed as coercing a
verdict. Accordingly, the trial court did not commit plain error.
No error.
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***