State v Black, 168 NC App 408 (04-723) 02/01/2005

Appeal by defendant from judgment entered 3 February 2004 by Judge Judson D. DeRamus, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 17 January 2005.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Judith Tillman, for the State.

John T. Hall for defendant-appellant.

HUNTER, Judge.

    Carlos William Black (“defendant”) appeals a felony conviction of robbery with a dangerous weapon (armed robbery). On appeal, he challenges the sufficiency of the evidence and the trial court's refusal to instruct on the lesser offense of common law robbery. As detailed below, we find no error in the judgment of the trial court.
    Defendant was charged with the armed robbery of Kendrick Lee Walker. The State's evidence tends to show that on the evening of 28 June 2003, Walker was walking from a friend's house to his own home in High Point, North Carolina, when he was approached by defendant. Defendant, who was walking out of a residence locatedat 515 Radford Street, asked Walker for a cigarette. Since Walker only had one cigarette, Walker offered to share it with defendant. Walker and defendant shared the cigarette, and entered the 515 Radford Street residence, where they talked for a few minutes. Walker then walked outside and sat down in a chair in the yard. Defendant subsequently walked outside, carrying a “long skinny” knife. Defendant threatened Walker with the knife, while demanding money, whereupon Walker gave defendant $180.00. Afraid that defendant would still stab him, Walker walked backward away from the scene. Once he got home, Walker called the police.
    The jury found defendant guilty as charged, and the trial court sentenced him to a presumptive term of 108-139 months imprisonment. Defendant appeals.
    By his first assignment of error on appeal, defendant argues that the trial court erred in denying his motion to dismiss. Defendant contends that there was insufficient evidence to show that he committed the offense charged. We disagree.
            In reviewing the denial of a defendant's motion to dismiss, this Court determines only whether the evidence adduced at trial, when taken in the light most favorable to the State, was sufficient to allow a rational juror to find defendant guilty beyond a reasonable doubt on each essential element of the crime charged.

State v. Cooper, 138 N.C. App. 495, 497, 530 S.E.2d 73, 75, per curiam aff'd, 353 N.C. 260, 538 S.E.2d 912 (2000). The State must be given the benefit of every favorable inference to be drawn from the evidence. Id. Contradictions and discrepancies must beresolved in favor of the State, and do not warrant dismissal. State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721 (2001).
    To obtain a conviction of robbery with a dangerous weapon, pursuant to N.C. Gen. Stat. § 14-87, the State must show that defendant (1) unlawfully took or attempted 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, and (3) whereby the life of a person is endangered or threatened. It is well settled that the defendant's use or threatened use of a dangerous weapon must precede or be concomitant with the taking, or be “'so joined by time and circumstances with the taking as to be part of one continuous transaction.'” State v. Brewton, 342 N.C. 875, 877-78, 467 S.E.2d 395, 397 (1996) (quoting State v. Olson, 330 N.C. 557, 566, 411 S.E.2d 592, 597 (1992)). In State v. Peacock, 313 N.C. 554, 563, 330 S.E.2d 190, 195-96 (1985), our Supreme Court stated:
        “In determining whether evidence of the use of a particular instrument constitutes evidence of use of 'any firearms or other dangerous weapon, implement or means' within the prohibition of G.S. § 14-87, the determinative question is whether the evidence was sufficient to support a jury finding that a person's life was in fact endangered or threatened [by the use of that instrument].”
Id. (quoting State v. Alston, 305 N.C. 647, 650, 290 S.E.2d 614, 616 (1982)). “Whether an instrument can be considered a dangerous weapon depends upon the nature of the instrument, the manner in which defendant used it or threatened to use it, and in some casesthe victim's perception of the instrument and its use.” Id. at 563, 330 S.E.2d at 196.
        If there is a conflict in the evidence regarding either the nature of the weapon or the manner of its use, with some of the evidence tending to show that the weapon used or as used would not likely produce death or great bodily harm and other evidence tending to show the contrary, the jury must, of course, resolve the conflict.

State v. Lowe, 150 N.C. App. 682, 686, 564 S.E.2d 313, 316 (2002). Significantly, a knife has been previously found to be a dangerous weapon. State v. Moore, 279 N.C. 455, 183 S.E.2d 546 (1971); see generally State v. Smallwood, 78 N.C. App. 365, 369, 337 S.E.2d 143, 145 (1985) (“[i]n cases where the knife has not been produced or described in detail, and the victim has not suffered injury or death, the question of whether a knife is a dangerous weapon is generally for the jury”).
    In the instant case, the evidence in the light most favorable to the State tends to show that defendant “came at [the victim]” “with a long skinny knife with a handle on it” and demanded that the victim “'[g]ive it up.'” The victim reiterated several times during his testimony his fear that defendant would attack or stab him with the knife if he did not give him the money. As a result of defendant's brandishing the knife, the victim gave defendant $180.00 in cash. Though defendant argues to the contrary, the evidence is sufficient to show that the victim was afraid and intimidated by the use (or threatened use) of the knife in question and consequently the victim, as demanded by defendant, gave defendant his money. Accordingly, we conclude that the trial courtdid not err in denying defendant's motion to dismiss. This assignment of error is overruled.
    By his second assignment of error, defendant argues that the trial court erred in accepting the verdict of the jury because there was a fatal variance between the indictments and the evidence offered by the State. We note, however, that defendant concedes that the indictment is “valid on its face.” Defendant merely seeks to recapitulate his first argument as to the sufficiency of the evidence. As previously stated, the evidence here is sufficient to submit defendant's guilt of armed robbery to the jury. Hence, this assignment of error is summarily overruled.
    By his third assignment of error, defendant argues that the trial court erred in denying his request for a jury instruction on common law robbery. Again, we disagree.
    It is well settled that, “[w]hen a defendant makes a written request for an instruction that is timely, correct in law, and supported by the evidence, the trial court must give such an instruction.” State v. Lucas, 353 N.C. at 578, 548 S.E.2d at 719- 20. However,
        [w]here all the evidence tends to show that the crime charged in the indictment was committed, and there is no evidence tending to show commission of a crime of less degree, the principle does not apply and it would be erroneous for the court to charge on the unsupported lesser degree.

State v. Griffin, 280 N.C. 142, 145, 185 S.E.2d 149, 151 (1971).
    In the case sub judice, all of the evidence tends to show that defendant committed the offense charged. Defendant does notdispute that he had a knife at the time of the offense. Moreover, the victim's testimony clearly establishes defendant's use of the knife to perpetrate the robbery in question. As such, defendant cannot show entitlement to an instruction on the lesser offense of common law robbery. This assignment of error is also overruled.
    Having so concluded, we hold that defendant received a fair trial, free from prejudicial error.
    No error.
    Judges ELMORE and STEELMAN concur.
    Report per Rule 30(e).

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