STATE OF NORTH CAROLINA
v. Guilford County
Nos. 02 CRS 103298
MICHAEL WILLIAM GRAHAM 02 CRS 103300
02 CRS 103711
Attorney General Roy Cooper, by Special Deputy Attorney
General W. Richard Moore, for the State.
Irving Joyner for defendant-appellant.
ELMORE, Judge.
On 21 January 2003, the Guilford County grand jury indicted
defendant on charges of possession with intent to sell and deliver
cocaine and of maintaining a dwelling for the keeping of a
controlled substance. The grand jury also indicted defendant on 3
February 2003 on a charge of robbery with a dangerous weapon. A
jury found defendant to be guilty of robbery with a dangerous
weapon on 30 October 2003, and defendant on that same date pled
guilty to the remaining charges pursuant to a plea agreement. The
trial court imposed consecutive sentences totaling 132 to 168
months imprisonment. From the trial court's judgments, defendant
appeals. The State presented evidence tending to show the following:
Shortly after 2:00 p.m. on 13 November 2002, the manager of a
Greensboro Subway Restaurant was talking on the telephone in the
back room of the restaurant. A second employee was in the restroom
at that time. The manager heard more than one person enter the
restaurant, and he came around the wall from the back room to
check. He only saw one man standing in front of the counter, and
he asked if he could help the man. The man declined the manager's
offer and headed for the hallway which led to both the restroom and
the door to the back room.
After the man walked away, the manager returned to the back
room. Defendant then opened the door to the back room and asked
for the manager. Despite being told the manager was not in,
defendant and the man who had been at the counter entered the back
room, which was an employee work area. The two men told the
manager to show them the money. They were approximately two feet
away from the manager. Defendant picked up the other employee's
cell phone and a meat-cutting knife from a food preparation table.
The manager described the knife as having a blade of six to eight
inches in length and as being “almost ten inches” in length
including the handle.
As the manager moved to hang up the telephone, the second man
threatened to shoot him. The manager never saw a firearm. During
this time, the manager said defendant was “[j]ust holding [the
knife] like that” and “[i]t looked _- like he did not want me to
move.” When asked what his thoughts were upon seeing the knife,the manager testified, “I mean I wasn't going to take the chance.”
He backed up toward an oven in the small kitchen area as the two
men were taking money from the cash register and a change box.
After the men took the money and also the other employee's cell
phone from the table in the back room, they fled. The manager did
not see the knife afterwards. He provided officers with the
license plate number of the vehicle in which the two men escaped.
On 18 November 2002, the manager identified defendant in a
photographic lineup.
Officers located and stopped the vehicle, which was a rental
vehicle, the next day. When officers informed the woman who was
driving the vehicle that the vehicle had been used in a robbery,
she told them that defendant had borrowed the vehicle at
approximately 8:30 a.m. on the previous day and did not return it
to her until about 7:00 p.m. The driver informed officers of the
hotel room in which defendant was staying and accompanied them to
the location. A room key which she provided did not work, so
officers continued knocking on the room door. Defendant opened the
door and subsequently consented to a search of the room. Upon
entering the room, officers observed a half-smoked marijuana joint
and a plate with a silver spoon and a razor blade with white
residue. Officers found crack cocaine in the toilet tank in the
bathroom. Defendant's palm print was found on the vehicle's rear
view mirror. Defendant made a motion to dismiss the robbery with
a dangerous weapon charge at the close of the State's evidence,
which the trial court denied. Defendant introduced several exhibits into evidence, but
failed to renew his motion to dismiss at the close of all the
evidence. During the charge conference, the trial court denied
defendant's request for an instruction on the lesser included
offense of common law robbery. The trial court also denied a
motion by the State for an instruction that the knife was a
dangerous weapon as a matter of law. After the jury found
defendant to be guilty of the charge, defendant made a motion to
set aside the verdict. Following the trial court's denial of his
motion, defendant pled guilty to the drug offenses pursuant to a
plea arrangement.
Defendant first contends the trial court erred by denying his
request to instruct the jury on the lesser included offense of
common law robbery. He argues he was entitled to the instruction
because the trial court denied a motion by the State to instruct
the jury that the knife was a dangerous weapon as a matter of law.
Defendant's argument is not persuasive.
In State v. Wilson, this Court summarized the applicable
principles as follows:
When a person commits a robbery by the use or
threatened use of what appears to be a . . .
dangerous weapon, the law presumes, absent any
evidence to the contrary, that the instrument
is what it appears to be _ a weapon
endangering the life of the person being
robbed. This presumption is mandatory when no
evidence is introduced to show the victim's
life was not in danger. However, if the
defendant comes forward with some evidence
tending to show the instrument was not a
dangerous weapon, then the mandatory
presumption disappears and the jury may, but
is not required to, infer the instrument usedwas a dangerous weapon. In such a case,
instruction on the lesser included offense of
common law robbery should also be given.
Wilson, 121 N.C. App. 720, 725, 468 S.E.2d 475, 479 (1995)
(citations omitted). The manager described the knife held by
defendant during the robbery as being approximately ten inches long
with a six to eight-inch blade. From the manager's testimony that
he “wasn't going to take the chance” after seeing the knife and
from his action of backing away toward an oven in the small kitchen
area, it is clear he perceived his life was in danger because of
the knife. Although the second man threatened to shoot him, the
manager testified he never saw a firearm. No evidence was
introduced to show the manager's life was not in danger.
Defendant's reliance upon the trial court's decision not to
instruct the jury that the knife was a dangerous weapon as a matter
of law is misplaced. Where the weapon is described in detail and
the manner of its use is of such character as to admit but one
conclusion, the question of whether it is a dangerous weapon is a
question of law. See State v. Torain, 316 N.C. 111, 119, 340
S.E.2d 465, 470, cert. denied, 479 U.S. 836, 93 L. Ed. 2d 77
(1986). The uncontradicted evidence of defendant's use of the
knife compels a finding that it was a dangerous weapon. Although
the trial court could properly have found it to be a dangerous
weapon as a matter of law, its failure to do so was harmless error.
The trial court's decision to submit the matter as a question of
fact to the jury was in fact advantageous to defendant because it
placed a higher burden upon the State. Id. On the basis of theState's evidence as to the knife and of its use by defendant, along
with the lack of evidence to the contrary, the trial court properly
declined to instruct the jury on the lesser included offense of
common law robbery.
Defendant next contends the trial court erred by denying his
motion at the close of the evidence to dismiss the charge of
robbery with a dangerous weapon and by denying his motion to set
aside the jury's verdict. He argues there was no evidence that he
brandished the knife or used it to threaten the manager, and he
asserts there was no testimony that the manager relinquished
possession of the money because of the use of the knife. His
argument is not persuasive.
As an initial matter, defendant has failed to preserve this
argument for appeal. By failing to move for a dismissal of the
action at the close of all the evidence, “[defendant] may not
challenge on appeal the sufficiency of the evidence to prove the
crime charged.” N.C.R. App. P. 10(b)(3) (2004).
Nonetheless, we have examined the record and find defendant's
argument to be without merit. When viewed in the light most
favorable to the State, see State v. Davis, 325 N.C. 693, 696-97,
386 S.E.2d 187, 189 (1989), the evidence was sufficient to support
the trial court's decision to submit the charge of robbery with a
dangerous weapon to the jury. See N.C. Gen. Stat. § 14-87 (2003).
Defendant entered the employee work area of the restaurant with a
second man, and he picked up and held a ten-inch knife as the two
men stood approximately two feet away from the manager. Themanager testified to thinking that he “wasn't going to take the
chance” upon seeing the knife in defendant's hand and that “[i]t
looked -- like he did not want me to move.” He backed up toward an
oven in the small kitchen area as the two men were taking money
from the cash register and a change box. After the men took the
money and also the other employee's cell phone from the table in
the back room, they fled.
Evidence of defendant's possession of the knife, of its
characteristics, and of the manager's perception of the threat it
posed to his life was sufficient to support each of the challenged
elements of the offense. The trial court therefore properly denied
the motion to dismiss the charge of robbery with a dangerous
weapon. Additionally, based upon the evidence presented, defendant
has not shown the trial court abused its discretion in denying his
motion to set aside the verdict. See State v. Fleming, 350 N.C.
109, 146, 512 S.E.2d 720, 745 (trial court's ruling on motion to
set aside verdict for insufficient evidence reviewable under abuse
of discretion standard), cert. denied, 528 U.S. 941, 145 L. Ed. 2d
274 (1999). Accordingly, we find no error.
No error.
Judges HUNTER and STEELMAN concur.
Report per Rule 30(e).
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