State v Mackey, (04-1173) 05/03/2005

Appeal by defendant from judgment entered 23 January 2004 by Judge W. Russell Duke, Jr., in Pitt County Superior Court. Heard in the Court of Appeals 25 April 2005.

Attorney General Roy Cooper, by Assistant Attorney General M. Lynne Weaver, for the State.

Paul T. Cleavenger, for defendant-appellant.

CALABRIA, Judge.

     William Marcelle Mackey (“defendant”) was sentenced to a term of 107 to 138 months in the North Carolina Department of Correction upon being found guilty of one count of attempted robbery with a dangerous weapon . We find no error.
     On 25 November 2002, defendant expressed interest in purchasing a car from Brown and Wood, an automobile dealership in Greenville, North Carolina. Specifically, defendant wanted to look at used Cadillacs and asked John Stevenson, Jr. (“Stevenson”) for a ride in one of them. Stevenson asked defendant for his driver's license, but defendant deferred, telling Stevenson “You just go ahead and drive. . . That's all I want to do. I just want to ride.. . I'm here to buy a car.” Stevenson then took defendant for a ride in the vehicle.
    Shortly after leaving the lot, defendant told Stevenson to “Pull over” because he had to use a bathroom. When Stevenson started to pull over in front of a business, defendant told him “No, pull back here so I can piss.” Stevenson refused and pulled back onto the road. Fifteen to twenty seconds later, defendant yelled at Stevenson to “Pull over now.” Stevenson became frightened and complied, pulling over in front of a housing development. As soon as Stevenson parked the car , the doors unlock ed. Defendant demanded Stevenson's wallet. Stevenson started to undo his seatbelt, and defendant reached behind and “undid something.” Stevenson testified that “[a]s soon as I hit my seatbelt I saw something black out of the corner of my eye.” Stevenson pulled away from defendant, got out of the car, and flagged down a tractor-trailer. The tractor-trailer blocked the car to prevent defendant from stealing it. Defendant moved to the driver's seat but could not get the car in gear. Defendant got out of the car and ran. An examination of the car revealed a knife on the front seat. When defendant was arrested, he had an empty black sheath attached to his belt. The knife found in the car fit in the sheath found on defendant.
    After the close of all the evidence at trial, the jury returned a verdict of guilty of attempted robbery with a dangerous weapon, and judgment was entered thereon. Defendant appeals. Defendant first argues that there was insufficient evidence tosupport the conviction. Defendant contends that it is clear that the victim did not know that he had a knife and was never intimidated or placed in fear by a dangerous weapon. We disagree.
     To survive a motion to dismiss, the State must present, in relevant part, substantial evidence of each essential element of the charged offense. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). “'Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'” Id., 345 N.C. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)). When reviewing the sufficiency of the evidence, “[t]he trial court must consider such evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom.” State v. Patterson, 335 N.C. 437, 450, 439 S.E.2d 578, 585 (1994).
     In the instant case, defendant was charged with attempted robbery with a dangerous weapon. The essential elements of robbery with a dangerous weapon are: “(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). This Court has stated the following:
        to obtain a conviction for armed robbery, it is not necessary for the State to prove that the defendant displayed the [dangerous weapon] to the victim. Proof of armed robbery requires that the victim reasonably believed that the defendant possessed, or used or threatened touse a [dangerous weapon] in the perpetration of the crime.

State v. Bartley, 156 N.C. App. 490, 496, 577 S.E.2d 319, 323 (2003).
    Here, Stevenson testified that defendant ordered him to pull over, he saw defendant reach behind him, undo something, and then he caught a glimpse of something black in the corner of his eye. Stevenson affirmed at trial that he thought defendant possessed a gun or knife. Moreover, a knife was found in the car after defendant fled, and he was found in possession of an empty sheath on his belt, which the knife fit. In light of this evidence, we hold a jury could reasonably conclude that defendant attempted to rob Stevenson with a dangerous weapon and Stevenson reasonably believed defendant possessed a dangerous weapon in the perpetration of the robbery. Accordingly, the assignment of error is overruled.
    Defendant next argues that the trial court erred by failing to instruct the jury on the lesser included offense of common law robbery. Defendant contends that the victim did not learn of the knife until after the robbery, and thus there was sufficient evidence to justify an instruction on common law robbery. We are not persuaded.
    Our Supreme Court has stated:
We have held that where the uncontroverted evidence is positive and unequivocal as to each and every element of armed robbery, and there is no evidence supporting defendant's guilt of a lesser included offense, the trial court does not err by failing to instruct the jury on the lesser included offense of common law robbery. “The sole factor determining the judge's obligation to give such an instruction is thepresence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense.”

State v. Cummings, 346 N.C. 291, 325, 488 S.E.2d 550, 570 (1997), (citations omitted). Our Supreme Court has further stated
        that when the State offers evidence in an armed robbery case that the robbery was attempted or accomplished by the use or threatened use of what appeared to the victim to be a firearm or other dangerous weapon, evidence . . . that the witness or witnesses could not positively testify that the instrument used was in fact a firearm or dangerous weapon is not of sufficient probative value to warrant submission of the lesser included offense of common law robbery.

State v. Thompson, 297 N.C. 285, 289, 254 S.E.2d 526, 528 (1979) (emphasis added). Here, Stevenson testified that during the course of the robbery, he saw “something black come up” out of the corner of his eye. Stevenson could not tell whether it was a gun or a knife, but was of the opinion that it was a gun or a knife. Defendant offered no evidence to the contrary. Thus, we conclude the trial court did not err by refusing to instruct the jury on common law robbery. Accordingly, we find no error.
    No error .
    Chief Judge MARTIN and Judge McCULLOUGH concur.
     Report per Rule 30(e).

*** Converted from WordPerfect ***