Initially, we note defendant's brief contains arguments
supporting only four of the original nine assignments of error in
the record on appeal. The assignments of error for which no
arguments are made are deemed abandoned pursuant to N.C.R. App. P.
28(b)(6). Therefore, we limit our review to the assignments of
error properly preserved by defendant on appeal.
The issues on appeal are: (I) whether the trial court erred
by failing to instruct the jury on the offense of common law
robbery; (II) whether the trial court erred by failing to instruct
the jury on the offense of larceny from the person; and (III)
whether defendant was denied effective assistance of counsel for
the reasons that defense counsel failed to request instructions on
the two alleged lesser included offenses.
Defendant first contends the trial court “committed plain
error in failing to instruct the jury on the lesser included
offense of common law robbery[.]” We disagree. Rule 10(b)(2) of the Rules of Appellate Procedure requires
that a party must object to jury instructions before the jury
retires to consider its verdict in order to preserve the issue for
appellate review. Where the party fails to object at trial, this
Court may review the alleged error under the plain error rule. The
plain error rule
is always to be applied cautiously and only in
the exceptional case where, after reviewing
the entire record, it can be said the claimed
error is a fundamental error, something so
basic, so prejudicial, so lacking in its
elements that justice cannot have been done,
or where the error is grave error which
amounts to a denial of a fundamental right of
the accused, or the error has resulted in a
miscarriage of justice or in the denial to
appellant of a fair trial or where the error
is such as to seriously affect the fairness,
integrity or public reputation of judicial
proceedings or where it can be fairly said the
instructional mistake had a probable impact on
the jury's finding that the defendant was
guilty.
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(quotation and citation omitted). “A prerequisite to our engaging
in a 'plain error' analysis is the determination that the [trial
court's action] constitutes 'error' at all.”
State v. Torain, 316
N.C. 111, 116, 340 S.E.2d 465, 468,
cert. denied, 479 U.S. 836, 93
L.Ed. 2d 77 (1986).
“[A] defendant is entitled to have a lesser-included offense
submitted to the jury only when there is evidence to support it.”
State v. Johnson, 317 N.C. 193, 205, 344 S.E.2d 775, 782 (1986).
“Where the State's evidence is positive as to each element of the
offense charged and there is no contradictory evidence relating toany element, no instruction on a lesser included offense is
required.”
State v. Millsaps,
356 N.C. 556, 562, 572 S.E.2d 767,
772 (2002).
“The elements of robbery with a dangerous weapon are: (1) the
unlawful attempt to take or taking of personal property from a
person or presence, (2) by use or threatened use of a firearm or
other dangerous weapon, (3) whereby the life of the person is
threatened or endangered.”
State v. Gay, 151 N.C. App. 530, 532,
566 S.E.2d 121, 124 (2002) (citation omitted).
“Common law robbery is a lesser included offense of armed
robbery.”
State v. Porter, 303 N.C. 680, 686, 281 S.E.2d 377, 382
(1981). “The critical difference between armed robbery and common
law robbery is that the former is accomplished by the use or
threatened use of a dangerous weapon whereby the life of a person
is endangered or threatened.”
State v. Peacock, 313 N.C. 554, 562,
330 S.E.2d 190, 195 (1985). “[T]he trial judge is not required to
instruct on common law robbery when the defendant is indicted for
armed robbery if the uncontradicted evidence indicates that the
robbery was perpetrated by the use or threatened use of . . . a
dangerous weapon.”
Porter, 303 N.C. at 686-87, 281 S.E.2d at 382.
In the instant case, Nixon testified that he was outside the
BiLo counting his money and about to put the money in his pocket
when defendant came up to him. Nixon did not notice defendant's
approach until defendant was approximately two feet away from him.
Nixon noted defendant was holding a gun “to the side like he was
trying to conceal it but it was out in the open.” Defendant toldNixon to give him the money and Nixon gave defendant the money.
Nixon ran home to get to a safe place after the robbery before he
called the police.
Defendant argues the evidence at trial was equivocal as to the
possession, use, or threatened use of a dangerous weapon.
Specifically, defendant contends the State presented sufficient
evidence through the testimony of his former girlfriend, Tarrah
Clyburn, from which one can reasonably infer no gun was used during
the taking. Ms. Clyburn testified that when she asked him what
happened on the date in question, defendant told her “he asked the
guy did he have change for him and when the guy pulled it out he
did tell me he took it.” Clyburn also testified she had never seen
defendant with a gun even though defendant lived with her for some
months prior to the incident. Defendant states Clyburn's testimony
is evidence of “a 'flim-flam' as opposed to a robbery with a
dangerous weapon.” We conclude the testimony of Clyburn, if
believed, did not establish defendant's right to an instruction on
common law robbery.
Defendant also contends the evidence was conflicting with
regard to whether or not Nixon's life was threatened or endangered.
Defendant argues “it is clear that defendant did not point the gun
directly at Nixon or specifically threaten to use it on him.”
Defendant's argument is unpersuasive. A firearm is a dangerous
weapon
per se.
See State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d
370, 388 (1984);
State v. Ross, 31 N.C. App. 394, 395-96, 229
S.E.2d 218, 219 (1976),
disc. rev. denied and appeal dismissed, 291N.C. 715, 232 S.E.2d 206 (1977). “When a dangerous weapon is used
in a robbery, the law presumes that the victim's life was
threatened.”
State v. Pratt, 161 N.C. App. 161, 164, 587 S.E.2d
437, 439 (2003).
We conclude the State's evidence is positive for each element
of armed robbery. Defendant took cash from the person of Nixon
using a gun whereby Nixon's life was endangered or threatened. The
trial court did not err in failing to instruct the jury on common
law robbery. This assignment of error is overruled.
Defendant next argues that the trial court committed plain
error in failing to instruct the jury on the lesser included
offense of larceny from the person. Defendant contends there was
evidence that defendant took Nixon's money without using a weapon
and without putting Nixon in fear. Specifically, defendant
contends Clyburn's testimony that defendant “asked the guy did he
have change for him and when the guy pulled it out he did tell me
he took it” would support a finding by the jury that defendant took
the money from Nixon without possessing a firearm. We disagree.
Larceny is “the taking and carrying away of the property of
another without the owner's consent and with the intent to
permanently deprive the owner of his property.”
State v.
Washington, 142 N.C. App. 657, 660, 544 S.E.2d 249, 251 (2001).
“Larceny is a lesser included offense of robbery with a dangerous
weapon.”
State v. Cummings, 346 N.C. 291, 326, 488 S.E.2d 550, 571
(1997).
As stated
supra,
“[a] trial court must submit and instruct
the jury on a lesser included offense when, and only when, there isevidence from which the jury could find that defendant committed
the lesser included offense.”
State v. White, 322 N.C. 506, 512,
369 S.E.2d 813, 816 (1988) (citation and quotation omitted).
“The
test in every case involving the propriety of an instruction on a
lesser grade of an offense is not whether the jury could convict
defendant of the lesser crime, but whether the State's evidence is
positive as to each element of the crime charged and whether there
is any conflicting evidence relating to any of these elements.”
State v. Leroux, 326 N.C. 368, 378, 390 S.E.2d 314, 322,
cert.
denied, 498 U.S. 871, 112 L. Ed. 2d 155 (1990).
Application of the foregoing principles to the instant case
leads us to conclude the State introduced positive evidence as to
each essential element of the charge of robbery with a dangerous
weapon and the trial court did not err by failing to instruct the
jury on the lesser included offense of larceny. Accordingly, this
assignment of error is also overruled.
Lastly, we consider defendant's contention that he received
ineffective assistance of counsel. Defendant contends his trial
counsel's failure to request submission of the lesser included
offenses of common law robbery and larceny constitutes ineffective
assistance of counsel.
“When a defendant attacks his conviction on the basis that
counsel was ineffective, he must show that his counsel's conduct
fell below an objective standard of reasonableness.”
State v.
Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985). To meet
this burden, defendant must satisfy a two-part test: First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
'counsel' guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693
(1984). “If a reviewing court can determine at the outset that
there is no reasonable probability that in the absence of counsel's
alleged errors the result of the proceeding would have been
different, then the court need not determine whether counsel's
performance was actually deficient.”
Braswell, 312 N.C. at 563,
324 S.E.2d at 249.
In the case
sub judice, we have already concluded the trial
court did not err in failing to instruct the jury on the lesser
included offenses of common law robbery and larceny. Since there
is no merit to the contention it was error for the court to fail to
submit those charges to the jury, we also conclude trial counsel's
failure to request submission of the lesser included offenses did
not amount to ineffective assistance of counsel.
For the foregoing reasons, we hold defendant received a trial
free of prejudicial error.
No error.
Judges TYSON and JACKSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***