STATE OF NORTH CAROLINA
v
.
Wake County
No. 02 CRS 13946
DONTRAIL MARKISE GILMORE,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Douglas W. Corkhill, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Anne M. Gomez, for defendant-appellant.
EAGLES, Chief Judge.
Defendant was indicted on one count of robbery with a
dangerous weapon and one count of felony speeding to elude arrest.
Defendant pled guilty to the felony speeding to elude arrest charge
but pled not guilty on the count of robbery with a dangerous
weapon. At trial, defendant was found guilty of the lesser
included offense of common law robbery. Defendant appeals.
Late in the evening of 17 February 2002, Latisha Garrett
stopped at a pay phone on New Bern Avenue, near the intersection
with Tarboro Road, in Raleigh. Garrett was driving a white 1998
BMW automobile that she had borrowed from a friend for the evening.
Garrett testified that while using the phone she noticed a man walkpast her on the street. She then heard a male voice telling her to
be quiet from behind her. Garrett turned to find the man who had
just walked past her pointing a gun at her. The man got into the
BMW, which Garrett had left running. Garrett asked the man if she
could have her purse from the car, but he drove off.
After the man left in the car, Garrett called the Raleigh
Police Department and described the car and the man. Garrett did
not know the license plate number, but the officer was able to find
the exact license plate number by conducting a computer search that
matched the owner's name to vehicles registered to that name.
Sometime around one o'clock on the morning of 18 February 2002, the
description was released over the police computers and radio.
Officer S.K. Meyers of the Raleigh Police Department received the
report while at Tiffany's, a club on the corner of Falls of the
Neuse Road and Sandy Forks Road in north Raleigh. At that time he
noticed a white BMW matching the description from the report
driving around an apartment complex across the street. Officer
Myers followed the car and confirmed that the license plate number
matched the license plate number given in the report.
Myers and other officers attempted to make a traffic stop, but
the car increased its speed, at one point exceeding 100 miles per
hour. The high speed chase continued for approximately two miles
on Falls of the Neuse Road. The BMW stopped when it collided with
a police car. The driver of the vehicle got out of the car and ran
into a field. After being pursued on foot, the driver stopped and
was arrested. In searching the area around where the man wasarrested, the officers found a small handgun in two pieces about
eight to ten yards from where the man stopped. The gun was found
without its firing pin. The absence of a firing pin would render
the gun inoperable. Garrett identified the defendant in a photo
array as the man who took the BMW from her.
Defendant pled guilty to felony speeding to elude arrest and
at trial was found guilty of common law robbery. On appeal,
defendant argues: (1) the trial court erred in not submitting the
charge of larceny from the person to the jury; (2) the trial court
erred in sustaining the State's objection to parts of defendant's
testimony regarding his intoxication; and (3) the trial court erred
in entering judgment on the verdict of common law robbery because
the indictment was insufficient to allege this offense. We find no
error.
Defendant argues that the trial court erred in submitting to
the jury only common law robbery, and not the lesser included
offense of larceny from the person. Common law robbery is an open
and violent larceny from the person of another, of goods or money
against his will by violence or by putting him in fear. State v.
Pickard, 143 N.C. App. 485, 490, 547 S.E.2d 102, 106, disc. review
denied, 354 N.C. 73, 553 S.E.2d 210 (2001). Larceny from the
person is a lesser included offense of common law robbery. State
v. White, 322 N.C. 506, 514, 369 S.E.2d 813, 817 (1988). The
difference between the two charges is that larceny from the person
does not require that the victim be put in fear. Pickard at 491,
547 S.E.2d at 106. Defendant argues that the charge of larcenyfrom the person should have been included in the jury charge
because Garrett did not testify that she was afraid.
Defendant is only entitled to have a lesser included offense
submitted to the jury when there is evidence to support it. “If
the State's evidence is sufficient to fully satisfy its burden of
proving each element of the greater offense and there is no
evidence to negate these elements other than the defendant's denial
that he committed the offense, the defendant is not entitled to an
instruction on a lesser offense.” State v. Johnson, 317 N.C. 193,
205, 344 S.E.2d 775, 782 (1986). The defendant is incorrect in
asserting that there was not evidence to support that Garrett was
put in fear. In defendant's cross-examination of Garrett, his
attorney asked:
Question: Okay. Now, during the time all this
stuff was going on, are you -- were you
afraid?
Answer: Yes, but I kept calm.
Question: I'm sorry. What did you say?
Answer: I said yes, but I kept calm.
Because there was sufficient evidence to support each element of
the greater offense of common law robbery, defendant was not
entitled to an instruction on larceny from the person. This
assignment of error fails.
Defendant also argues that the trial court erred in sustaining
the State's objection and striking defendant's testimony on direct
examination that he was involuntarily intoxicated on the night of
the incident. Defendant testified that on the night of theincident that he drank two beers in about thirty minutes. Defense
counsel then asked defendant whether he had “done any drugs” that
night. The trial court sustained the State's objection and allowed
their motion to strike the defendant's answer, “I didn't know that
drugs was slipped to me, but they were --.” Defendant argues that
he should have been allowed to introduce evidence of intoxication
by involuntarily ingesting drugs.
Involuntary intoxication is a complete defense to a crime.
State v. Bunn, 283 N.C. 444, 457, 196 S.E.2d 777, 786 (1973). The
jury is entitled to consider evidence of intoxication in deciding
whether the State has proved the specific element of a crime beyond
a reasonable doubt, even when the defendant does not meet the
burden of production to receive an instruction to the jury on
intoxication. State v. Williams, 343 N.C. 345, 365, 471 S.E.2d
379, 390 (1996), cert. denied sub nom., Williams v. North Carolina,
519 U.S. 1061, 136 L. Ed. 2d 618 (1997). Defendant is basing his
claim of involuntary intoxication exclusively on how he normally
felt after drinking two beers as compared to how he felt that
night. He testified on cross-examination and redirect examination
that the evening was a “blur after the alcohol” and that he felt
different from the “regular way” that he felt. Defendant did not
even request an instruction on involuntary intoxication, insisting
instead that his evidence met the burden of production for an
instruction on voluntary intoxication. Because he offered no other
evidence that would support his claim of having been involuntarily
drugged that night, defendant's claim of involuntary intoxicationis purely speculative and inadmissible. We find no error in the
exclusion of this testimony.
Even assuming arguendo that the testimony was improperly
excluded, we hold there was no showing of prejudice and no showing
of any reasonable probability of a different result. Under N.C.
Gen. Stat. § 15A-1443(a), the defendant must establish how he is
prejudiced by errors relating to rights arising other than under
the Constitution of the United States. N.C. Gen. Stat. § 15A-
1443(a) (2003). Given the detail and clarity with which defendant
was able to testify about his version of events on the night in
question, defendant has not shown a reasonable probability that a
different result would have been reached if the stricken testimony
had been included. Accordingly, we hold that any error was
harmless beyond a reasonable doubt.
Defendant argues that the indictment for robbery with a
dangerous weapon was insufficient to allege common law robbery.
Defendant did not challenge the indictment at trial. “However,
where an indictment is alleged to be invalid on its face, thereby
depriving the trial court of its jurisdiction, a challenge to that
indictment may be made at any time, even if it was not contested in
the trial court.” State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d
326, 341, cert. denied sub nom., Wallace v. North Carolina, 531
U.S. 1018, 148 L. Ed. 2d 498 (2000). Defendant contends that the
language of the indictment for robbery with a dangerous weapon was
insufficient to allege the specific intent element for common law
robbery. We disagree. “'Felonious taking' is an essential element of the crime of
armed robbery, and it means 'a taking with the felonious intent on
the part of the taker to deprive the owner of his property
permanently and to convert it to the use of the taker.'” State v.
Harmon, 21 N.C. App. 508, 510, 204 S.E.2d 883, 885 (quoting State
v. Mundy, 265 N.C. 528, 530, 144 S.E.2d 572, 574 (1965)), cert.
denied, 285 N.C. 593, 205 S.E.2d 724 (1974). Because the
indictment here alleged that “the defendant named above unlawfully,
willfully and feloniously did steal, take, and carry away . . .,”
the indictment adequately alleged the element of specific intent.
Accordingly, the indictment for robbery with a dangerous weapon was
sufficient to support a conviction of the lesser included offense
of common law robbery. See State v. Barksdale, 16 N.C. App. 559,
561, 192 S.E.2d 659, 661 (1972), cert. denied, 282 N.C. 673, 194
S.E.2d 152 (1973). Defendant's assignment of error fails.
Defendant failed to set out his remaining assignments of error
in his brief. Because he has neither cited any authority nor stated
any reason or argument in support of those assignments of error,
they are deemed abandoned. N.C. R. App. P. 28(b)(6).
No error.
Judges MARTIN and LEVINSON concur.
Report per Rule 30(e).
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