Appeal by defendant from judgment entered 12 March 2003 by
Judge Robert C. Ervin in Mecklenburg County Superior Court. Heard
in the Court of Appeals 26 April 2004.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorneys General Gayl M. Manthei and Mabel Y. Bullock, for
the State.
James N. Freeman, Jr. for defendant-appellant.
HUNTER, Judge.
Tony Dendy (“defendant”) appeals from a judgment filed 12
March 2003 entered consistent with jury verdicts finding him guilty
of robbery with a dangerous weapon and resisting a public officer.
Defendant was sentenced to an active prison term with a minimum of
96 months and a maximum term of 125 months. We conclude there was
no error in defendant's trial.
The State's evidence tends to show that on 5 July 2002,
Gregory Walker (“Walker”) obtained a marijuana cigarette and went
into some woods near a homeless shelter to smoke it with a woman he
had just met. Shortly after, defendant came into the woods and
asked Walker, “why you do this to my woman?” Defendant and Walker
began to scuffle, during which Walker heard defendant saying,“[g]et my blade. Get my blade. Get my blade out of my pocket.”
During the altercation, defendant and the woman were pulling at
Walker's pants and defendant took Walker's money from his pocket.
Walker followed defendant and the woman out of the woods demanding
them to return the money, and defendant replied, “I ain't giving
you nothing. You don't get away from me I'm going to cut you.” As
he was making this statement, defendant had a box cutter in his
hand. Walker testified that defendant took “[a]bout a [h]undred
[f]ifteen [d]ollars.” Walker flagged down a passing police
officer, and defendant, after resisting, was eventually arrested
and the money returned to Walker.
Sergeant E. B. Peterson (“Sergeant Peterson”) testified that
he was flagged down by Walker as he was driving by in a patrol car.
Walker told Sergeant Peterson that he had been robbed by defendant
and Sergeant Peterson called for back up. On cross-examination,
Sergeant Peterson testified that he could not recall if Walker had
told him that defendant had used a weapon to rob him. A police
report filed by Sergeant Peterson made no mention of a weapon being
used in the robbery, but noted that back up had been called to
investigate the robbery and the investigation was turned over to
those officers.
Officer Timothy Slater testified that he responded to the
call. Upon his arrival, Walker accused defendant of robbing him
and stated that defendant had a box cutter that had been used in
the robbery. After initially denying having robbed Walker,
defendant became agitated and angry and started flailing his handsabout while yelling and cursing. Defendant eventually consented to
a search, which revealed a box cutter and $116.00 in cash.
Defendant resisted arrest and struggled with the officers before
being handcuffed.
Officer Joseph Crumpler (“Officer Crumpler”) testified that
Walker stated that defendant had robbed him using a straight edge
razor. Officer Crumpler's police report did not mention that a
straight edge razor had been used in the robbery and in fact did
not relate the facts of the robbery itself. The report instead
focused on the events after Officer Crumpler arrived on the scene,
but noted that Walker complained of $115.00 being stolen by
defendant, and that “a straight edge razor,” identified as the box
cutter, and $116.00 were found on defendant. Defendant presented
no evidence.
The issues are whether: (I) defendant was entitled to an
instruction on the lesser-included offense of common law robbery;
(II) it was error for the trial court to fail to give the pattern
jury instruction for interested witnesses based on the testimony of
Walker, the crime victim; and (III) there was sufficient evidence
that a dangerous weapon was used during the robbery to withstand a
motion to dismiss.
I.
Defendant first contends that he was entitled to an
instruction on the lesser-included offense of robbery because there
was contradictory evidence as to whether he employed a weapon
during the robbery. We disagree. “Due process requires that a lesser-included offense should be
submitted to the jury when there is evidence supporting a finding
that the lesser included-offense has been committed.”
State v.
Bellamy, 159 N.C. App. 143, 150, 582 S.E.2d 663, 668,
cert. denied,
357 N.C. 579, 589 S.E.2d 130 (2003). However, “[t]he trial court
is not required to submit a lesser-included offense 'when the
State's evidence is positive as to every element of the crime
charged and there is no conflicting evidence relating to any
element of the crime charged.'”
Id. (quoting
State v. Smith, 110
N.C. App. 119, 134, 429 S.E.2d 425, 432 (1993)). Moreover, “[t]he
mere contention that the jury might accept the State's evidence
that defendant robbed . . . [the victim], but might reject the
State's evidence that defendant used or threatened to use the
[blade] does not require the submission of the offense of common
law robbery to the jury.”
State v. Black, 21 N.C. App. 640, 644,
205 S.E.2d 154, 156,
aff'd, 286 N.C. 191, 209 S.E.2d 458 (1974).
In this case, defendant contends there was conflicting
evidence on whether a weapon was used in the robbery. Defendant
notes that neither the report of Sergeant Peterson nor the report
of Officer Crumpler states that a weapon was used in the robbery.
Further, defendant asserts that “the testimony of [Sergeant]
Peterson[] showed that Walker never mentioned the box cutter to him
in describing the robbery.” A review of the transcript, however,
reveals that Sergeant Peterson actually testified only that he
could not recall whether Walker told him a box cutter had been
used. In addition, Sergeant Peterson's report shows that he wasthe first officer on the scene, was informed Walker had been
robbed, and simply turned the investigation over to the officers
who responded to his call for back up. This does not constitute
conflicting evidence as to whether defendant used a weapon during
the robbery.
Officer Crumpler's report focused on events occurring after he
arrived on the scene leading up to defendant's resisting arrest,
except to note that Walker stated he had been robbed and a
subsequent search of defendant revealed a box cutter and
approximately the same amount of cash alleged to have been stolen.
Thus, Officer Crumpler's report does not conflict with the accounts
of the robbery itself. Furthermore, Officer Crumpler testified at
trial that Walker stated a straight edge razor or box cutter had
been used during the robbery.
In this case, as in
Black:
Under the State's evidence, if a robbery were
committed . . . , it was committed . . . with
the use or threatened use of the [blade]. The
jury was properly instructed that they must be
satisfied beyond a reasonable doubt of the
existence of each element of the crime, which
included the use or threatened use of the
[blade], or it would be the jury's duty to
acquit defendant.
Id. Therefore, we conclude defendant was not entitled to an
instruction on the lesser included offense of common law robbery as
the State's evidence was affirmative and uncontradicted as to the
use of a dangerous weapon during the robbery.
II.
Defendant further contends that the trial court erred by
denying his request for a jury instruction on the credibility of an
interested witness based upon the testimony of Walker, the
prosecuting witness. Precedent set by this Court, however, holds
that it is, in fact, error for the trial court to give a jury an
interested witness instruction based on testimony of the
prosecuting witness because such an instruction would “'improperly
and prejudicially' discredit the testimony of the prosecuting
witnesses and would be an unwarranted extension of the interested
witness rule beyond the reasons underlying its existence.”
State
v. Williams, 6 N.C. App. 611, 613, 170 S.E.2d 640, 641 (1969). We
are bound by the precedent set by
Williams and therefore conclude
the trial court did not err in denying defendant's request for an
interested witness instruction regarding Walker's testimony.
III.
Defendant finally contends that he was entitled to dismissal
of the robbery with a dangerous weapon charge because there was
insufficient evidence that his use of the box cutter was
concomitant with the robbery and further that there was no evidence
Walker ever felt threatened or endangered by the box cutter.
“In order to withstand a motion to dismiss a charge of robbery
with a dangerous weapon, the State is required to present
substantial evidence of all the essential elements of that crime.”
Bellamy, 159 N.C. App. at 147, 582 S.E.2d at 667.
The essential elements of robbery with a
dangerous weapon are “(1) the unlawful taking
or attempt to take personal property from the
person or in the presence of another (2) byuse or threatened use of a firearm or other
dangerous weapon (3) whereby the life of a
person is endangered or threatened.”
Id. (quoting
State v. Small, 328 N.C. 175, 181, 400 S.E.2d 413, 416
(1991)). In
Bellamy, this Court recognized:
Robbery with a dangerous weapon requires
that “the defendant's use or threatened use of
a dangerous weapon must precede or be
concomitant with the taking, or be so joined
with it in a continuous transaction by time
and circumstances as to be inseparable.”
State v. Hope, 317 N.C. 302, 306, 345 S.E.2d
361, 364 (1986). “[T]he exact time
relationship, in armed robbery cases, between
the violence and the actual taking is
unimportant as long as there is one continuing
transaction.”
State v. Lilly, 32 N.C. App.
467, 469, 232 S.E.2d 495, 496-97 (1977). . . .
For purposes of robbery, . . . “the taking is
not over until after the thief succeeds in
removing the stolen property from the victim's
possession.”
State v. Sumpter, 318 N.C. 102,
111, 347 S.E.2d 396, 401 (1986). Property is
in the legal possession of a person if it is
under the protection of that person.
State v.
Barnes, 125 N.C. App. 75, 79, 479 S.E.2d 236,
238,
aff'd, 347 N.C. 350, 492 S.E.2d 355
(1997) (per curiam). “Thus, just because a
thief has physically taken an item does not
mean that its rightful owner no longer has
possession of it.”
Id.
Id. at 148-49, 582 S.E.2d at 667-68. In addition, “[t]he question
in an armed robbery 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).
In this case, defendant threatened to use a box cutter in a
manner which created a threat to Walker's life. There was also
evidence that during the scuffle, defendant instructed the woman to“[g]et [his] blade.” Furthermore, Walker testified that after the
scuffle in which his money was taken, he continued to follow
defendant until defendant threatened him with the box cutter. This
is sufficient evidence to establish a continuous transaction, such
that the use, or threatened use, of the box cutter as a dangerous
weapon was concomitant with the taking of Walker's money.
Therefore, the trial court did not err in denying defendant's
motion to dismiss.
No error.
Chief Judge MARTIN and Judge THORNBURG concur.
Report per Rule 30(e).
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