Opinion
No. COA10-24
Filed 6 July 2010 This case not for publication
Appeal by defendant from judgment entered 28 July 2009 by Judge Forrest D. Bridges in Cleveland County Superior Court. Heard in the Court of Appeals 14 June 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Anne J. Brown, for the State. William B. Gibson for defendant-appellant.
Cleveland County No. 08 CRS 5297.
The trial court properly submitted the charge of robbery with a dangerous weapon to the jury. The trial court properly instructed the jury that the State was not required to prove that defendant actually displayed the weapon in order for the jury to find defendant guilty of robbery with a dangerous weapon.
I. Factual and Procedural Background
On 20 December 2008, Daniel Funchess (Funchess) left work at about 11:30 p.m. with a co-worker. They stopped to have a drink, and then Funchess walked to another friend's apartment. Funchess left the apartment at about 3:00 a.m. and began walking home. A bicyclist passed Funchess and pulled into a parking lot further up the road. As Funchess walked past the lot, he and the cyclist exchanged greetings. After walking another twenty or thirty feet, Funchess was struck on the left side of his head and fell down.
Funchess' attacker stood over him, held him by the throat, and demanded his money. At trial, Funchess identified Joshua Clint Bramlett (defendant) as the bicyclist and his attacker. Funchess initially pretended to not have any money, but testified that defendant responded, "'I have a knife,[] give me your money, or I'll cut your throat,['] basically." Funchess believed defendant's threat, and responded by giving defendant a $100.00 bill because "[he] didn't want to end up with [his] throat cut, lying on [the street]." On cross-examination, Funchess testified that he never saw a knife or other weapon during the attack. After taking Funchess' money, defendant got back on his bicycle and fled.
Funchess used his cell phone to call 911. Officer Michael Fussell, Jr. (Officer Fussell) responded to the call. Officer Fussell found Funchess bleeding from cuts he had sustained during the attack. Funchess described defendant and his bicycle to Officer Fussell. Officer Fussell informed other officers of defendant's description and subsequently spoke to Funchess again after he was treated in the hospital. As Officer Fussell left the hospital, he was notified that other officers had found defendant. When Officer Fussell arrived, he found a knife and hatchet attached to defendant's bicycle, and a $100.00 bill in defendant's possession. When the officers took defendant to the police department, defendant removed another knife from his pocket, as well as a small bag of marijuana. Defendant told the officers that he only intended to scare Funchess because he thought he was drunk, and he picked up "what he thought was a dollar bill" when he saw it on the ground. Defendant denied using a weapon in the attack.
Defendant was indicted for the felony of robbery with a dangerous weapon, to wit, a knife. The trial court submitted robbery with a dangerous weapon and the lesser-included offense of common law robbery to the jury. Defendant was found guilty of robbery with a dangerous weapon and was sentenced to 73-97 months imprisonment with a credit for 219 days spent in confinement awaiting trial.
Defendant appeals.
II. Sufficiency of the Evidence
In defendant's first argument, he contends that the trial court erred by denying his motion to dismiss the armed robbery charge because the State failed to present sufficient evidence that defendant employed a dangerous weapon. We disagree.
A. Standard of Review
"When a defendant moves for dismissal, the trial court is to determine whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant's being the perpetrator of the offense. If so, the motion to dismiss is properly denied." State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-652 (1982) (citation omitted). "[E]ssential facts can be proved by circumstantial evidence where the circumstance raises a logical inference of the fact to be proved and not just a mere suspicion or conjecture." State v. Boomer, 33 N.C. App. 324, 327, 235 S.E.2d 284, 286 (1977) (citing State v. Delk, 212 N.C. 631, 194 S.E. 94 (1937)), cert. denied, 293 N.C. 254, 237 S.E.2d 536 (1977). "The trial court must review the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom." State v. Squires, 357 N.C. 529, 535, 591 S.E.2d 837, 841 (2003) (citation omitted), cert. denied, 541 U.S. 1088, 159 L. Ed. 2d. 252 (2004).
B. Robbery With a Dangerous Weapon
"Armed robbery has the following essential elements: (1) the 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. Willis, 127 N.C. App. 549, 551, 492 S.E.2d 43, 44 (1997). "A dangerous or deadly weapon 'is generally defined as any article, instrument or substance which is likely to produce death or great bodily harm.'" State v. Wiggins, 78 N.C. App. 405, 406, 337 S.E.2d 198, 199 (1985) (quoting State v. Sturdivant, 304 N.C. 293, 301, 283 S.E.2d 719, 725 (1981)). "'Whether an instrument is a dangerous weapon or a firearm can only be judged by the victim of a robbery from its appearance and the manner of its use.'" State v. Quick, 60 N.C. App. 771, 772-73, 299 S.E.2d 815, 816 (1983) (quoting State v. Thompson, 297 N.C. 285, 288, 254 S.E.2d 526, 528 (1979)).
In the instant case, the State presented substantial evidence that defendant "used or threatened to use" a dangerous weapon. Viewed in the light most favorable to the State, the evidence shows (1) that defendant knocked Funchess down, and then stood over him and held him by the throat; (2) defendant demanded money from Funchess; (3) defendant told Funchess that he had a knife, and threatened to cut his throat if Funchess did not give defendant his money; and (4) Funchess gave defendant a $100.00 bill. When officers apprehended defendant a short time later, he had a $100.00 bill, as well as two knives and a hatchet. Funchess testified that he believed defendant's threat because "[defendant] had already assaulted me . . . and he seemed very serious about it."
This Court has stated, "it is not necessary for the State to prove that the defendant displayed the firearm to the victim. Proof of armed robbery requires that the victim reasonably believed that the defendant possessed, or used or threatened to use a firearm in the perpetration of the crime." State v. Bartley, 156 N.C. App. 490, 496, 577 S.E.2d 319, 323 (2003) (citation and quotation omitted). We hold that a jury could reasonably conclude that defendant robbed Funchess by the threatened use of a knife, that Funchess reasonably believed defendant possessed a knife, and that the knife was a deadly weapon. The trial court properly denied defendant's motion to dismiss the armed robbery charge.
This argument is without merit.
III. Special Jury Instructions
Defendant's second, third and fourth arguments pertain to a request for a special jury instruction by the State, which was given by the trial court. Defendant contends that the trial court erred in giving the instruction when it was not submitted in writing, that the trial court abused its discretion in giving the instruction to the prejudice of defendant, and that his trial counsel was ineffective in failing to renew her objection to the instruction. We disagree and address these arguments together.
A. Submission of Request for Special Instructions in Writing
Generally, requests for special jury instructions must be submitted in writing. N.C. Gen. Stat. § 1-181(a)(1)(2009). "Where a requested instruction is not submitted in writing . . . it is within the discretion of the court to give or refuse such instruction." State v. Harris, 67 N.C. App. 97, 102, 312 S.E.2d 541, 544, appeal dismissed and disc. review denied, 311 N.C. 307, 317 S.E.2d 905 (1984).
We discern no abuse of discretion by the trial court in giving the instruction, even though it was not in writing.
B. Instruction on Display of Deadly Weapon
"While the court is not required to give the instruction in the exact language of the request, if [a] request [is] made for a specific instruction, which is correct in itself and supported by evidence, the court must give the instruction at least in substance." State v. Hooker, 243 N.C. 429, 431, 90 S.E.2d 690, 691 (1956) (citations omitted). "The proffered instruction must also contain a correct legal request and be pertinent to the evidence and the issues of the case." State v. Scales, 28 N.C. App. 509, 513, 221 S.E.2d 898, 901 (citation omitted), disc. review denied, 289 N.C. 619, 223 S.E.2d 395 (1976).
During the charge conference, the prosecutor requested that the trial court give the jury the following special instruction:
To obtain a conviction for armed robbery [it is] not necessary for the State to prove that the Defendant displayed the weapon to the victim. The State need only prove that the Defendant represented that he had a weapon and that circumstances led the victim reasonably to believe that the Defendant had a weapon and might use it.
The pattern jury instructions define the sixth and seventh elements of robbery with a dangerous weapon as:
Sixth, that the Defendant had a dangerous weapon in his possession at the time he obtained the property, or that it reasonably appeared to the victim that a dangerous weapon was being used, in which case you may infer that the instrument was what the Defendant's conduct represented it to be. And I instruct you that a dangerous weapon simply means any weapon which is likely to cause death or serious bodily injury.
. . . .
And the seventh element is that the Defendant obtained the property by endangering or threatening the life of the alleged victim with that dangerous weapon.
N.C.P.I., Crim. 217.30.
The trial court gave these instructions to the jury and inserted the requested special instruction between the sixth and seventh elements:
I instruct you also that in order for you to find the Defendant guilty of armed robbery, or robbery with a dangerous weapon, it is not necessary for the State to prove that the Defendant displayed the weapon to the victim. The State need only prove that the Defendant represented that he had a weapon, and that circumstances led the victim reasonably to believe that the Defendant had a weapon and might use it.
As we have previously discussed in section II(B), supra, the special instruction is a correct statement of the law. See Bartley, 156 N.C. App. at 496, 577 S.E.2d at 323. Further, the special instruction provides additional guidance by informing the jury that the State is not required to prove that Funchess saw a weapon in the course of the robbery, a question raised by the facts of this case. We hold that the special instruction was a proper clarification of the legal and factual issues particular to this case. The trial court did not abuse its discretion by giving the prosecutor's requested special instruction to the jury.
C. Ineffective Assistance of Counsel
Having found no merit in defendant's arguments relating to the special jury instruction, we conclude that defendant cannot demonstrate any prejudice from trial counsel's failure to renew her objection to the instruction. See State v. Braswell, 312 N.C. 553, 562-63, 324 S.E.2d 241, 248 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984).
NO ERROR.
Judges HUNTER, ROBERT C. and BRYANT concur.
Reported per Rule 30(e).