An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1052


Filed: 6 May 2003


         v.                                Wake County< br>                                         No. 01CRS113031

    Appeal by defendant from judgment entered 11 April 2002 by Judge David Q. LaBarre in Wake County Superior Court. Heard in the Court of Appeals 28 April 2003.

    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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