NO. COA02-970
Appeal by defendant from judgment dated 19 October 2001 by
Judge Gary E. Trawick in Forsyth County Superior Court. Heard in
the Court of Appeals 16 April 2003.
Attorney General Roy Cooper, by Assistant Attorney General
David L. Elliott, for the State
Hall & Hall, P.C., by Susan P. Hall, for defendant appellant.
BRYANT, Judge.
Shawn Kelvin Sprinkle (defendant) appeals from a judgment
dated 19 October 2001 entered consistent with his guilty plea to
felony possession of cocaine
(See footnote 1)
and a jury verdict finding him guilty
of robbery with a dangerous weapon.
The State presented evidence at trial tending to show that on
7 November 2000, Gabrielle Hendren (Hendren) and her mother
Virginia Hendren drove to her mother's place of business at The
Casket Store in Winston-Salem, North Carolina. The car was a 2001
Honda Accord owned and driven by Hendren's mother. Hendren'smother went inside the store for a few minutes to conduct business
and left the car running while Hendren remained in the vehicle.
While Hendren's mother was inside the store, defendant approached
the vehicle, opened the door, and got into the car. Defendant held
a knife to Hendren's throat and told her to get out of the car or
he would kill her. Hendren got out of the car and defendant drove
away, hitting Hendren with the car as he sped off. Items in the
car included $5,000.00, purses, and medication as well as a heart
monitor. Defendant was subsequently arrested while in possession
of the car. Following the presentation of evidence at trial, the
trial court instructed the jury, without objection, solely on the
offense of robbery with a dangerous weapon.
_______________________________
The issues are whether: (I) it was plain error for the trial
court to fail to instruct the jury on the lesser-included offenses;
and (II) there was sufficient evidence of all the elements of
robbery with a dangerous weapon and that defendant was the person
who committed the crime to allow the case to be submitted to the
jury.
I
Defendant first argues the trial court committed plain error
by failing to instruct the jury on the lesser-included offenses of
common law robbery, assault, and unauthorized use of a motor
vehicle. Defendant further contends that common law robbery was an
appropriate charge to give the jury because defendant did not take
the property from its owner and did not threaten the owner of theproperty with the knife. Additionally, defendant argues that he
could not be guilty of armed robbery regarding the items of
personal property in the automobile because he did not know the
items were in the vehicle.
After careful review of the record, briefs, and contentions of
the parties, we find no error. Initially, we note that no
objection to the jury instructions was made at trial and therefore
Rule 10(b)(2) bars defendant's assigning as error the trial court's
failure to instruct on the possible verdict of common law robbery.
See N.C.R. App. P. 10(b(2). The “plain error” rule, however,
allows for review of some assignments of error normally barred by
waiver rules such as Rule 10(b)(2).
See State v. Odom, 307 N.C.
655, 661, 300 S.E.2d 375, 378 (1983). “Under a plain error
analysis, defendant is entitled to a new trial only if the error
was so fundamental that, absent the error, the jury probably would
have reached a different result.”
State v. Jones, 355 N.C. 117,
125, 558 S.E.2d 97, 103 (2002). Our Supreme Court has further
stated that “even when the 'plain error' rule is applied, '[i]t is
the rare case in which an improper instruction will justify
reversal of a criminal conviction when no objection has been made
in the trial court.'”
Odom, 307 N.C. at 660-61, 300 S.E.2d at 378
(quoting
Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203,
212 (1977)).
“An instruction on a lesser-included offense must be given
only if the evidence would permit the jury rationally to find
defendant guilty of the lesser offense and acquit him of thegreater.”
State v. Gary, 348 N.C. 510, 524, 501 S.E.2d 57, 67
(1998) (citing
State v. Conaway, 339 N.C. 487, 514, 453 S.E.2d 824,
841 (1995)). We conclude that defendant in this case was not
entitled to an instruction on common law robbery. Hendren
testified that defendant “pulled out a knife and held it to [her]
throat and said, 'get out or I'll kill you.'” Defendant then took
the vehicle. There is no evidence in the record to support an
inference that defendant accomplished the robbery without the use
of a dangerous weapon, nor is there any evidence from which a jury
could rationally find the defendant guilty only of either assault,
with no larceny, or unauthorized use of a motor vehicle instead of
robbery with a dangerous weapon.
In regard to defendant's argument that armed robbery was an
inappropriate charge because the actual owner of the property was
not present, his argument is wholly without merit. Our Supreme
Court has stated that “[a]s long as the evidence shows the
defendant was not taking his
own property, ownership is irrelevant.
A taking from one having the care, custody or possession of the
property is sufficient.”
State v. Jackson, 306 N.C. 642, 650, 295
S.E.2d 383, 388 (1982) (citations omitted) (emphasis in original).
Finally, it is clear from the evidence that defendant intended to
take away Hendren's mother's vehicle without her consent with the
knowledge he was not entitled to do so. Accordingly, we conclude
it was not plain error to instruct the jury on robbery with a
dangerous weapon, and nor was it plain error to fail to instruct
the jury on any lesser-included offenses.
II
We next consider whether there was sufficient evidence to
support defendant's conviction. Defendant again cites the fact
that the owner of the property was not present at the robbery.
Thus, defendant contends that because he did not take the property
from its owner and because the knife was not directed toward the
owner, the essential elements of the offense were lacking.
Defendant further argues that he did not have the necessary
mens
rea for the offense because he was not aware of the property in the
automobile. Finally, defendant notes that Hendren was hesitant in
selecting him from a physical lineup and identifying him as the
perpetrator of the crime.
To survive a motion to dismiss, the State must present
substantial evidence of each essential element of the charged
offense and that the defendant is the perpetrator.
State v. Cross,
345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997)
. “'Substantial
evidence is relevant evidence that a reasonable mind might accept
as adequate to support a conclusion.'”
Id.
at 717, 483 S.E.2d at
434 (quoting
State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595
(1992)). When reviewing the sufficiency of the evidence, “[t]he
trial court must consider such evidence in the light most favorable
to the State, giving the State the benefit of every reasonable
inference to be drawn therefrom.”
State v. Patterson, 335 N.C.
437, 450, 439 S.E.2d 578, 585 (1994) (citing
State v. Vause, 328
N.C. 231, 237, 400 S.E.2d 57, 61 (1991)).
In the instant case, defendant was charged with robbery witha dangerous weapon. The essential elements of robbery with a
dangerous weapon are: “(1) an unlawful taking or an 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. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518
(1998) (citing N.C.G.S. § 14-87 (1994);
State v. Small, 328 N.C.
175, 400 S.E.2d 413 (1991)). Here, Hendren testified that
defendant put a knife to her throat, forced her to get out of the
vehicle, and drove away in her mother's vehicle. As noted above,
it is of no consequence that Hendren was not the actual owner of
the vehicle. The fact that defendant was not taking his own
property was sufficient.
See Jackson, 306 N.C. at 654, 295 S.E.2d
at 388. Additionally, Hendren was able to identify defendant in
both a photographic array and a physical lineup and identified him
again at trial as the perpetrator. Defendant was also arrested
while in possession of the stolen vehicle. Furthermore, there is
no dispute that he took the vehicle. Thus, there can be no dispute
that he unlawfully took the property of another. Accordingly,
taken in the light most favorable to the State, a reasonable mind
could conclude from the evidence that defendant committed the
offense of robbery with a dangerous weapon.
Cross, 345 N.C. at
717, 483 S.E.2d at 434.
No error.
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).
Footnote: 1