An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1598

NORTH CAROLINA COURT OF APPEALS

Filed: 6 January 2004

STATE OF NORTH CAROLINA

v .                         Forsyth County
                            No. 01 CRS 5702
DARIAN HOLMAN

    Appeal by defendant from judgment dated 27 June 2002 by Judge James M. Webb in Superior Court, Forsyth County. Heard in the Court of Appeals 9 October 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Steven A. Armstrong, for the State.

    Brian Michael Aus for defendant-appellant.

    McGEE, Judge.


    Darian Holman (defendant) was convicted on 27 June 2002 of robbery with a dangerous weapon in violation of N.C. Gen. Stat. § 14-87. The trial court entered judgment, finding defendant to have a prior record level II, and sentenced defendant to a minimum term of seventy-five months and a maximum term of ninety-nine months. Defendant appeals.
    The State's evidence at trial tended to show that on 18 December 2000, defendant and Frye Dunn (Dunn) were visiting the home of Ralph Meadows, Jr. (Meadows) in Winston-Salem, North Carolina. Defendant told Meadows and Dunn he wanted to purchase a gun. Meadows showed defendant a nine millimeter handgun which belonged to Meadows' father. Defendant, Meadows, and Dunn weregoing to Carver High School to watch Jarick Boxley (Boxley) play in a basketball game and Meadows allowed defendant to take his father's handgun with him. After the game, defendant, Meadows, and Boxley went to Boxley's house and watched television. Shortly thereafter, Justin Simmons (Simmons) came to Boxley's house and the four men rode in Simmons' car to a bowling alley. Simmons drove, Boxley sat in the front passenger seat, Meadows sat behind Simmons, and defendant sat behind Boxley. While parked in the bowling alley parking lot, defendant mentioned robbing the people in the car next to them and the others agreed.
    Meadows was given a fake gun from the glove compartment of Simmons' car, and defendant used the nine millimeter handgun he had taken from Meadows' home. Meadows rolled down his rear window and pointed the fake gun at Billy Jackson (Jackson) as Jackson exited the car which was parked next to the four men. At the same time, defendant leaned over towards Meadows and pointed the gun he was holding at Jackson. Jackson saw both Meadows and defendant in the back seat, but only saw the gun Meadows was holding. Both Meadows and defendant told Jackson to give them his money. Jackson reached into his back pocket and threw fifty dollars at Meadows and defendant. Simmons then drove back to Boxley's house. Meadows and defendant kept twenty dollars each; Simmons and Boxley kept five dollars each.
    Jackson looked at the license plate number as Simmons was driving away and gave the number to police when they arrived. Within ninety minutes of the robbery report, Deputy Sheriff JeffreyDecker of the Forsyth County Sheriff's Department saw the car in a store parking lot and called for assistance. The deputies entered the store and arrested defendant, Simmons, Meadows, and Boxley. Sergeant Ronald Reeves (Sergeant Reeves) searched Simmons' car and saw a cap gun in plain view on the right front floorboard. He also removed a loaded nine millimeter handgun from under the front passenger seat and a starter pistol from the rear armrest. Officer C.J. Dabb brought Jackson to the store, where Jackson identified three of the four men involved in the robbery. The fourth person was not presented for identification because he was a juvenile.
    We first note defendant has failed to present an argument in support of assignments of error numbers two, three, five and six and they are deemed abandoned pursuant to N.C.R. App. P. 28(b)(6).     Defendant first argues that the trial court erred by denying his request for an instruction on common law robbery and by failing to instruct the jury as to the lesser included offense of common law robbery. "[A] lesser included offense is one in which the greater offense contains all of the essential elements of the lesser offense. . . . Robbery with a dangerous weapon contains all of the essential elements of common law robbery. Thus, common law robbery is a lesser included offense." State v. Owens, 73 N.C. App. 631, 633, 327 S.E.2d 42, 44, disc. review denied, 314 N.C. 120, 332 S.E.2d 488 (1985). "It is well settled that '[a] trial court must give instructions on all lesser-included offenses that are supported by the evidence[.]'" State v. Ray, 149 N.C. App. 137, 145-46, 560 S.E.2d 211, 217 (2002), aff'd, 356 N.C. 665, 576S.E.2d 327 (2003) (quoting State v. Lawrence, 352 N.C. 1, 19, 530 S.E.2d 807, 819 (2000), cert. denied, 531 U.S. 1083, 148 L. Ed. 2d 684 (2001)). "Failure to do so amounts to 'reversible error that cannot be cured by a verdict finding the defendant guilty of the greater offense.'" Ray, 149 N.C. App. at 146, 560 S.E.2d at 217 (quoting Lawrence, 352 N.C. at 19, 530 S.E.2d at 819). "The trial court may decline to submit the lesser offense to the jury if 'the State's evidence is positive as to each element of the crime charged' and there is no 'conflicting evidence relating to any of [the] elements.'" Ray, 149 N.C. App. at 146, 560 S.E.2d at 217 (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)).
    The elements of robbery with a dangerous weapon are "(1) an unlawful taking or an attempt to take the personal property from the person or presence of another, (2) by use or threatened use of a firearm or other dangerous weapon, (3) whereby the life of another is either endangered or threatened." State v. Gainey, 355 N.C. 73, 89, 558 S.E.2d 463, 474, cert. denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002). Defendant contends there is conflicting evidence as to the second element, which warrants an instruction on the lesser included offense. For the reasons stated below, we disagree.
    Defendant appears to argue that, because the gun Jackson saw Meadows use to effectuate the robbery was a fake gun, the trial court erred in not instructing the jury on common law robbery. However, defendant fails to show how Jackson's seeing only the fakegun used by Meadows, when an operable gun was used by defendant, requires an instruction on common law robbery. Defendant correctly relies on State v. Frazier, 150 N.C. App. 416, 562 S.E.2d 910 (2002), State v. Fleming, 148 N.C. App. 16, 557 S.E.2d 560 (2001), and State v. Joyner, 312 N.C. 779, 324 S.E.2d 841 (1985) for the proposition that when an inoperable gun is used as the weapon in a robbery, an instruction on common law robbery is required. These cases hold that an instruction on common law robbery must be given when uncertainty exists as to whether or not a gun was functional during a robbery. These cases are distinguishable from the case before us because in all three cases, only one weapon was involved and there was conflicting evidence as to whether that one weapon was operational. In contrast, in the case before us, two guns were involved and conflicting evidence as to whether the gun was operational pertained only to Meadows' gun. Although Meadows' gun was not operational, the gun used by defendant was functional and capable of endangering Jackson's life.
    The facts in the present case are more similar to those in State v. Thompson, 37 N.C. App. 651, 247 S.E.2d 235 (1978). In Thompson, two men entered an apartment complex office and used guns to rob the victims therein. One witness was unsure whether or not one of the guns was real. Since this uncertainty dealt with only one of the two guns, our Court upheld the trial court's refusal to instruct the jury on common law robbery. As in Thompson, we conclude that the trial court did not err in not instructing the jury on common law robbery.     With respect to armed robbery, "[t]he gravamen of the offense is the endangering or threatening of human life by the use or threatened use of firearms or other dangerous weapons in the perpetration of or even in the attempt to perpetrate the crime of robbery." State v. Ballard, 280 N.C. 479, 485, 186 S.E.2d 372, 375 (1972). In the case before us, Jackson's life was threatened by defendant's use of a firearm. No evidence was presented showing that the gun defendant used was not functioning. Although Jackson did not see the weapon, this fact is not determinative. Others in the car testified that defendant was leaning towards Jackson and pointing the nine millimeter handgun at him, while defendant and Meadows demanded money from Jackson. Sergeant Reeves also testified that he removed a black nine millimeter handgun from under the front passenger seat. This evidence is sufficient to establish that defendant used a dangerous firearm to threaten the life of Jackson.
     Defendant next argues that the trial court erred in denying his motion to dismiss the charge of robbery with a dangerous weapon for insufficiency of the evidence. "Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied." State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). "Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to supporta conclusion.'" State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991) (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)). "The evidence must be viewed in the light most favorable to the State, and the State must receive every reasonable inference to be drawn from the evidence. Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal." State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996) (citations omitted).
    Viewing the evidence in the light most favorable to the State, there is substantial evidence of each of the elements of robbery with a dangerous weapon, being "(1) an unlawful taking or an attempt to take the personal property from the person or presence of another, (2) by use or threatened use of a firearm or other dangerous weapon, (3) whereby the life of another is either endangered or threatened." Gainey, 355 N.C. at 89, 558 S.E.2d at 474. The taking element was established by eyewitness testimony of those present who described how Meadows and defendant demanded and obtained money from Jackson as he exited the car. As to the remaining elements, Meadows and Boxley both testified that defendant was pointing a firearm, the nine millimeter gun, at Jackson during this encounter. Further, there was no evidence that the gun used by defendant was not in working order. The trial court did not err in denying defendant's motion to dismiss for insufficiency of the evidence.
    No error.
    Judges HUNTER and CALABRIA concur.
    Report per Rule 30(e).

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