State v Hunter, (02-1050) 04/01/2003

Appeal by defendant from judgment entered 8 February 2002 by Judge Richard D. Boner in Lincoln County Superior Court. Heard in the Court of Appeals 24 March 2003.

Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Gayl M. Manthei, for the State.

J. Clark Fischer for defendant-appellant.

HUNTER, Judge.

    Dennis Roy Hunter (“defendant”) was charged with armed robbery. A jury found defendant guilty and the trial court sentenced defendant to 120-153 months imprisonment. Defendant appeals. We find no error.
    The State's evidence tended to show that at approximately 8:30 p.m. on 4 December 2001, Michael Whitaker (“Whitaker”) drove to the home of his friend, Dennis Guffey (“Guffey”), who was interested in purchasing a four-wheeler that defendant had told him about. Whitaker loaned Guffey $1,000.00 that night to put towards the purchase of the $2,800.00 four-wheeler. Guffey and Whitaker left Guffey's residence and drove to the home of defendant. Afterdefendant entered Whitaker's truck, he gave Whitaker directions to the location of the four-wheeler. During the drive, defendant asked to see the money to ensure that Guffey had enough money to buy the four-wheeler. Guffey took the money from his pocket and counted the money totaling $2,800.00. Defendant told Guffey to “give him the money” and Guffey laughed. Defendant then told Guffey that he was serious, pulled out a pocket knife with a six inch blade and put the knife up to Guffey's chest. At this time, Whitaker stopped the truck. Defendant grabbed the money, exited the truck and fled. Guffey and Whitaker drove through the area looking for defendant for approximately one hour before contacting police. Guffey testified that he felt “life-threatened” when defendant pulled the knife on him. Conversely, defendant's evidence tended to show that on the night of the robbery he was with his girlfriend, Angela Raborn, at a local Days Inn.
    In his sole argument on appeal, defendant contends the trial court erred by failing to instruct the jury on the lesser included offenses of common law robbery and larceny from the person. He argues that “the evidence before the jury was ambiguous on [his] use of a deadly weapon.” We disagree.
    A trial judge is required to instruct the jury on all lesser included offenses that are supported by the evidence, even if such an instruction is not requested. See State v. Montgomery, 341 N.C. 553, 567, 461 S.E.2d 732, 739 (1995). “The trial court may refrain from submitting the lesser offense to the jury only where the 'evidence is clear and positive as to each element of the offensecharged' and no evidence supports a lesser-included offense.” State v. Lawrence, 352 N.C. 1, 19, 530 S.E.2d 807, 819 (2000) (quoting State v. Peacock, 313 N.C. 554, 558, 330 S.E.2d 190, 193 (1985)). However, “[a] defendant is not entitled to an instruction on a lesser included offense merely because the jury could possibly believe some of the State's evidence but not all of it.” State v. Annadale, 329 N.C. 557, 568, 406 S.E.2d 837, 844 (1991).
        “The test in every case involving the propriety of an instruction on a lesser grade of an offense is not whether the jury could convict defendant of the lesser crime, but whether the State's evidence is positive as to each element of the crime charged and whether there is any conflicting evidence relating to any of these elements.”

State v. Cummings, 346 N.C. 291, 326-27, 488 S.E.2d 550, 571 (1997) (quoting State v. Leroux, 326 N.C. 368, 378, 390 S.E.2d 314, 322 (1990)). Robbery with a deadly weapon is defined as “(1) the unlawful attempt to take or taking of personal property from a person or presence, (2) by use or threatened use of a firearm or other dangerous weapon, (3) whereby the life of the person is threatened or endangered.” State v. Gay, 151 N.C. App. 530, 532, 566 S.E.2d 121, 124 (2002) (emphasis omitted).
    Here, defendant's use of the knife in the robbery is uncontroverted. Both Guffey and Whitaker testified that defendant placed a knife up to Guffey's chest and grabbed the $2,800.00 from Guffey. Guffey testified he felt “life-threatened.” Defendant offered no evidence to show that he did not use a knife during the commission of the robbery. Accordingly, we conclude that the State introduced evidence of defendant's guilt of armed robbery and that-the trial court properly refused to instruct the jury on the lesser included offenses of common law robbery or larceny from the person.
    No error.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

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