An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-838


Filed: 20 April 2004


         v.                        Mecklenburg County
                                No. 02CRS220078

    Appeal by defendant from judgment entered 15 April 2003 by Judge Beverly T. Beal in Superior Court, Mecklenburg County. Heard in the Court of Appeals 22 March 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Clinton C. Hicks, for the State.

    Bowen Berry Powers & Slaughter, P.L.L.C., by Sue Genrich Berry, for defendant appellant.

    WYNN, Judge.

    Following his conviction on the charge of attempted robbery with a dangerous weapon, Defendant, Erik Cerrome Myers, contends the trial court erred in declining to instruct the jury on the lesser included offense of attempted common law robbery. We uphold the trial court's decision.
    At trial, evidence introduced by the State tended to show that on the evening of 5 May 2002, Defendant approached Jose Ramirez as he was leaving a neighbor's home in Charlotte, North Carolina. Defendant pointed a gun at Mr. Ramirez and demanded money. Mr. Ramirez fled, shouting to some nearby friends for assistance. Mr. Ramirez returned with his friends and pursued Defendant, whoescaped to a neighboring apartment. One of Mr. Ramirez's friends, Gabriel Alvarez, summoned law enforcement.
    Police officers responded to the scene approximately ten or twenty minutes later, and Mr. Ramirez led the officers to the apartment Defendant had entered. Mr. Ramirez subsequently identified Defendant from among the five or six occupants of the apartment as the person who attempted to rob him with a gun. Gabriel Alvarez also identified Defendant as the man whom he and the others had pursued.
    Defendant offered no evidence at trial. The jury found Defendant guilty of attempted armed robbery, and the trial judge entered judgment imposing a presumptive sentence of 82-108 months' imprisonment. Defendant appealed.
    Defendant has specifically abandoned his first, second, and fourth assignments of error. By his third and only remaining assignment of error, Defendant argues that the trial court erred in denying his request for an instruction on the lesser included offense of attempted common law robbery. We disagree.
    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 that
        “[t]he test in every case involving the propriety of an instruction on a lesser gradeof an offense is not whether the jury could convict defendant of the lesser crime, but whether the State's evidence is positive as to each 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, disc. review denied, 353 N.C. 532, 550 S.E.2d 165 (2001).
    Common law robbery is a lesser included offense of robbery with a dangerous weapon. Cummings, 346 N.C. at 325, 488 S.E.2d at 570. 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). 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). In State v. Frazier, 150 N.C. App. 416, 562 S.E.2d 910 (2002), this Court noted that
        [t]he primary distinction between armed robbery and common law robbery is that “the former is accomplished by the use orthreatened 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.
    Here, the jury was instructed on and found Defendant guilty of attempted robbery with a dangerous weapon. The uncontroverted evidence shows that Defendant brandished a gun during his attempted robbery of Mr. Ramirez. Mr. Ramirez testified to the fact that Defendant pointed the gun at him when he demanded money. Gabriel Alvarez also testified that Mr. Ramirez told him that Defendant had “tried to assault him with a gun.” Finally, responding officers testified that Mr. Ramirez informed them that Defendant used a gun during the attempted robbery. Defendant presented no evidence at trial. The State's evidence was therefore positive as to the use of a gun in the attempted robbery of Mr. Ramirez on the evening of 5 May 2002. There is no conflicting evidence in this regard. Accordingly, we conclude the trial court did not err in denying Defendant's request for an instruction on attempted common law robbery.
    Having so concluded, we hold Defendant received a fair trial, free from prejudicial error.
    No error.
    Judges HUNTER and McCULLOUGH concur.
    Report per Rule 30(e).

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