STATE OF NORTH CAROLINA
Lincoln County
v
.
Nos. 01 CRS 52476
02 CRS 1162
EDDIE LEE HARRISON
Attorney General Roy Cooper, by Assistant Attorney General
Kevin Anderson, for the State.
Ann B. Petersen, for defendant-appellant.
CALABRIA, Judge.
Eddie Lee Harrison (“defendant”) appeals from judgments
entered upon jury verdicts finding him guilty of robbery with a
dangerous weapon and conspiracy to commit robbery with a dangerous
weapon. We find no error.
On the afternoon of 12 December 2001, two men walked past the
Advance America Cash Advance Centers of North Carolina, Inc., d/b/a
Advance America #113 (“Cash Advance”), in the city of Lincolnton.
After walking past the Cash Advance, the men returned and entered
the building. At the time, Julia Banks (“Banks”) was the sole
employee on the premises.
One of the men approached the counter where Banks was sitting
and placed a gun on the counter. The other man went back to thefront door. At trial, Banks identified defendant as the man who
approached her at the counter. She identified another man, Charles
Worthy (“Worthy”), as the man who accompanied defendant and stood
by the front door. Banks' testimony was corroborated by Sharon
McMorris (“McMorris”) who worked at the Smokers' Depot, a store
located next door to Cash Advance. McMorris stated that defendant
entered her store to ask her for directions to Gastonia just before
he entered the Cash Advance. McMorris further identified Worthy as
the man accompanying defendant.
Once inside Cash Advance, Banks stated that although
defendant's arm obscured the gun, she noticed it was black and had
scratch marks on it. Defendant ordered Banks, who had picked up
the phone when she saw the men, to put the phone down. When she
told him she wasn't talking to anyone, he told her she was wasting
his time. Defendant then picked up his gun and cocked it, pulling
the hammer back. He ordered Banks to give him all the money, and
she emptied the money drawer containing $854.00.
When the two men left, Banks called 911. She reported seeing
the men leave in a tan Nissan Altima. McMorris also watched the
men leave, and a few minutes later saw a similar car traveling down
Highway 321 toward Gastonia. She noticed that the car's license
plate began with the letters PPT or PPN. McMorris gave this
information to Banks, who was on the phone with the police, and
Banks relayed the information to the police.
Two police officers responded to the call and observed a
vehicle occupied by two men that matched the description of the cargiven by Banks. The car's license plate was PPT1922. The officers
followed the car to one of the Gastonia exits and stopped the car.
The two men exited the car on their own, but got back in the car
and fled when they saw the officers displaying their badges and
guns. The officers chased the car through the streets of Gastonia
until the car turned right and collided with a stopped Corvette,
causing the car to overturn.
After the collision, Worthy exited the car and started
running, but was hit by the police car. One of the officers
tackled and arrested him. Defendant, who drove the wrecked car,
ran into a field of thickets. A police officer chased him there,
sprayed him with pepper spray and subdued him.
Following the arrests of defendant and Worthy, police searched
the car. Although no firearms were found, they did find a Daisy BB
pistol under the driver's seat. Banks went to the Lincolnton
Police Department and identified both defendant and Worthy as the
men who robbed her. Banks testified that the Daisy BB pistol
police found was not the weapon defendant used to rob her. No
other gun was ever found.
Following defendant's trial in Lincoln County Superior Court,
the jury returned verdicts finding defendant guilty of robbery with
a dangerous weapon and conspiracy to commit robbery with a
dangerous weapon. The trial court then entered judgment upon those
verdicts, sentencing defendant to a minimum of 117 months and a
maximum of 150 months in the North Carolina Department of
Correction on the robbery with a dangerous weapon charge and aminimum of 37 months and a maximum of 54 months on the conspiracy
to commit robbery with a dangerous weapon charge. The trial court
ordered the sentences to run consecutively. From those judgments,
defendant appeals.
On appeal, defendant argues the trial court erred by refusing
to instruct the jury in a clear and proper manner on the charge of
robbery with a dangerous weapon. Specifically, defendant contends
the jury instructions did not clarify the distinction between
robbery with a dangerous weapon and common law robbery. We
disagree.
Our statutes define robbery with a dangerous weapon as
follows:
Any person or persons who, having in
possession or with the use or threatened use
of any firearms or other dangerous weapon,
implement or means, whereby the life of a
person is endangered or threatened, unlawfully
takes or attempts to take personal property
from another or from any place of business,
residence or banking institution or any other
place where there is a person or persons in
attendance, at any time, either day or night,
or who aids or abets any such person or
persons in the commission of such crime, shall
be guilty of a Class D felony.
N.C. Gen. Stat. . 14-87 (2005). Common law robbery is robbery
without a firearm or other dangerous weapon and is punishable as a
Class G felony. N.C. Gen. Stat. . 14-87.1 (2005).
Prior to jury deliberations, defendant requested that the
court instruct the jury that in order to find him guilty of robbery
with a dangerous weapon, jurors must find that defendant used a
dangerous weapon which was likely to produce death or great bodilyinjury. He further requested an instruction that “the life of
Julia Banks must have, in fact, been endangered or threatened by a
dangerous weapon.” The trial court agreed to give the first
requested instruction, but declined to give the second proposed
instruction.
The trial court instructed the jury in the following manner:
In this case I charge for you to find the
Defendant guilty of Robbery with a Dangerous
Weapon, a Firearm, the State must prove seven
things beyond a reasonable doubt.
. . .
Sixth, that the Defendant had a dangerous
weapon in his possession at the time he
obtained the property. A dangerous weapon is
a weapon likely to cause death or great bodily
injury. A firearm is a deadly weapon _ or it
is a dangerous weapon. If you find beyond a
reasonable doubt, that it reasonably appeared
to Julia Banks that a firearm was being used,
in such case you may infer, but are not
required to infer, that the instrument was
what the Defendant's conduct represented it to
be. Seventh, that the Defendant obtained the
property by endangering or threatening the
life of Julia Banks with the dangerous weapon.
We have previously been confronted by cases where the nature
of the weapon was at issue. In State v. Allen, 317 N.C. 119, 124-
25, 343 S.E.2d 893, 897 (1986), our Supreme Court articulated the
following rules:
When a robbery is committed with what appeared
to the victim to be a firearm or other
dangerous weapon capable of endangering or
threatening the life of the victim and there
is no evidence to the contrary, there is a
mandatory presumption that the weapon was as
it appeared to the victim to be. If there is
some evidence that the implement used was not
a firearm or other dangerous weapon which
could have threatened or endangered the lifeof the victim, the mandatory presumption
disappears leaving only a permissive
inference, which permits but does not require
the jury to infer that the instrument used was
in fact a firearm or other dangerous weapon
whereby the victim's life was endangered or
threatened. If all the evidence shows the
instrument could not have been a firearm or
other dangerous weapon capable of threatening
or endangering the life of the victim, the
armed robbery charge should not be submitted
to the jury.
Id. (numerals omitted).
Here, there was conflicting evidence regarding the nature of
the weapon used. The only weapon recovered was the Daisy BB
pistol, but Banks flatly denied that the BB pistol was the weapon
used in the robbery. Under the framework established in Allen, the
conflicting nature of the evidence removed any mandatory inference
but left a permissive inference that the weapon used was in fact a
firearm. The trial court correctly stated that the jury could use
the permissive inference in this case.
Although the court's instruction focused in part on Banks'
subjective belief regarding the weapon used in the robbery, it did
so in the context of explaining the permissive inference. Further,
the court correctly instructed the jury that in order to find
defendant guilty of robbery with a dangerous weapon, it must
determine that “[d]efendant obtained the property by endangering or
threatening the life of Julia Banks with the dangerous weapon.” As
such, the court in substance gave defendant's proposed instruction.
No error.
Judges GEER and JACKSON concur.
Report per Rule 30(e)
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