STATE OF NORTH CAROLINA
v
.
Cumberland County
No. 01 CRS 063276
LAWRENCE JACKSON,
Defendant.
Roy A. Cooper, III, Attorney General, by Gary R. Govert,
Special Deputy Attorney General, for the State.
Anne Bleyman, for defendant-appellant.
MARTIN, Chief Judge.
Defendant appeals from a judgment imposing an active sentence
entered upon his convictions by a jury of robbery with a dangerous
weapon and for being an habitual felon. The evidence presented at
trial tended to show that on 13 October 2001, Kenneth Drake, a
banquet cook at the Bordeaux Holiday Inn in Fayetteville, North
Carolina, was riding his bicycle home from work when a person on
the street called out to him and asked him if he would like to buy
some drugs. Mr. Drake motioned that he was not interested. A few
moments later he noticed that the same person who had called out to
him was following him on a small dirt bike. The person on the dirt
bike, later identified as defendant, rammed into Mr. Drake, causinghim to fall from his bicycle. At the time of the incident, Mr.
Drake was wearing a “fanny pack” which snapped and also fell to the
ground. Both men reached for the “fanny pack,” but Mr. Drake let
go when defendant began slashing at him with a box cutter. During
this confrontation, Mr. Drake testified that some of defendant's
friends, who were communicating with defendant and encouraging the
confrontation, came over and took his bicycle.
Realizing that both his “fanny pack” and his bicycle were
gone, Mr. Drake proceeded to walk to a nearby convenience store to
call for help. He asked to use the telephone, but the convenience
store owner stated that he did not have a telephone. As Mr. Drake
walked out of the store, he spotted the defendant walking into the
store with the “fanny pack” over his shoulder. He followed the
defendant into the store and told the store owner that the man with
the “fanny pack” was the person who just robbed him. Upon making
this statement, a man inside the store identified himself as the
defendant's uncle. Mr. Drake began having a conversation with the
man and agreed to follow him to a house where defendant's mother
lived. At the house, Mr. Drake talked with a woman who identified
herself as defendant's mother, and he eventually agreed to come
back the next morning to retrieve his property. However, when he
returned to the house the next morning, he was still unable to
retrieve his property. At this point, Mr. Drake went to the police
station and reported the incident. Based on the information
provided by Mr. Drake, including the address of the house wheredefendant's mother reportedly lived, defendant was arrested on 24
October 2001.
On 25 March 2002, defendant was indicted for robbery with a
dangerous weapon and for being an habitual felon. Defendant did
not testify at trial, nor did he present any evidence. A jury
found defendant guilty of robbery with a dangerous weapon and of
being an habitual felon. Due to his habitual felon status, he was
sentenced as a Class C offender in the presumptive range for
robbery with a dangerous weapon, receiving an active term of
imprisonment for a minimum of 151 months and a maximum of 191
months.
___________________
Defendant presents arguments to support five of the ten
assignments of error contained in the record on appeal. The
remaining assignments of error are deemed abandoned. N.C. R. App.
P. 28(a).
Defendant first assigns error to the trial court's denial of
his motion to dismiss the charge of robbery with a dangerous
weapon. The trial court must grant a defendant's motion to dismiss
if the State fails to present “substantial evidence (1) of each
essential element of the offense charged and (2) that defendant is
the perpetrator of the offense.” State v. Lynch, 327 N.C. 210,
215, 393 S.E.2d 811, 814 (1990). “In determining the sufficiency
of the evidence we consider it in the light most favorable to the
State.” Id. The elements of robbery with a dangerous weapon are set forth
in N.C. Gen. Stat. § 14-87 (2003). Our Supreme Court stated in
State v. Joyner, 295 N.C. 55, 243 S.E.2d 367 (1978):
[T]he essentials of the offense set forth in
G.S. 14-87 are (1) the unlawful taking or
attempted taking of personal property from
another; (2) the possession, use or threatened
use of 'firearms or other dangerous weapon,
implement or means'; and (3) danger or threat
to the life of the victim.
Id. at 63, 243 S.E.2d at 373.
Defendant first argues there was insufficient evidence to
establish that the box cutter used by defendant was a dangerous
weapon because (1) the box cutter was not described in detail; (2)
it was not admitted into evidence; and (3) the victim suffered no
injuries. We disagree.
“North Carolina has recognized box cutters to be dangerous
weapons as a matter of law.” State v. Pratt, 161 N.C. App. 161,
164, 587 S.E.2d 437, 439 (2003). In this case, the uncontradicted
evidence presented at trial showed that defendant and the victim
struggled to take possession of the victim's “fanny pack,” and in
an attempt to make the victim let go of the pack, defendant slashed
at him with what appeared to be a “straight, regular box razor.”
The victim further testified that he clearly saw a razor coming out
the end of the box cutter. Such evidence, without more, is clearly
sufficient to establish an inference that the instrument used by
the defendant was indeed a box cutter, and that the box cutter was
a dangerous weapon. See State v. Allen, 317 N.C. 119, 123, 343
S.E.2d 893, 896 (1986) (“When a person perpetrates a robbery bybrandishing an instrument which appears to be a firearm, or other
dangerous weapon, in the absence of any evidence to the contrary,
the law will presume the instrument to be what his conduct
represents it to be -- a firearm or other dangerous
weapon.”)(internal quotation omitted).
We also reject defendant's argument that there was
insufficient evidence to show that the victim's life was in fact
endangered or threatened. “The question in a [robbery with a
dangerous weapon] case is whether a person's life was in fact
endangered or threatened by defendant's possession, use or
threatened use of a dangerous weapon, not whether the victim was
scared or in fear of his life.” State v. Joyner, 295 N.C. 55, 63,
243 S.E.2d 367, 373 (1978). The uncontradicted evidence showed
that defendant slashed at the victim with a box cutter. Such
evidence is sufficient to establish an inference that the victim's
life was in fact endangered or threatened. See Pratt, 161 N.C.
App. at 164, 587 S.E.2d at 439. (“When a dangerous weapon is used
in a robbery, the law presumes that the victim's life was
threatened.”) Defendant's assignment of error is overruled.
Defendant next argues the trial court erred by failing to
instruct the jury on the lesser-included offenses of common law
robbery and larceny. “As a general rule, when there is evidence of
a defendant's guilt of a crime which is a lesser included offense
of the crime stated in the bill of indictment, the defendant is
entitled to have the trial judge submit an instruction on thelesser included offense to the jury.” State v. Tarrant, 70 N.C.
App. 449, 451, 320 S.E.2d 291, 293 (1984).
In this case, the evidence was uncontradicted that defendant
slashed at the victim with what appeared to be a box cutter during
the robbery. Our courts have held that where “the uncontradicted
evidence indicates that the robbery, if perpetrated, was
accomplished by the use of what appeared to be a dangerous weapon,”
the trial judge is not required to submit an instruction on the
lesser included offense of common law robbery. Id. at 451-52, 320
S.E.2d at 294. Thus, the trial court did not err in failing to
instruct the jury as to common law robbery.
Our courts have also held that “[w]hen a dangerous weapon is
used in a robbery, the law presumes that the victim's life was
threatened.” Pratt, 161 N.C. App. at 164, 587 S.E.2d at 439.
Since the evidence is uncontradicted that the robbery, if
perpetrated, was perpetrated by the use of what appeared to be a
dangerous weapon, there is also no evidence to support a charge for
larceny. See State v. White, 322 N.C. 506, 516, 369 S.E.2d 813,
818 (1988)(armed robbery is an aggravated form of larceny). This
assignment of error is overruled.
In his next assignment of error, defendant contends the trial
court erred by instructing the jury on the theory of acting in
concert. “It is generally error, prejudicial to defendant, for the
trial court to instruct the jury upon a theory of a defendant's
guilt which is not supported by the evidence.” State v. Brown, 80
N.C. App. 307, 311, 342 S.E.2d 42, 44 (1986). In this case, the indictment alleged that defendant committed
robbery with a dangerous weapon based on the taking of both a
bicycle and a “fanny pack” from Mr. Drake. At trial, the State
argued that the defendant acted in concert with others to assault
Mr. Drake and steal his property. The North Carolina Supreme Court
has defined the doctrine of acting in concert as follows:
If two persons join in a purpose to commit a
crime, each of them, if actually or
constructively present, is not only guilty as
a principal if the other commits that
particular crime, but he is also guilty of any
other crime committed by the other in
pursuance of the common purpose . . . or as a
natural or probable consequence thereof.
State v. Mann, 355 N.C. 294, 306, 560 S.E.2d 776, 784, cert.
denied, 537 U.S. 1005, 154 L. Ed. 2d 403 (2002)(internal quotations
omitted).
The uncontradicted evidence presented at trial showed that
there were other young men present during defendant's confrontation
with Mr. Drake. Mr. Drake testified that defendant communicated
back and forth with these young men, discussing, among other
things, who was going to take each piece of property, and that the
young men were encouraging defendant to assault him and take his
property. Mr. Drake also testified that at the moment he was
rammed by defendant and fell from his bicycle, these young men
“swooped” over and one of them took the bicycle.
Defendant argues that such testimony is not sufficient to show
that he and the young men acted pursuant to a common plan or
purpose. We disagree. The young men were (1) present at the scene
of the crime and (2) did some act, i.e. take the bicycle, whichformed a part of the crime. Such circumstances are sufficient to
create an inference that defendant acted with the others pursuant
to a common plan or purpose to assault Mr. Drake and steal his
property. See State v. Joyner, 297 N.C. 349, 356-357, 255 S.E.2d
390, 395 (1979). Defendant's assignment of error is overruled.
Next, defendant argues the habitual felon indictment is
facially invalid because the indictment alleges, as one of the
felonies supporting defendant's habitual felon status, that he had
been previously convicted of possession of cocaine in violation of
N.C. Gen. Stat. 90-95(d)(2), which defendant asserts is a
misdemeanor. Our Supreme Court recently held otherwise in State v.
Jones, ___N.C. ____, ____ S.E.2d ___ (June 25, 2004) (No. 591PA03),
and thus, defendant's argument to the contrary is overruled.
Defendant also argues there is insufficient evidence to
support his conviction of being an habitual felon. Specifically,
he argues that it was error to admit into evidence four arrest
cards which allegedly contained defendant's finger prints. Because
there was sufficient evidence other than the arrest cards to
support the habitual felon conviction, we need not address
defendant's argument.
In this case, the State presented certified copies of each
court record supporting the convictions alleged in the habitual
felon indictment. This evidence alone is sufficient to support
defendant's conviction of being an habitual felon. See N.C. Gen.
Stat. § 14-7.4 (2003) (“A prior conviction may be proved . . . by
the original or a certified copy of the court record of the priorconviction.”). Thus, even without consideration of the arrest
cards, there was sufficient evidence to support a conviction of
being an habitual felon. Defendant's final assignment of error is
overruled.
Finally, we note a clerical error on the face of the judgment,
which indicates defendant pled guilty to the offense when, in fact,
he pled not guilty and was convicted by a jury. We remand to the
trial court for correction of the clerical error.
No error, remanded for correction of clerical error.
Judges HUNTER and THORNBURG concur.
Report per Rule 30(e).
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