State v Newton, (02-1312) 09/16/2003

Appeal by defendant from judgment entered 12 July 2001 by Judge William Z. Wood, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 20 August 2003.

Attorney General Roy Cooper, by Assistant Attorney General Kristine L. Lanning, for the State.

Everett & Hite, L.L.P., by Stephen D. Kiess, for defendant.

    LEVINSON, Judge.

    Defendant (Julius Newton) appeals from convictions of attempted robbery with a dangerous weapon and attempted common law robbery. For the reasons discussed below, we conclude the defendant had a fair trial, free of prejudicial error.
    The State's evidence tended to show in relevant part the following: In November, 2000, Matt Limkemann and Samer Nazzal were employed at a gravel pit in Guilford County, North Carolina. On the evening of 7 November 2000, they stayed after work to “play[] with some remote controlled [model] cars” in the gravel pit. Around 9:00 or 10:00 p.m., Limkemann noticed the defendant emerge from a wooded area, accompanied by two other young men. The three men, each wearing a ski mask or other face covering, startedtowards Limkemann and Nazzal in the darkness. Limkemann initially assumed they were friends paying a visit, but when he turned around for another look, Limkemann saw that defendant “was coming up and raring back” with a stick. Limkemann ducked down to avoid a blow to the head and heard defendant demand their “stuff,” just before he “caught [Limkemann] across the back.” As Limkemann began falling towards the ground, defendant raised the stick to strike him again. However, before defendant could inflict a second blow, Nazzal blocked the defendant's swing and defendant released the stick. Defendant ran off, pursued by Nazzal, who successfully caught defendant and restrained him until law enforcement officers arrived. Meanwhile, the other two men fled into the dark and escaped capture. Limkemann suffered a bruise on his back, but was otherwise uninjured.
    Officer Springs and Detective Landers, both of the Greensboro City Police, each testified at trial regarding statements obtained from defendant after his arrest. In his statements, which essentially mirrored Nazzal's and Limkemann's testimony, defendant explained that the robbery was undertaken to repay a debt owed to a man identified as “Tyrone.” Defendant also acknowledged at trial that he committed the attempted robbery, accompanied by Tyrone and a third man identified as “James.” However, he denied owing money to Tyrone, and testified that he engaged in the attempted robbery because he “just wasn't thinking.”
    Defendant was convicted of attempted robbery with a dangerous weapon of Limkemann, and attempted common law robbery of Nazzal. From these convictions, defendant appeals.

    Defendant raises two issues on appeal. He argues first that the trial court erred by submitting the charge of attempted robbery with a dangerous weapon to the jury. He contends that the “slap on the back of Mr. Limkemann with a wooden closet rod cannot constitute attempted robbery with a dangerous weapon.” Defendant asserts that “where no gun or knife was used,” North Carolina appellate courts have “generally” upheld convictions of robbery with a dangerous weapon only when the defendant inflicts “blows to the head causing substantial injuries.” On this basis, defendant argues that, because Limkemann was not seriously injured, it was error to allow the jury to convict defendant of attempted robbery with a dangerous weapon. We disagree.
    Preliminarily, we note that although defendant frames his argument as an instructional error, he does not allege that the instruction as given was improper, but that any instruction on attempted robbery with a dangerous weapon was error on the facts of this case. Thus, the gravamen of defendant's argument is that the trial court erred by failing to dismiss the charge of attempted robbery with a dangerous weapon. Accordingly, our review is focused on the propriety of submitting this offense to the jury.
    The 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). See N.C.G.S. § 14-87(a) (2001).
    In the instant case, defendant was convicted of attempted robbery with a dangerous weapon.
        The elements of an attempt to commit any crime are: (1) the intent to commit the substantive offense, and (2) an overt act done for that purpose which goes beyond mere preparation, but (3) falls short of the completed offense. “An attempted robbery with a dangerous weapon occurs when a person, with the specific intent to unlawfully deprive another of personal property by endangering or threatening his life with a dangerous weapon, does some overt act calculated to bring about this result.”

State v. Miller, 344 N.C. 658, 667-68, 477 S.E.2d 915, 921 (1996) (quoting State v. Allison, 319 N.C. 92, 96, 352 S.E.2d 420, 422 (1987)). Defendant does not dispute that he engaged in an unlawful attempt to “take personal property from another.” However, he contends that the stick which he employed cannot be considered a dangerous weapon.
    “A dangerous or deadly weapon 'is generally defined as any article, instrument or substance which is likely to produce death or great bodily harm.'” State v. Torain, 316 N.C. 111, 120, 340 S.E.2d 465, 470 (quoting State v. Sturdivant, 304 N.C. 293, 301, 283 S.E.2d 719, 725 (1981)), cert. denied, 479 U.S. 836, 93 L. Ed. 2d 77 (1986). “'The deadly character of the weapon depends sometimes more upon the manner of its use, and the condition of the person assaulted, than upon the intrinsic character of the weapon itself.'” State v. Lowe, 150 N.C. App. 682, 686, 564 S.E.2d 313,316 (2002) (quoting State v. Smith, 187 N.C. 469, 470, 121 S.E. 737 (1924)). “In determining whether evidence of the use of a particular instrument constitutes evidence of use of 'any firearms or other dangerous weapon, implement or means' within the prohibition of G.S. § 14-87, the determinative question is whether the evidence was sufficient to support a jury finding that a person's life was in fact endangered or threatened [by the use of that instrument].” State v. Peacock, 313 N.C. 554, 563, 330 S.E.2d 190, 195-96 (1985) (quoting State v. Alston, 305 N.C. 647, 650, 290 S.E.2d 614, 616 (1982)) (emphasis added). Moreover:
        If there is a conflict in the evidence regarding either the nature of the weapon or the manner of its use, with some of the evidence tending to show that the weapon used or as used would not likely produce death or great bodily harm and other evidence tending to show the contrary, the jury must, of course, resolve the conflict.

Lowe, 150 N.C. App. at 686, 564 S.E.2d at 316.
    In his appeal, defendant emphasizes that (1) the victims were not significantly smaller or more vulnerable than defendant, and (2) Limkemann escaped serious injury. However, neither the relative size and strength of the parties, nor the injuries inflicted by an instrumentality, are determinative on the issue of whether the item may be considered a dangerous weapon. Defendant cites no cases to support the proposition that serious injury must be inflicted by a weapon in order for it to be considered dangerous or deadly, and our own review reveals none. It is not the extent of a victim's injuries, but the weapon's potential for causing serious injury under the factual circumstances of the case thatdetermines whether an object may be considered a dangerous weapon. See State v. Smallwood, 78 N.C. App. 365, 368, 337 S.E.2d 143, 144 (1985) (noting that evidence presented at trial “'determines whether a certain kind of knife is properly characterized as a lethal device as a matter of law or whether its nature and manner of use merely raises a factual issue about its potential for producing death'”) (quoting Sturdivant, 304 N.C. at 310, 283 S.E.2d at 726).
    Indeed, North Carolina appellate cases have consistently held that an ordinary object may become a dangerous weapon if used in a manner likely to cause death or serious bodily injury. See, e.g., Sturdivant, 304 N.C. at 301 n.2, 283 S.E.2d at 725 n.2 (“No item, no matter how small or commonplace, can be safely disregarded for its capacity to cause serious bodily injury or death when it is wielded with the requisite evil intent and force”) (collecting cases finding, e.g., brooms, nail clippers, baseball bats, plastic bags, soda bottles, and rocks to be deadly weapons under circumstances of their use); Smith, 187 N.C. at 470, 121 S.E. at 737 (“A pistol or a gun is a deadly weapon and we apprehend a baseball bat should be similarly denominated if viciously used”) (citation omitted).
    In the present case, we have examined State's Exhibit 1, a substantial wood dowel over an inch in diameter and 35½ inches in length. Although it is fortuitous that Limkemann was not seriously injured by defendant's attack with this closet rod, the evidence showed that (1) Limkemann glanced over his shoulder in time to duckdown and avoid the full impact of a blow aimed towards his head, and (2) after defendant hit Limkemann once, he was drawing back to strike him a second time when Nazzal intervened. Viewing the evidence in the light most favorable to the State, we conclude that, as wielded and utilized by defendant, the closet rod had the potential to cause death or serious bodily injury. Accordingly, the trial court did not err by submitting the charge of attempted robbery with a dangerous weapon to the jury. This assignment of error is overruled.

    Defendant next argues that the trial court erred by denying his motion to dismiss the charges against him as regards attempted robbery of Nazzal. He argues that there was no evidence that he attempted to rob Nazzal, but only Limkemann. Defendant also argues that the evidence shows only an attempt to rob the gravel pit business, but not Nazzal or Limkemann as individuals. We disagree.
    Initially, we conclude that defendant's contention, that the evidence showed he was attempting to rob the gravel pit business rather than the individual victims, must be rejected. Defendant cites no evidence that he was in or near the office, that he demanded entry into the office, knew of any valuables or money possessed by the business, or had planned to rob the business. In fact, defendant's own testimony was that “this guy, A. J. said to rob one of his friends, I guess.” This argument is without merit and is overruled.     We next consider defendant's contention that the evidence was sufficient to show only an attempt to rob Limkemann, but not Nazzal. Defendant asserts that his conviction of attempted robbery of Nazzal is improper because he did not strike Nazzal or make a personalized demand for Nazzal's property. We again disagree.
    At the close of the State's evidence, and again at the end of all the evidence, defendant moved to dismiss the charge of attempted robbery of Nazzal, which motions were denied. This Court has held that:
        A motion to dismiss is properly denied if substantial evidence is presented of each essential element of the offense. In a criminal case, “substantial evidence is evidence from which any rational trier of fact could find the fact to be proved beyond a reasonable doubt.” We review the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference arising from the evidence.

State v. Cofield, 129 N.C. App. 268, 280, 498 S.E.2d 823, 832 (1998) (quoting State v. McDowell, 329 N.C. 363, 389, 407 S.E.2d 200, 215 (1991)).
    As discussed above, “[t]he two elements of an attempt to commit a crime are: first, the intent to commit the substantive offense; and, second, an overt act done for that purpose which goes beyond mere preparation but falls short of the completed offense.” State v. Smith, 300 N.C. 71, 79, 265 S.E.2d 164, 169-70 (1980). Thus, attempted robbery consists of an intent to commit robbery, accompanied by overt acts undertaken in furtherance of the crime. “The preparations consist in devising or arranging the means or measures necessary for the commission of the offense. The attemptis the direct movement towards the commission after the preparations are made.” State v. Addor, 183 N.C. 687, 690, 110 S.E. 650, 651 (1922). Compare, e.g., State v. Harris, 71 N.C. App. 141, 321 S.E.2d 480 (1984) (evidence that defendant ordered victim to turn out his pockets while displaying gun sufficient to support conviction of attempted robbery with a dangerous weapon), and State v. Parker, 66 N.C. App. 355, 311 S.E.2d 327 (1984) (loitering outside store in possession of gun insufficient to show attempted robbery of store). Further:
        the rule is well-established in this state that “[i]f there is any evidence tending to prove the fact of guilt or which reasonably conduces to this conclusion as a fairly logical and legitimate deduction, and not such as merely raises a suspicion or conjecture of guilt, it is for the jury to say whether they are convinced beyond a reasonable doubt of the fact of guilt.”

State v. Powell, 6 N.C. App. 8, 11-12, 169 S.E.2d 210, 213 (1969) (quoting 2 Strong, N.C. Index 2d, Criminal Law, § 106, p. 654).
    In the case sub judice the State's evidence tended to show that defendant (1) owed a debt to one of his accomplices, who was demanding immediate repayment; (2) obtained a ski mask to conceal his face and a closet rod to use as a weapon; (3) approached both victims from behind under cover of darkness; (4) demanded that they “[g]ive me your stuff”; (5) struck Limkemann with the rod, catching him on the back rather than the head only because Limkemann ducked at the last second; and (6) raised the stick for a second blow when he was disarmed by Nazzal. We conclude that this is ample evidence of overt actions in furtherance of the planned robbery.     We also reject defendant's assertion that the trial evidence established that defendant's attempted robbery was specifically restricted to Limkemann. Taken in the light most favorable to the State, we note that the word “your” in the statement “give me your stuff” may carry either a singular or plural meaning. Moreover, Limkemann and Nazzal were near enough to each other that both were exposed to attack from the three would-be robbers. See State v. Thomas, 85 N.C. App. 319, 321-22, 354 S.E.2d 891, 893 (1987) (where husband and wife were close together during robbery, this Court upholds robbery convictions of both, noting that “[d]efendant's assault of [husband] in order to take his property spoke louder than any words of threat could have spoken to [wife]”). No evidence was presented that defendant knew Limkemann, knew what “stuff” he might possess, had any reason to single out Limkemann, or any basis upon which to distinguish the two men. Nor does the fact that Nazzal had the presence of mind to disarm defendant constitute evidence that defendant was not attempting to commit a robbery against Nazzal.
    We conclude the evidence was sufficient to submit the charge of attempted robbery of Nazzal to the jury. This assignment of error is overruled. We further conclude, for the reasons discussed above, that defendant's trial was free of prejudicial error.
    No error.
    Judges MARTIN and McCULLOUGH concur.
    Report per Rule 30(e).

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