An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-970


Filed: 6 May 2003


    v.                            Forsyth County
                                Nos. 00 CRS 58217-18
SHAWN KELVIN SPRINKLE                        

    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.

    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.

    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
    Defendant does not advance any appeal from the felony possession of cocaine conviction.

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