Opinion
No. COA14–503.
2014-11-18
STATE of North Carolina v. Ashley Nicole DODD, Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General M. Lynne Weaver, for the State.Michael E. Casterline for defendant-appellant.
Appeal by defendant from judgment entered 18 October 2013 by Judge Marvin P. Pope in Haywood County Superior Court. Heard in the Court of Appeals 20 October 2014. Attorney General Roy Cooper, by Special Deputy Attorney General M. Lynne Weaver, for the State. Michael E. Casterline for defendant-appellant.
GEER, Judge.
Defendant Ashley Nicole Dodd appeals from the judgment entered after a jury found her guilty of robbery with a dangerous weapon. Defendant contends the trial court committed plain error by instructing the jury that a knife is a dangerous weapon. Because of the undisputed evidence in this case, we hold defendant has failed to demonstrate that the jury probably would have reached a different verdict in the absence of the instruction, and, therefore, the instruction did not amount to plain error.
Facts
On 13 February 2013, Jennifer King was working her shift as a convenience store clerk in Canton, North Carolina. Ms. King had her back to the door and was stocking cigarettes when someone entered the store behind her. When Ms. King heard the person demand money, she thought one of her friends was playing a joke on her. Ms. King turned around and saw a woman wearing an orange ski mask, a dark hoodie, gloves, and white shoes. The woman told Ms. King that she was not joking, banged on the cash register, and threatened to slit Ms. King's throat if she did not give her the money. Ms. King did not see a knife, but believed the woman had a knife based on the threat to slit her throat. Ms. King opened the register for the woman and then dialed 911 on her cell phone. The woman took money from the register, put it in a bag, and fled the store.
When police responded to the 911 call, they found a knife on the store floor near the counter next to the register where a customer would stand. Ms. King told them the knife was not there before the robbery. The knife was about 6.5 to 6.75 inches long and was introduced into evidence at trial.
A nurse was driving by the convenience store at the time of the robbery. She saw someone wearing an orange mask and dark hoodie run to a white truck that was waiting near the store with its lights on. When she heard about the robbery, she called the police. They showed her a surveillance video from the store that had captured an image of a white truck at the time of the robbery. The nurse confirmed that the person she saw had climbed into a truck that looked like the one on the video.
A month later, an officer observed a white truck parked in the parking lot of the convenience store that had been robbed. The truck, which had a distinctive pattern of rust, matched the description of the truck given by the nurse and shown on the surveillance video. The officer followed the truck and stopped it for speeding. Defendant's boyfriend, Luke Stuart, who was driving was arrested on an outstanding warrant. Defendant, who was a passenger, was arrested for possession of drug paraphernalia found during the traffic stop.
Both Mr. Stuart and defendant confessed to the robbery. Defendant admitted that they had gone to Canton to buy drugs, but the drug deal had “gone bad.” She said that they then decided to rob a convenience store to get money. She told officers that she had a knife in her pocket, but that it fell out when she jumped up on the counter next to the cash register. She threatened the clerk, told the clerk that she had a knife, took the money from the register, and left. Mr. Stuart, at trial, identified the knife found next to the counter as belonging to him—he used it for skinning deer.
Defendant was indicted for robbery with a dangerous weapon. At trial, however, the trial court instructed the jury both as to common law robbery and robbery with a dangerous weapon. The jury found defendant guilty of robbery with a dangerous weapon, and the trial court sentenced defendant to 64 to 89 months imprisonment. Defendant timely appealed to this Court.
Discussion
In her sole argument on appeal, defendant contends that the trial court erred by instructing the jury that a knife is a dangerous weapon. Because defendant did not object to the jury instructions given at trial or request other instructions, defendant contends that this instruction amounted to plain error. “For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. ... To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error ‘had a probable impact on the jury's finding that the defendant was guilty.” ’ State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)). “Moreover, because plain error is to be ‘applied cautiously and only in the ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings[.]’ “ Id. (quoting Odom, 307 N.C. at 660, 300 S.E.2d at 378).
A person commits robbery with a dangerous weapon if she unlawfully takes another person's property through the use, or threatened use, of a dangerous weapon. N.C. Gen.Stat. § 14–87 (2013). Generally, the circumstances of each case determine whether a knife is a dangerous weapon, State v. Smallwood, 78 N.C.App. 365, 368, 337 S.E.2d 143, 144–45 (1985), including “ ‘its appearance and the manner of its use[,]’ “ State v. Quick, 60 N.C.App. 771, 773, 299 S.E.2d 815, 816 (1983) (quoting State v. Thompson, 297 N.C. 285, 288, 254 S.E.2d 526, 528 (1979)).
Here, the trial court gave the following pertinent instructions regarding robbery with a dangerous weapon:
The defendant has been accused of robbery with a dangerous weapon, which is taking and carrying away the personal property of another from her person or in her presence without her consent by endangering or threatening a person's life with a dangerous weapon, the taker knowing that she was not entitled to take the property and intending to deprive another of its use permanently.
....
... Sixth, that the defendant had a dangerous weapon in her possession at or during time she obtained the property, or that it reasonably appeared to the victim that a dangerous weapon was being used or might be used, in which case you may infer that the said instrument was what the defendant's conduct represented it to be. A dangerous weapon is a weapon which is likely to cause death or serious bodily injury. A knife is a dangerous weapon ....
....
So I charge that if you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant had in her possession a dangerous weapon or that it reasonable [sic] appeared to the victim that a dangerous weapon was being used or might be used and that the defendant took and carried away property from the person or in the presence of a person without her voluntary consent by endangering or threatening her life with the use or threatened use of a dangerous weapon, the defendant knowing that she was not entitled to take the property and intended to deprive that person of its use permanently, it would be your duty to return a verdict of guilty of robbery with a dangerous weapon.
(Emphasis added). The trial court then also instructed the jury on the lesser included offense of common law robbery.
Even assuming, without deciding that the trial court erred in instructing that “[a] knife is a dangerous weapon,” defendant has failed to show plain error. The evidence was undisputed that defendant took a knife used for skinning deer with her to rob the convenience store, that defendant told the clerk she had a knife, and that defendant, while standing on the counter next to the register and banging on the register, threatened to slit the clerk's throat if the clerk did not open the register. The clerk believed defendant had a knife and that her life was in danger.
Given the overwhelming evidence of guilt of robbery with a dangerous weapon, we cannot conclude that the jury would probably have found defendant guilty of common law robbery in the absence of the challenged instruction. See, e.g., State v. Clemmons, 319 N.C. 192, 201, 353 S.E.2d 209, 214 (1987) (in finding no plain error, holding that “[i]n light of the record as a whole, especially the evidence as to the extreme traumatization of the victim, we believe the jury, had it been left to determine the nature of the weapon as a factual issue, would have found that the knife was a dangerous or deadly weapon or at least that the victim reasonably believed it to be such”); State v. Cartwright, 177 N.C.App. 531, 539, 629 S.E.2d 318, 324 (2006) (in finding no plain error, concluding that “[i]n light of the entire record, particularly the victim's testimony that she knew it was a knife that defendant took from his pocket, that she asked him not [to] hurt her upon seeing the knife, and that she was scared, we conclude that the jury likely would have found that the victim reasonably believed the knife to be a dangerous or deadly weapon”).
No error. Judges CALABRIA and McCULLOUGH concur.
Report per Rule 30(e).