STATE OF NORTH CAROLINA
v. Wake County<
br>
No. 01CRS113031
SAIYDIYN A. MUHAMMAD
Attorney General Roy Cooper, by Assistant Attorney General
Jeffrey B. Parsons, for the State.
Osborn & Tyndall, P.L.L.C., by Amos Granger Tyndall, for
defendant appellant.
McCULLOUGH, Judge.
Defendant Saiydiyn A. Muhammad was charged with robbery with
a dangerous weapon. At trial, the State's evidence tended to show
that on or about 7 November 2001, defendant entered the Swifty
Serve Convenience Store in Apex, North Carolina, and asked the
clerk on duty, Francesca Bell-Pitts, for a job application. Ms.
Bell-Pitts, who was also the store's assistant manager, asked
defendant to wait until she checked out customers in the store
because she had to go to the rear of the store to get a copy of the
application. After ringing up her last customer, Ms. Bell-Pitts
was leaving the area behind the cash register to make a copy of the
application, when defendant blocked her way and told her he did notwant an application after all. Defendant stated in a serious tone
that he wanted the cash. Ms. Bell-Pitts stepped back. In response,
defendant said, “no, look,” and pointed down to a gun in his pants.
Surprised, Ms. Bell-Pitts backed up in the direction of the cash
register and defendant followed her. When both Ms. Bell-Pitts and
defendant were behind the cash register, defendant removed an
envelope of money from the top of the store's safe and asked Ms.
Bell-Pitts for everything in the cash register. Defendant never
removed the gun from his pants, but did keep his hand on the gun
until Ms. Bell-Pitts handed him the money from the cash register in
a bag. After instructing Ms. Bell-Pitts not to move, defendant
exited the store and fled the scene.
Detective Robert Towell of the Apex Police Department was
called to the Swifty Serve Convenience Store to investigate the
robbery. Detective Towell testified that he interviewed Ms. Bell-
Pitts upon his arrival, and found her to be upset. The victim's
statement to Detective Towell was in conformity with her testimony
at trial. Detective Towell also noted that he retrieved and viewed
with Ms. Bell-Pitts the store's surveillance video, which had
captured the entire robbery. The videotape, however, contained no
audio and did not show the gun allegedly utilized by defendant in
the robbery. Ms. Bell-Pitts subsequently identified defendant out
of a photographic line-up as the person who committed the 7
November 2001 robbery.
Defendant was subsequently arrested in Orange County and
brought back to Wake County to be served with two robbery warrants. After being read his Miranda rights, defendant waived them and gave
a statement about the robberies for which he had been arrested.
Specifically, defendant admitted to having robbed the Swifty Serve
Convenience Store in Apex. He told the interviewing officer,
Detective Cathy Wood of the Garner Police Department, that he got
“a couple hundred,” and that he had a gun in the waistband of his
pants but he was not sure if the store clerk actually saw the gun.
Defendant told Detective Wood that he threw “his guns” out of a car
window while traveling on Highway 15-501.
Defendant did not present any evidence at trial. A jury
subsequently found defendant guilty as charged, and the trial court
entered judgment on the guilty verdict, sentencing defendant to a
presumptive term of 117-150 months' imprisonment. Defendant
appeals.
In his sole assignment of error, defendant argues that the
trial court erred in denying his request to instruct the jury on
the lesser included offense of larceny. It is well settled that
the trial court need only submit an instruction to the jury on a
lesser included offense when there is evidence from which a jury
could find the defendant committed the lesser included offense.
State v. Cummings, 346 N.C. 291, 325, 488 S.E.2d 550, 570 (1997),
cert. denied, 522 U.S. 1092, 139 L. Ed. 2d 873 (1998). In
Cummings, our Supreme Court explained,
“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 toeach element of the crime charged and whether
there is any conflicting evidence relating to
any of these elements.”
Id. at 326-27, 488 S.E.2d at 571 (quoting State v. Leroux, 326 N.C.
368, 378, 390 S.E.2d 314, 322, cert. denied, 498 U.S. 871, 112 L.
Ed. 2d 155 (1990)). “[T]he trial judge is not required to submit
lesser included offenses for a jury's consideration when the
State's evidence is positive as to each and every element of the
crime charged and there is no conflicting evidence related to any
element of the crime charged.” State v. Washington, 142 N.C. App.
657, 660, 544 S.E.2d 249, 251, appeal dismissed, disc. review
denied, 353 N.C. 532, 550 S.E.2d 165 (2001).
Both common law robbery and larceny are lesser included
offenses of robbery with a dangerous weapon. Cummings, 346 N.C. at
325-27, 488 S.E.2d at 570-71. Robbery with a dangerous weapon is
the unlawful taking or an attempted taking of the personal property
from the person or in the presence of another, by use or threatened
use of a firearm or other dangerous weapon, where the life of a
person is endangered or threatened. N.C. Gen. Stat. § 14-87(a)
(2001). Common law robbery has been defined as “the non-consensual
taking of money or personal property from another by means of
violence or fear.” State v. White, 142 N.C. App. 201, 204, 542
S.E.2d 265, 267 (2001). Larceny is “the taking and carrying away
of the property of another without the owner's consent and with the
intent to permanently deprive the owner of his property.”
Washington, 142 N.C. App. at 660, 544 S.E.2d at 251.
In State v. Frazier, 150 N.C. App. 416, 562 S.E.2d 910 (2002),this Court noted:
The primary distinction between armed robbery
and common law robbery is that “the former is
accomplished by the use or threatened use of a
dangerous weapon whereby the life of a person
is endangered or threatened.” State v.
Peacock, 313 N.C. 554, 562, 330 S.E.2d 190,
195 (1985). The use or threatened use of a
dangerous weapon, however, is not an essential
element of common law robbery. See Cummings,
346 N.C. at 325-26, 488 S.E.2d at 570.
Id. at 419, 562 S.E.2d at 913. In discussing the difference
between common law robbery and larceny, the White Court explained
that larceny does not require that the victim be put in fear by the
perpetrator, as does the offense of common law robbery.
Washington, 142 N.C. App. at 204, 542 S.E.2d at 267.
In the instant case, the trial court did instruct the jury on
the lesser included offense of common law robbery, but refused
defendant's request for an instruction on larceny. While defendant
argues to the contrary, we conclude that this decision was proper.
The evidence tended to show that the victim saw the butt of a
gun in defendant's waistband during the 7 November 2001 convenience
store robbery. Moreover, the victim testified that defendant
pointed to the gun when demanding that she give him the money out
of the register. The victim further testified that she was
surprised by defendant's demands and that his tone of voice was
alarming. The victim detailed defendant's actions in blocking her
exit from the area around the cash register and his entry into the
area behind the cash register where he took the money from her.
The store's surveillance video supported the victim's statementregarding defendant preventing her exit from the area near the cash
register and his close proximity to the victim while he took the
money from her. Significantly, in a statement made to Detective
Wood which was admitted during the State's case-in-chief, defendant
conceded that he possessed a gun during the 7 November 2001 robbery
of the Swifty Serve Convenience Store. However, defendant stated
that he was not sure if the victim saw the gun.
Although the store's surveillance videotape does not show the
gun that defendant admitted to having in his possession when he
robbed the store, that fact alone does not support an instruction
on larceny. Here, the victim's testimony and the surveillance
video support the element of violence or putting the victim in fear
and negate defendant's argument that he was entitled to an
instruction on larceny. Based upon this evidence, we conclude that
the trial court properly instructed the jury on the offenses of
robbery with a dangerous weapon and common law robbery, and did not
err in denying defendant's request for an instruction on larceny.
Accordingly, this assignment of error is overruled.
Defendant has failed to bring forth his remaining assignments
of error, and they are therefore deemed abandoned. See N.C.R. App.
P. 28(b)(6) (2003). In light of the forgoing, we hold that
defendant received a fair trial, free from prejudicial error.
No error.
Judges MARTIN and CALABRIA concur.
Report per Rule 30(e).
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