Opinion
No. COA03-357
Filed July 20, 2004 This case not for publication
Appeal by defendant from judgment entered 21 August 2002 by Judge E. Lynn Johnson in Cumberland County Superior Court. Heard in the Court of Appeals 26 April 2004.
Roy A. Cooper, III, Attorney General, by Gary R. Govert, Special Deputy Attorney General, for the State. Anne Bleyman, for defendant-appellant.
Cumberland County No. 01 CRS 063276.
Defendant appeals from a judgment imposing an active sentence entered upon his convictions by a jury of robbery with a dangerous weapon and for being an habitual felon. The evidence presented at trial tended to show that on 13 October 2001, Kenneth Drake, a banquet cook at the Bordeaux Holiday Inn in Fayetteville, North Carolina, was riding his bicycle home from work when a person on the street called out to him and asked him if he would like to buy some drugs. Mr. Drake motioned that he was not interested. A few moments later he noticed that the same person who had called out to him was following him on a small dirt bike. The person on the dirt bike, later identified as defendant, rammed into Mr. Drake, causing him to fall from his bicycle. At the time of the incident, Mr. Drake was wearing a "fanny pack" which snapped and also fell to the ground. Both men reached for the "fanny pack," but Mr. Drake let go when defendant began slashing at him with a box cutter. During this confrontation, Mr. Drake testified that some of defendant's friends, who were communicating with defendant and encouraging the confrontation, came over and took his bicycle.
Realizing that both his "fanny pack" and his bicycle were gone, Mr. Drake proceeded to walk to a nearby convenience store to call for help. He asked to use the telephone, but the convenience store owner stated that he did not have a telephone. As Mr. Drake walked out of the store, he spotted the defendant walking into the store with the "fanny pack" over his shoulder. He followed the defendant into the store and told the store owner that the man with the "fanny pack" was the person who just robbed him. Upon making this statement, a man inside the store identified himself as the defendant's uncle. Mr. Drake began having a conversation with the man and agreed to follow him to a house where defendant's mother lived. At the house, Mr. Drake talked with a woman who identified herself as defendant's mother, and he eventually agreed to come back the next morning to retrieve his property. However, when he returned to the house the next morning, he was still unable to retrieve his property. At this point, Mr. Drake went to the police station and reported the incident. Based on the information provided by Mr. Drake, including the address of the house where defendant's mother reportedly lived, defendant was arrested on 24 October 2001.
On 25 March 2002, defendant was indicted for robbery with a dangerous weapon and for being an habitual felon. Defendant did not testify at trial, nor did he present any evidence. A jury found defendant guilty of robbery with a dangerous weapon and of being an habitual felon. Due to his habitual felon status, he was sentenced as a Class C offender in the presumptive range for robbery with a dangerous weapon, receiving an active term of imprisonment for a minimum of 151 months and a maximum of 191 months.
Defendant presents arguments to support five of the ten assignments of error contained in the record on appeal. The remaining assignments of error are deemed abandoned. N.C.R. App. P. 28(a).
Defendant first assigns error to the trial court's denial of his motion to dismiss the charge of robbery with a dangerous weapon. The trial court must grant a defendant's motion to dismiss if the State fails to present "substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense." State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). "In determining the sufficiency of the evidence we consider it in the light most favorable to the State." Id. The elements of robbery with a dangerous weapon are set forth in N.C. Gen. Stat. § 14-87 (2003). Our Supreme Court stated in State v. Joyner, 295 N.C. 55, 243 S.E.2d 367 (1978):
[T]he essentials of the offense set forth in G.S. 14-87 are (1) the unlawful taking or attempted taking of personal property from another; (2) the possession, use or threatened use of `firearms or other dangerous weapon, implement or means'; and (3) danger or threat to the life of the victim.
Id. at 63, 243 S.E.2d at 373.
Defendant first argues there was insufficient evidence to establish that the box cutter used by defendant was a dangerous weapon because (1) the box cutter was not described in detail; (2) it was not admitted into evidence; and (3) the victim suffered no injuries. We disagree.
"North Carolina has recognized box cutters to be dangerous weapons as a matter of law." State v. Pratt, 161 N.C. App. 161, 164, 587 S.E.2d 437, 439 (2003). In this case, the uncontradicted evidence presented at trial showed that defendant and the victim struggled to take possession of the victim's "fanny pack," and in an attempt to make the victim let go of the pack, defendant slashed at him with what appeared to be a "straight, regular box razor." The victim further testified that he clearly saw a razor coming out the end of the box cutter. Such evidence, without more, is clearly sufficient to establish an inference that the instrument used by the defendant was indeed a box cutter, and that the box cutter was a dangerous weapon. See State v. Allen, 317 N.C. 119, 123, 343 S.E.2d 893, 896 (1986) ("When a person perpetrates a robbery by brandishing an instrument which appears to be a firearm, or other dangerous weapon, in the absence of any evidence to the contrary, the law will presume the instrument to be what his conduct represents it to be — a firearm or other dangerous weapon.") (internal quotation omitted).
We also reject defendant's argument that there was insufficient evidence to show that the victim's life was in fact endangered or threatened. "The question in a [robbery with a dangerous weapon] case is whether a person's life was in fact endangered or threatened by defendant's possession, use or threatened use of a dangerous weapon, not whether the victim was scared or in fear of his life." State v. Joyner, 295 N.C. 55, 63, 243 S.E.2d 367, 373 (1978). The uncontradicted evidence showed that defendant slashed at the victim with a box cutter. Such evidence is sufficient to establish an inference that the victim's life was in fact endangered or threatened. See Pratt, 161 N.C. App. at 164, 587 S.E.2d at 439. ("When a dangerous weapon is used in a robbery, the law presumes that the victim's life was threatened.") Defendant's assignment of error is overruled.
Defendant next argues the trial court erred by failing to instruct the jury on the lesser-included offenses of common law robbery and larceny. "As a general rule, when there is evidence of a defendant's guilt of a crime which is a lesser included offense of the crime stated in the bill of indictment, the defendant is entitled to have the trial judge submit an instruction on the lesser included offense to the jury." State v. Tarrant, 70 N.C. App. 449, 451, 320 S.E.2d 291, 293 (1984).
In this case, the evidence was uncontradicted that defendant slashed at the victim with what appeared to be a box cutter during the robbery. Our courts have held that where "the uncontradicted evidence indicates that the robbery, if perpetrated, was accomplished by the use of what appeared to be a dangerous weapon," the trial judge is not required to submit an instruction on the lesser included offense of common law robbery. Id. at 451-52, 320 S.E.2d at 294. Thus, the trial court did not err in failing to instruct the jury as to common law robbery.
Our courts have also held that "[w]hen a dangerous weapon is used in a robbery, the law presumes that the victim's life was threatened." Pratt, 161 N.C. App. at 164, 587 S.E.2d at 439. Since the evidence is uncontradicted that the robbery, if perpetrated, was perpetrated by the use of what appeared to be a dangerous weapon, there is also no evidence to support a charge for larceny. See State v. White, 322 N.C. 506, 516, 369 S.E.2d 813, 818 (1988) (armed robbery is an aggravated form of larceny). This assignment of error is overruled.
In his next assignment of error, defendant contends the trial court erred by instructing the jury on the theory of acting in concert. "It is generally error, prejudicial to defendant, for the trial court to instruct the jury upon a theory of a defendant's guilt which is not supported by the evidence." State v. Brown, 80 N.C. App. 307, 311, 342 S.E.2d 42, 44 (1986). In this case, the indictment alleged that defendant committed robbery with a dangerous weapon based on the taking of both a bicycle and a "fanny pack" from Mr. Drake. At trial, the State argued that the defendant acted in concert with others to assault Mr. Drake and steal his property. The North Carolina Supreme Court has defined the doctrine of acting in concert as follows:
If two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose . . . or as a natural or probable consequence thereof.
State v. Mann, 355 N.C. 294, 306, 560 S.E.2d 776, 784, cert. denied, 537 U.S. 1005, 154 L.Ed.2d 403 (2002) (internal quotations omitted).
The uncontradicted evidence presented at trial showed that there were other young men present during defendant's confrontation with Mr. Drake. Mr. Drake testified that defendant communicated back and forth with these young men, discussing, among other things, who was going to take each piece of property, and that the young men were encouraging defendant to assault him and take his property. Mr. Drake also testified that at the moment he was rammed by defendant and fell from his bicycle, these young men "swooped" over and one of them took the bicycle.
Defendant argues that such testimony is not sufficient to show that he and the young men acted pursuant to a common plan or purpose. We disagree. The young men were (1) present at the scene of the crime and (2) did some act, i.e. take the bicycle, which formed a part of the crime. Such circumstances are sufficient to create an inference that defendant acted with the others pursuant to a common plan or purpose to assault Mr. Drake and steal his property. See State v. Joyner, 297 N.C. 349, 356-357, 255 S.E.2d 390, 395 (1979). Defendant's assignment of error is overruled.
Next, defendant argues the habitual felon indictment is facially invalid because the indictment alleges, as one of the felonies supporting defendant's habitual felon status, that he had been previously convicted of possession of cocaine in violation of N.C. Gen. Stat. 90-95(d)(2), which defendant asserts is a misdemeanor. Our Supreme Court recently held otherwise in State v. Jones, ___ N.C. ___, ___ S.E.2d ___ (June 25, 2004) (No. 591PA03), and thus, defendant's argument to the contrary is overruled.
Defendant also argues there is insufficient evidence to support his conviction of being an habitual felon. Specifically, he argues that it was error to admit into evidence four arrest cards which allegedly contained defendant's finger prints. Because there was sufficient evidence other than the arrest cards to support the habitual felon conviction, we need not address defendant's argument.
In this case, the State presented certified copies of each court record supporting the convictions alleged in the habitual felon indictment. This evidence alone is sufficient to support defendant's conviction of being an habitual felon. See N.C. Gen. Stat. § 14-7.4 (2003) ("A prior conviction may be proved . . . by the original or a certified copy of the court record of the prior conviction."). Thus, even without consideration of the arrest cards, there was sufficient evidence to support a conviction of being an habitual felon. Defendant's final assignment of error is overruled.
Finally, we note a clerical error on the face of the judgment, which indicates defendant pled guilty to the offense when, in fact, he pled not guilty and was convicted by a jury. We remand to the trial court for correction of the clerical error.
No error, remanded for correction of clerical error.
Judges HUNTER and THORNBURG concur.
Report per Rule 30(e).