Appeal by defendant from judgments entered 24 August 2004 by
Judge W. Douglas Albright in Forsyth County Superior Court. Heard
in the Court of Appeals 14 September 2005.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Fred C. Lamar, for the State.
M. Alexander Charns for defendant-appellant.
HUNTER, Judge.
Robert Denard Pollard (“defendant”) appeals from judgments
dated 24 August 2004 entered consistent with a jury verdict finding
him guilty of attempted robbery with a dangerous weapon and assault
with a deadly weapon inflicting serious injury. For the reasons
stated herein, we find no error in the trial, but remand for
resentencing.
The evidence tends to show that on 3 April 2004, defendant
entered an ABC Store located in Winston-Salem. While another
customer was being checked out by Anthony Tamer (“Tamer”), a clerk
working behind the counter in the store, defendant came around the
corner behind Tamer and reached into the cash register till, taking
a twenty dollar bill. Tamer reached for defendant's arm, but was only able to grasp
defendant's jacket sleeve, which began to slide off. Tamer called
for assistance from his co-worker, Coleman Hastings (“Hastings”),
as defendant attempted to leave the store. Hastings helped Tamer
wrestle defendant to the ground. Defendant bit Tamer in his
struggle to escape. Once defendant was subdued on the ground,
Hastings noticed that defendant had a pocketknife in his hand, and
that Tamer had blood on his back. Tamer did not see the knife
before defendant took the money from the cash register. Tamer
received treatment for the wound and the bite at Baptist Hospital.
The knife in question was introduced into evidence and a videotape
of the incident which showed defendant stabbing Tamer was shown to
the jury.
Defendant presented no evidence. Defendant was convicted of
both charges and was sentenced to consecutive sentences of 117 to
150 months for attempted robbery with a dangerous weapon and forty-
six to sixty-five months for assault with a deadly weapon
inflicting serious injury. The trial court recommended that both
sentences run at the expiration of a federal sentence which had not
yet been activated. Defendant appeals.
I.
Defendant first contends the trial court erred in failing to
instruct the jury as to the lesser-included offenses of attempted
common law robbery and larceny of the person. We disagree.
The trial judge must charge on a lesser
included offense if: (1) the evidence is
equivocal on an element of the greater offense
so that the jury could reasonably find eitherthe existence or the nonexistence of this
element; and (2) absent this element only a
conviction of the lesser included offense
would be justified.
State v. Whitaker, 307 N.C. 115, 118, 296 S.E.2d 273, 274 (1982).
However, “[t]he trial court may decline to submit the lesser
offense to the jury if 'the State's evidence is positive as to each
element of the crime charged' and there is no 'conflicting evidence
relating to any of [the] elements.'”
State v. Ray, 149 N.C. App.
137, 146, 560 S.E.2d 211, 217 (2002) (citation omitted).
A. Attempted Common Law Robbery
Defendant concedes that no request was made for the lesser-
included offense of common law robbery and that no objection was
made to the instruction for attempted robbery with a dangerous
weapon. Defendant therefore appropriately requests this Court
review the instructions for plain error.
See State v. Collins,
334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993). To reach the level of
plain error, “the error in the trial court's jury instructions must
be 'so fundamental as to amount to a miscarriage of justice or
which probably resulted in the jury reaching a different verdict
than it otherwise would have reached.'”
Id. (citations omitted).
Defendant, citing
State v. Smallwood, 78 N.C. App. 365, 337
S.E.2d 143 (1985), argues that the trial court should have
submitted a common law robbery instruction to the jury because the
evidence did not compel a finding that the weapon used was a
dangerous weapon as a matter of law. Defendant contends that
factual issues existed as to whether the knife was a deadly weapon
and as to whether a weapon was used in the attempted robbery. “The essential elements of attempted armed robbery, as set
forth in G.S. sec. 14-87(a), are: (1) the unlawful attempted
taking of personal property from another; (2) the possession, use
or threatened use of a firearm or other dangerous weapon, implement
or means; and (3) danger or threat to the life of the victim.”
State v. Rowland, 89 N.C. App. 372, 376, 366 S.E.2d 550, 552
(1988). “Common law robbery is a lesser included offense of armed
robbery.”
Smallwood, 78 N.C. App. at 370, 337 S.E.2d at 146.
Although our Supreme Court has recognized that “[a]
pocketknife is . . . unquestionably capable of causing serious
bodily injury or death[,]”
State v. Sturdivant, 304 N.C. 293, 301,
283 S.E.2d 719, 726 (1981), it is the “circumstances of the case,
rather than the physical description of the knife itself, [which]
ultimately determine this issue.”
Smallwood, 78 N.C. App. at 368,
337 S.E.2d at 145. In
Smallwood, the Court noted that the knife in
question was not introduced into evidence and no physical injury
had occurred. The Court further noted that contradictory evidence
was offered as to whether the knife was used in the robbery.
Smallwood recognized authority that the determination of whether a
knife was a deadly weapon was solely for the court when the weapon
had been “either introduced into evidence or described in detail
without contradiction.”
Id. at 369, 337 S.E.2d at 145.
Smallwood
also stated that a knife was a dangerous weapon
per se, absent
production of the knife or a detailed description, when the victim
had in fact suffered serious bodily injury or death.
Id. Because
in
Smallwood neither the knife itself nor evidence of seriousinjury was presented to the trial court, and contradictory evidence
was given as to the use of the knife, the Court held that the issue
of whether the knife was a deadly weapon was a question for the
jury to resolve, and determined under those facts that the jury
should have been instructed on the lesser-included offense of
common law robbery.
Id. at 371, 337 S.E.2d at 146.
The Court's holding in
Smallwood is distinguishable on its
facts from the instant case. Here, the State introduced into
evidence the pocketknife used by defendant to stab Tamer. Further,
Tamer's injuries were sufficiently serious to require hospital
treatment. Under the circumstances of the case, the trial court
did not err in finding the knife was a dangerous weapon.
Smallwood, 78 N.C. App. at 369, 337 S.E.2d at 145.
Additionally, the evidence shows that defendant's use of the
knife was part of the transaction of the attempted robbery. In
State v. Bellamy, 159 N.C. App. 143, 582 S.E.2d 663,
cert. denied,
357 N.C. 579, 589 S.E.2d 130 (2003), the defendant entered a video
store and stole two adult videos and a donation can.
Id. at 145,
582 S.E.2d at 665. The defendant made no threats and did not
display a weapon to the clerks in the store.
Id. One of the
clerks gave chase when the defendant left without paying for the
videos, ending at the entrance to a dead-end road approximately
twenty feet from the store.
Id. The defendant then produced a
pocketknife, brandished it at the clerk, and asked “'[y]ou want a
piece of this?'”
Id. The Court in
Bellamy stated “'the exact time
relationship, in armed robbery cases, between the violence and theactual taking is unimportant as long as there is one continuing
transaction[,]'” and that “'the taking is not over until after the
thief succeeds in removing the stolen property from the victim's
possession.'”
Id. at 149, 582 S.E.2d at 668 (citations omitted).
Because “[d]efendant's brandishing of a weapon . . . was necessary
to complete the taking of the videos,”
Bellamy held that the
“taking and threatened use of force was so joined by time and
circumstances so as to constitute a single transaction.”
Id.
Similarly, here Tamer attempted to stop defendant immediately
after he took the money, and defendant was still inside the
premises when he used the pocketknife to assault Tamer in an
attempt to effectuate his escape. Defendant's taking of the money
and use of force in stabbing Tamer with a pocketknife were joined
by time and circumstance so as to constitute a single transaction.
Therefore, evidence that the knife was used as a weapon during the
course of the robbery was presented to the trial court.
Uncontradicted evidence was presented that the knife was used
as a weapon in the course of the robbery, and the circumstances of
the case support the trial court's finding, as a matter of law,
that the knife was a dangerous weapon. We therefore find no error
in the trial court's failure to instruct the jury on the lesser-
included offense of common law robbery, and do not reach a plain
error analysis.
B. Larceny from the Person
Defendant also contends that the trial court erred in failing
to give the requested instruction for the lesser-included offense
of larceny from the person.
As discussed supra, the evidence was uncontradicted that
defendant used a knife during the course of the robbery to stab
Tamer. As positive evidence was presented as to each element of
the crime of robbery with a dangerous weapon, the trial court did
not err in refusing to instruct the jury on the lesser-included
offense of larceny from the person. This assignment of error is
without merit.
II.
Defendant next contends that the trial court committed
reversible error by peremptorily instructing the jury that a knife
is a deadly weapon over the objection of defense counsel. We
disagree.
It has long been the law of this state
that “[w]here the alleged deadly weapon and
the manner of its use are of such character as
to admit of but one conclusion, the question
as to whether or not it is deadly . . . is one
of law, and the Court must take the
responsibility of so declaring.”
State v. Torain, 316 N.C. 111, 119, 340 S.E.2d 465, 470 (1986)
(citations omitted).
For the reasons discussed supra in Section I, we find that the
trial court, under the circumstances of the case, properly
concluded as a matter of law that the knife used was a deadly
weapon. This assignment of error is without merit.
III.
Defendant next contends that the trial court committed
reversible error by instructing the jury that the temporal order of
using a weapon was immaterial on the attempted robbery with a
dangerous weapon charge. We disagree.
Our Supreme Court has addressed the issue of the temporal
nature of use in a charge of robbery or attempted robbery with a
dangerous weapon. In State v. Green, 321 N.C. 594, 365 S.E.2d 587
(1988), the Supreme Court held:
The commission of armed robbery as defined by
N.C.G.S. § 14-87(a) does not depend upon
whether the threat or use of violence precedes
or follows the taking of the victims'
property. Where there is a continuous
transaction, the temporal order of the threat
or use of a dangerous weapon and the takings
is immaterial. Further, provided that the
theft and the force are aspects of a single
transaction, it is immaterial whether the
intention to commit the theft was formed
before or after force was used upon the
victims.
Id. at 605, 365 S.E.2d at 594 (citations omitted).
As discussed supra, the evidence presented in the instant case
showed that defendant's use of the weapon was a part of the
continuous transaction of the robbery, and therefore “the temporal
order of the threat or use of a dangerous weapon and the takings is
immaterial.” Id. This assignment of error is without merit.
IV.
Defendant next contends the trial court erred as a matter of
law in not granting defendant's motion to dismiss both charges due
to insufficient evidence. We disagree. The substantial evidence test is the appropriate standard of
review for a motion to dismiss based on insufficiency of the
evidence. “'“The substantial evidence test requires a
determination that there is substantial evidence (1) of each
essential element of the offense charged, and (2) that the
defendant is the perpetrator of the offense.”'” State v. Buff, ___
N.C. App. ___, ___, 612 S.E.2d 366, 370 (2005) (citations omitted).
In ruling on a motion to dismiss, the evidence must be considered
in the light most favorable to the State. Id.
As discussed supra, defendant was charged with attempted
robbery with a dangerous weapon. The elements of robbery with a
dangerous weapon are: “(1) the unlawful attempted taking of
personal property from another; (2) the possession, use or
threatened use of a firearm or other dangerous weapon, implement or
means; and (3) danger or threat to the life of the victim.”
Rowland, 89 N.C. App. at 376, 366 S.E.2d at 552. Defendant
contends that insufficient evidence was offered that the knife was
a dangerous weapon.
For the reasons stated supra in Sections I and II, we find,
when taken in the light most favorable to the State, sufficient
evidence was presented that the knife used in the course of the
robbery was a deadly weapon.
Defendant was also charged with assault with a deadly weapon
inflicting serious injury. “The essential elements of the charge
of assault with a deadly weapon inflicting serious injury are (1)
an assault (2) with a deadly weapon (3) inflicting serious injury(4) not resulting in death.” State v. McCree, 160 N.C. App. 200,
205-06, 584 S.E.2d 861, 865 (2003); N.C. Gen. Stat. § 14-32(b)
(2003). Defendant contends insufficient evidence was offered that
the knife was a deadly weapon and that a serious injury was
inflicted.
As discussed supra, sufficient evidence was presented that the
knife used in the course of the robbery was a deadly weapon. We
therefore turn to defendant's contention that insufficient evidence
of serious injury was shown.
“The term 'serious injury' as employed in N.C.G.S. § 14-32(a)
means physical or bodily injury resulting from an assault with a
deadly weapon.” State v. James, 321 N.C. 676, 688, 365 S.E.2d 579,
586 (1988). A determination of whether a serious injury has
occurred must be determined according to the facts of each case.
Id. at 688, 365 S.E.2d at 586-87. Factors such as
“'hospitalization, pain, loss of blood, and time lost at work'” may
be considered in determining whether an injury is serious. State
v. Alexander, 337 N.C. 182, 189, 446 S.E.2d 83, 87 (1994)
(citations omitted).
Cases that have addressed the issue of
the sufficiency of evidence of serious injury
appear to stand for the proposition that as
long as the State presents evidence that the
victim sustained a physical injury as a result
of an assault by the defendant, it is for the
jury to determine the question of whether the
injury was serious.
Id.
Here, evidence was presented that the victim, Tamer, sustained
a physical injury, a knife wound in the back which was treated ata hospital. Further, Tamer testified that soreness from the injury
continued for about a week. As sufficient evidence of physical
injury was presented by the State to reach the jury, the trial
court properly denied defendant's motion to dismiss both charges
for insufficient evidence.
V.
Defendant next contends the trial court erred in aggravating
defendant's sentence by a fact not set out in the indictment and
determined by the jury beyond a reasonable doubt. We disagree.
Defendant contends that the trial court's increase in
defendant's prior record level points for commission of the crime
during probation, which defendant concedes did not increase his
prior record level, is an aggravating factor not submitted to the
jury in violation of defendant's Sixth Amendment rights.
In State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005), our
Supreme Court considered North Carolina's structured sentencing
laws in light of the recent United States Supreme Court decisions
in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004),
and Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000).
The Supreme Court of North Carolina held that, “[a]pplied to North
Carolina's structured sentencing scheme, the rule of Apprendi and
Blakely is: Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed
presumptive range must be submitted to a jury and proved beyond a
reasonable doubt.” Allen, 395 N.C. at 437, 615 S.E.2d at 264-65. Here, defendant had twelve points from prior felony
convictions. The trial court added an additional point for
commission of an offense on post-release supervision, for a total
of thirteen points. As defendant's prior record points were
between nine and fourteen, defendant was sentenced as a Prior
Record Level IV. The trial court then made no findings of
aggravating or mitigating factors and sentenced defendant within
the presumptive range. As defendant was sentenced within the
presumptive range, this assignment of error is without merit.
VI.
Defendant next contends trial counsel provided ineffective
assistance in the course of the trial. We disagree.
“Attorney conduct that falls below an objective standard of
reasonableness and prejudices the defense denies the defendant the
right to effective assistance of counsel.” State v. Fair, 354 N.C.
131, 167, 557 S.E.2d 500, 525 (2001). “An [ineffective assistance
of counsel] claim must establish both that the professional
assistance defendant received was unreasonable and that the trial
would have had a different outcome in the absence of such
assistance.” Id.
Defendant concedes that an ineffective assistance of counsel
claim cannot be raised at this time based on the record. Defendant
argues that the trial counsel's ineffective assistance cannot be
determined because of the lack of complete recordation of jury
selection, bench conferences, and arguments of counsel. When the merits of an ineffective assistance claim cannot be
determined by the cold record, ancillary proceedings such as an
evidentiary hearing may be required. “In this situation the
appropriate remedy, if any, is for a defendant to file, either
before or after direct appeal, a motion for appropriate relief in
the superior court based upon ineffective assistance of counsel
pursuant to N.C.G.S. § 15A-1415(b)(3).” State v. House, 340 N.C.
187, 196-97, 456 S.E.2d 292, 297 (1995). We, therefore, dismiss
this claim without prejudice to defendant's right to file a motion
for appropriate relief.
VII.
Defendant next contends the trial court committed plain error
in its instructions to the jury as to the standard of proof. We
disagree.
As discussed supra, for a trial court's jury instructions to
reach the level of plain error, the error “must be 'so fundamental
as to amount to a miscarriage of justice or which probably resulted
in the jury reaching a different verdict than it otherwise would
have reached.'” Collins, 334 N.C. at 62, 431 S.E.2d at 193
(citations omitted).
Here, defendant contends that the trial court's use of the
North Carolina Criminal Pattern Jury Instruction 101.36 provided a
lower standard of proof to the jury than reasonable doubt. The
trial court instructed the jury:
I charge you that the highest aim of every
legal contest is the ascertainment of the
truth. Somewhere within the facts of every
case the truth abides. And where truth isjustice steps in garbed in its robes and tips
the scale. Now, in this case you have no
friend to reward, you have no anger to appease
or sorrow to assuage. Yours is a solemn duty
to let your verdict speak the everlasting
truth.
In State v. Garner, 330 N.C. 273, 410 S.E.2d 861 (1991), our
Supreme Court considered the challenge that the trial court's use
of N.C.P.I. Crim. 101.36 permitted jurors to convict the defendant
using a lower standard than reasonable doubt. Id. at 296, 410
S.E.2d at 874. The Garner Court held that the instruction was
proper when construed as a whole, as the trial court had previously
instructed the jury as to the standard of reasonable doubt, and had
defined the term reasonable to the jury. Id.
Similarly here, the trial court gave the pattern jury
instructions verbatim after instructing the jury as to the standard
of reasonable doubt and reiterated the standard of proof throughout
the instructions. Defendant fails to show any possibility that the
trial judge confused the jurors concerning the reasonable doubt
standard. This assignment of error is without merit.
VIII.
Defendant finally contends the trial court erred as a matter
of law in imposing a consecutive sentence to a federal sentence
that was not yet activated. We agree.
N.C. Gen. Stat. § 15A-1354(a) (2003) states that:
When multiple sentences of imprisonment are
imposed on a person at the same time or when a
term of imprisonment is imposed on a person
who is already subject to an undischarged term
of imprisonment, including a term of
imprisonment in another jurisdiction, thesentences may run either concurrently or
consecutively, as determined by the court.
Id. In interpreting section 15A-1354 in State v. Campbell, 90 N.C.
App. 761, 370 S.E.2d 79 (1988), this Court stated, “[i]t is clear
from the reading of G.S. 15A-1354(a) that the statutory language
does not mean any term of imprisonment to which defendant might
become subject in the future.” Id. at 763, 370 S.E.2d at 80.
Campbell held that at the time of sentencing, defendant's sentence
could only be ordered to “run consecutively or concurrently with
any undischarged term of imprisonment to which defendant was
'already' subject at that time[,]” not to a sentence imposed more
than a year after the first sentence. Id.
Here, the record shows that defendant was on probation for a
federal felony conviction at the time he committed the crimes at
issue in the instant case. The State informed the trial court that
defendant's federal probation officer intended to seek a
reinstatement of defendant's federal sentence, but that such action
had not yet been taken. The trial court then instructed that
defendant's sentences for the instant crimes run “at expiration of
Federal bank robbery case # 1:98CR207-1.” As the record reflects
that defendant was not already subject to an undischarged term of
imprisonment at the time his sentences in the instant case were
entered, we remand for resentencing as to the date of the
commencement of defendant's sentences.
We find the trial court did not err in instructing the jury,
or in denying defendant's motion to dismiss for insufficient
evidence, and dismiss defendant's assignment of error as toineffective assistance without prejudice. We remand, however, for
resentencing as to the date of the commencement of defendant's
sentences.
Remanded for resentencing.
Judges TYSON and STEELMAN concur.
Report per Rule 30(e).
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