Opinion
No. 07-1164.
Filed April 1, 2008.
Wake County No. 05CRS122232.
Appeal by defendant from judgment entered 13 December 2006 by Judge Henry V. Barnette in Wake County Superior Court. Heard in the Court of Appeals 17 March 2008.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Susan K. Nichols, for the State. J. Clark Fischer for defendant-appellant.
On 13 December 2007, Richard Eugene Murphy ("defendant") was convicted by a jury of robbery with a firearm. Defendant appeals this conviction. After careful consideration, we find no error in defendant's trial.
At trial, the State's evidence tended to show the following: On 11 December 2005, defendant entered the EB Games video game retail store as it was closing. Mr. Gendron, a store employee, was counting the money from two registers when he heard a second store employee, Mr. Baez, call his name. Mr. Gendron testified that he saw "someone right behind [Mr. Baez] with a gun, and the guy tells me, you know: You know what I'm after." Mr. Gendron then gave defendant the money from the store's registers, and defendant demanded that he be shown the store's safe and security taping system. Mr. Gendron took defendant to the back room to the safe, which was empty, and removed the security tape and gave it to defendant. Defendant then exited the store through the back door with the money but left the security tape behind.
Mr. Gendron testified that defendant had used "[a] silver pistol." He further testified that, while he did not know much about guns, he knew defendant's gun was not a revolver. Mr. Gendron testified that he was "[t]errified, just worried about getting [defendant] out of there without anybody getting hurt." The State offered the security video recording of the robbery which showed Mr. Gendron with his hands up because he did not "want to get shot." Defendant's fingerprints were found on the security video tape as well as the plastic tray which had held the money from the registers. The State also presented evidence that a plastic magazine clip from a soft pellet gun was found in the backyard of the store.
Defendant's sole argument on appeal is that the trial court erroneously failed to give the jury a lesser included offense instruction on the crime of common law robbery. Specifically, he contends that the soft pellet gun magazine clip found at the scene is sufficient evidence to raise a question as to whether the crime had been committed with a firearm. We disagree.
"As a general rule, when there is evidence of 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. Porter, 303 N.C. 680, 686, 281 S.E.2d 377, 382 (1981). To convict a defendant of robbery with a dangerous weapon under N.C. Gen. Stat. § 14-87(a), the State is required to prove the following:
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(a) (2007). Further, the State need only prove that the victim reasonably believed that the defendant possessed, used, or threatened to use a firearm in the perpetration of the crime. State v. Lee, 128 N.C. App. 506, 510, 495 S.E.2d 373, 376 (citing State v. Williams, 335 N.C. 518, 522, 438 S.E.2d 727, 729 (1994)), disc. review denied and appeal dismissed, 348 N.C. 76, 505 S.E.2d 883 (1998). While common law robbery is a lesser included offense of armed robbery, the trial court is not required to give a common law robbery instruction if "the uncontradicted evidence indicates that the robbery was perpetrated by the use or threatened use of what appeared to be a dangerous weapon." Porter, 303 N.C. at 686-87, 281 S.E.2d at 382 (emphasis added). Here, the testimony of Mr. Gendron as corroborated by the security video tape is sufficient to prove that Mr. Gendron reasonably believed that defendant had a firearm. The sole fact that a soft pellet gun cartridge was found behind the store is insufficient to contradict this evidence. State v. Spellman, 167 N.C. App. 374, 388, 605 S.E.2d 696, 705 (2004). The crime scene investigator testified only to the fact that this item was found behind the store. Further, the fingerprint analyst testified that he was provided no latent fingerprints from the cartridge for analysis. No further evidence was presented such that the jury could have made any reasonable connection between this object and defendant or the apparent firearm used by defendant. Consequently, we conclude that this evidence is insufficient to contradict the overwhelming evidence that Mr. Gendron believed defendant to have a firearm. Accordingly, the trial court did not err in denying defendant's request to instruct the jury on the lesser included offense of common law robbery.
No error.
Judges McCULLOUGH and STEELMAN concur.
Report per Rule 30(e).