STATE OF NORTH CAROLINA
v. Wayne County
No. 02 CRS 60641
RONALD RASHONE HOBBS
Attorney General Roy Cooper, by Assistant Attorney General Kay
Linn Miller Hobart, for the State.
Amos Granger Tyndall for defendant-appellant.
STEELMAN, Judge.
Defendant appeals his conviction for robbery with a dangerous
weapon. For the reasons discussed herein, we find he received a
fair trial free from prejudicial error.
Tywan DeAngelo Parks (Parks), the victim, testified that on 7
November 2002, he arrived at the Playground nightclub at
approximately 10:30 p.m. After sitting for “a while,” he went to
the bathroom, where he saw four or five guys standing by the
entrance. Parks bumped into one of the men, who was wearing a tan
jacket. The man reached into Parks' pocket. As Parks removed the
man's hand from his pocket, the man threw a punch. A second member
of the group then threw a punch at Parks. After being hit two orthree times, Parks tried to leave the bathroom. Defendant, clad in
a blue hat and jacket, pulled a gun on Parks and told him that “it
was [] a hold up[.]” Afraid of the gun, Parks stopped, whereupon
he was struck in the head and lost consciousness. Although he
thought defendant delivered this blow with the gun, he was not
certain.
When Parks came to, he was bleeding from the nose and from a
gash on his head and was missing $327.00 in cash, his
identification card, gold necklace, wristwatch, and cell phone,
which was wrapped with a piece of black electrical tape. When
Parks finally left the bathroom, he walked out of the nightclub and
into the parking lot. “[S]tanding [at] the corner of the building”
were the men who had robbed him, including defendant. Parks
approached a police officer and pointed toward his assailants. As
the officer approached the men in his patrol car, “they ran around
the side of the building.” The officer later returned with Parks'
cell phone and identification card, which the State introduced into
evidence.
Goldsboro Police Officer Bryan Belden testified that Parks
approached his patrol car in the Playground parking lot and claimed
“that he was robbed at gunpoint in the bathroom and beaten[.]”
Parks was “as upset as he could be[,]” his face was bloody, and he
was holding a rag or shirt to his head to stop the bleeding. When
Parks pointed out the group of four or five men as the robbers,
Officer Belden pulled his car toward the corner of the building and
radioed for backup. Officer Belden proceeded down Williams Streetto Hooks River Road where he saw defendant walking towards Victor
Place. Defendant was wearing a dark colored jacket. Exiting his
car, Officer Belden ordered defendant to stop and took him into
custody. Upon a search of defendant's person, the officer found
Parks' cell phone and identification card, $70.00 in cash, and a
second cell phone. Arnold Thorton, Jr. and Anthony Barnes were
apprehended by other officers. A fourth suspect eluded capture.
Officer Belden placed defendant in the back seat of his patrol
car and drove back to the Playground parking lot, where Parks
instantly identified defendant as “the guy that hit me with the
gun[.]” Parks further identified his cell phone, noting the tape
around the antenna.
Officer Belden read to the jury the written statement he
prepared on the night of the incident, which recorded Parks' report
“that he was robbed and beaten in the men's room inside the
Playground at gunpoint” and Parks' subsequent identification of
defendant, his cell phone, and identification card. Officer
Belden's report further noted Parks' identification of Thorton as
“one of the men that beat and robbed him at gunpoint[,]” and
Thorton's possession of $322.00 in cash at the time of his arrest.
Defendant testified on his own behalf and gave his account of
the events that occurred on the night of 7 November 2002.
Defendant testified that he went to the Playground nightclub with
Roderick Ayers. He sat at the bar with Ayers and drank three or
four beers. Defendant denied robbing or assaulting Parks in the
bathroom and also denied having a gun. Defendant stated that heentered the club with $95.00, and left with $70.00 after spending
$25.00 over the course of the evening. He said he found Parks'
identification card on top of the bar and decided to keep the card
for his personal use, because his own driver's license had been
suspended. Defendant further testified that after leaving Ayers at
the bar, he walked outside and saw a fight in the parking lot. He
asserted that towards the end of the fight, Parks and Barnes
exchanged blows before Barnes took off running. He also claimed
that as the police were chasing the participants, he spotted two
cell phones on the ground and picked them up. When the police told
everyone to leave, defendant walked away from the nightclub and was
stopped by an officer on Herman Street. Defendant insisted he did
not take part in the fight, did not know or speak to any of the
people involved, and would not even have thought about fighting.
In rebuttal, the State re-called Officer Belden, who testified
that he arrived in the Playground parking lot just as Parks was
walking out of the front door, and that defendant was already
outside on the sidewalk of the building. Officer Belden saw no one
fighting in the parking lot. Upon speaking with Parks, Officer
Belden immediately proceeded towards defendant in his patrol car.
Defendant was apprehended within two minutes of Parks' report of
the robbery.
In defendant's fourth assignment of error he contends the
trial court committed error, or plain error, in failing to instruct
the jury on common law robbery as a lesser included offense of
robbery with a dangerous weapon. Assuming arguendo, that defendantproperly preserved this issue for our review, we find it to have no
merit.
The trial court must instruct the jury on any lesser included
offense which is supported by the evidence. State v. Kyle, 333
N.C. 687, 703, 430 S.E.2d 412, 421 (1993). Such an instruction is
warranted “only where there is evidence that would permit a jury
rationally to find a defendant guilty of the lesser offense and
acquit him of the greater offense.” State v. Barnette, 96 N.C.
App. 199, 202, 385 S.E.2d 163, 164 (1989) (citations omitted). The
mere possibility that the jury might accept some, but not all, of
the State's proffer is insufficient to warrant an instruction on a
lesser offense. Id.
Robbery with a dangerous weapon is defined as: “(1) an
unlawful taking or an attempt to take personal property from the
person or in the presence of another, (2) by use or threatened use
of a firearm or other dangerous weapon, (3) whereby the life of a
person is endangered or threatened.” State v. Call, 349 N.C. 382,
417, 508 S.E.2d 496, 518 (1998) (citing N.C. Gen. Stat. § 14-87).
Common law robbery is a lesser included offense of robbery with a
dangerous weapon. State v. Frazier, 150 N.C. App. 416, 419, 562
S.E.2d 910, 913 (2002). It is defined as “'the felonious,
non-consensual taking of money or personal property from the person
or presence of another by means of violence or fear.'” State v.
Jones, 339 N.C. 114, 164, 451 S.E.2d 826, 854 (1994), cert. denied,
515 U.S. 1169, 132 L. Ed. 2d 873 (1995) (citations omitted). The
difference between robbery with a dangerous weapon and common law robbery is that common law robbery requires the forcible taking of
another's property by “the use, or threatened use, of violence[,]”
Id., but without “[t]he use or threatened use of a dangerous
weapon” required for a conviction of robbery with a dangerous
weapon. Frazier, 150 N.C. App. at 419, 562 S.E.2d at 913.
The State presented positive, substantial, and unrebutted
evidence of each essential element of robbery with a dangerous
weapon. Parks described a robbery in the club's bathroom, during
which defendant prevented his escape by brandishing a handgun.
Although Parks was uncertain whether the gun was used to deliver
the blow which knocked him unconscious, he expressed no uncertainty
as to defendant's possession of a gun. Parks' testimony was
corroborated by his statement to Officer Belden immediately
following the incident that he was robbed at gunpoint in the
bathroom, and by his identification of defendant at the scene as
“the guy that hit me with the gun[.]” Absent any evidence to the
contrary that the object drawn by defendant in the club's bathroom
was a gun, “there is a mandatory presumption that the weapon was as
it appeared to the victim to be[,]” a gun. State v. Allen, 317
N.C. 119, 124, 343 S.E.2d 893, 897 (1986). Moreover, nothing else
appearing, a handgun is a “dangerous weapon” for purposes of N.C.
Gen. Stat. § 14-87. State v. Reives, 29 N.C. App. 11, 12, 222
S.E.2d 727, 728 (1976) (noting “[a] pistol is a deadly weapon per
se”)).
Defendant's evidence did not support a jury finding that he
committed the offense of common law robbery. Defendant testifiedthat he did not commit the robbery. Even taken as true, this
account has no tendency to show defendant forcibly took the
property from Parks by force or the threat of force. Since there
was no evidence which would support an instruction on the lesser
included offense of common law robbery, the trial court did not err
in failing to give such an instruction. See State v. Poole, 154
N.C. App. 419, 424, 572 S.E.2d 433, 437 (2002), cert. denied, 356
N.C. 689, 578 S.E.2d 589 (2003).
In his fifth assignment of error, defendant assigns plain
error to the trial court's failure to instruct the jury on the
lesser included offense of misdemeanor larceny. See N.C.R. App. P.
10(c)(4). While conceding he made no request for this instruction
at trial, as required by N.C.R. App. P. 10(b)(2), defendant insists
the court's decision to instruct on only the charged offense “tied
the jurors' hands and mandated a conviction” thereon.
When a defendant assigns plain error to the trial court's
failure to instruct the jury on a lesser included offense, he “must
convince this Court that there was error and that absent the error,
the jury probably would have reached a different verdict.” State
v. Thomas, 350 N.C. 315, 348, 514 S.E.2d 486, 506, cert. denied,
528 U.S. 1006, 145 L. Ed. 2d 388 (1999). Defendant has failed to
meet this burden. Other than claiming the court's instructions
tied the jury's hands and was manifestly unfair, defendant has made
no attempt to articulate the plain error standard of review or to
present a meaningful argument for relief under that standard.
“[B]y simply relying on the words 'plain error' as the extent ofhis argument in support of plain error, defendant has effectively
failed to argue plain error and has thereby waived appellate
review.” See State v. Wiley, 355 N.C. 592, 624, 565 S.E.2d 22, 44
(2002), cert. denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003).
In defendant's second assignment of error he contends the
trial court committed plain error in admitting evidence that he
exercised his right to remain silent following his arrest. The
following allusion to defendant's post-arrest silence appeared in
Officer Belden's written report of the incident, which he read to
the jury:
Both [defendant and Thorton] were transported
to the Goldsboro Police Department where they
were read their rights. Both men, Mr. Thorton
and [defendant], declined to answer any
questions or make a statement. A third man
was arrested in connection with the armed
robbery . . . . His name is Anthony Lamont
Barnes. Mr. Barnes was also read his rights
and he declined to answer any questions or
make a statement.
Defendant concedes he offered no objection to Officer Belden's
report at trial.
“[T]he exercise of [a defendant's] constitutionally protected
rights to remain silent and to request counsel during interrogation
may not be introduced as evidence against [him] by the State at
trial.” State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779
(1997). Where the defendant, as is the case here, fails to object
at trial, he “has the burden of showing that the error constituted
plain error, that is, (i) that a different result probably would
have been reached but for the error or (ii) that the error was so
fundamental as to result in a miscarriage of justice or denial ofa fair trial.” Id.
We find defendant has failed to meet his burden. Officer
Belden's single reference to defendant's silence was imbedded
within a lengthy written report in which the officer also noted the
silence of two other suspects. The prosecutor made no inquiry into
or comment upon defendant's post-arrest silence. In light of the
substantial evidence of defendant's guilt as recited above, Officer
Belden's brief mention of defendant's post-arrest silence did not
deprive him of his right to a fair trial. See id.; State v.
Elmore, 337 N.C. 789, 792, 448 S.E.2d 501, 502-03 (1994).
The record contains two additional assignments of error not
addressed by defendant in his appellant's brief. Pursuant to Rule
28(b)(6) of the Rules of Appellate Procedure, they are deemed
abandoned.
NO ERROR.
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).
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