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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1492

NORTH CAROLINA COURT OF APPEALS

Filed: 21 August 2007

STATE OF NORTH CAROLINA
                                Lincoln County
v .                             Nos. 01 CRS 52476                    
                                    02 CRS 1162    
EDDIE LEE HARRISON                     

    Appeal by defendant from judgments entered 15 May 2002 by Judge Richard D. Boner in Lincoln County Superior Court. Heard in the Court of Appeals 6 June 2007.

    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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