Opinion
No. COA02-1593
Filed: 20 January 2004 This case not for publication
Appeal by defendant from judgment entered 14 June 2002 by Judge John R. Jolly, Jr., in Wake County Superior Court. Heard in the Court of Appeals 17 November 2003.
Attorney General Roy Cooper, by Assistant Attorney General Douglas W. Corkhill, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant.
Wake County No. 02 CRS 13946.
Defendant was indicted on one count of robbery with a dangerous weapon and one count of felony speeding to elude arrest. Defendant pled guilty to the felony speeding to elude arrest charge but pled not guilty on the count of robbery with a dangerous weapon. At trial, defendant was found guilty of the lesser included offense of common law robbery. Defendant appeals.
Late in the evening of 17 February 2002, Latisha Garrett stopped at a pay phone on New Bern Avenue, near the intersection with Tarboro Road, in Raleigh. Garrett was driving a white 1998 BMW automobile that she had borrowed from a friend for the evening. Garrett testified that while using the phone she noticed a man walkpast her on the street. She then heard a male voice telling her to be quiet from behind her. Garrett turned to find the man who had just walked past her pointing a gun at her. The man got into the BMW, which Garrett had left running. Garrett asked the man if she could have her purse from the car, but he drove off.
After the man left in the car, Garrett called the Raleigh Police Department and described the car and the man. Garrett did not know the license plate number, but the officer was able to find the exact license plate number by conducting a computer search that matched the owner's name to vehicles registered to that name. Sometime around one o'clock on the morning of 18 February 2002, the description was released over the police computers and radio. Officer S.K. Meyers of the Raleigh Police Department received the report while at Tiffany's, a club on the corner of Falls of the Neuse Road and Sandy Forks Road in north Raleigh. At that time he noticed a white BMW matching the description from the report driving around an apartment complex across the street. Officer Myers followed the car and confirmed that the license plate number matched the license plate number given in the report.
Myers and other officers attempted to make a traffic stop, but the car increased its speed, at one point exceeding 100 miles per hour. The high speed chase continued for approximately two miles on Falls of the Neuse Road. The BMW stopped when it collided with a police car. The driver of the vehicle got out of the car and ran into a field. After being pursued on foot, the driver stopped and was arrested. In searching the area around where the man wasarrested, the officers found a small handgun in two pieces about eight to ten yards from where the man stopped. The gun was found without its firing pin. The absence of a firing pin would render the gun inoperable. Garrett identified the defendant in a photo array as the man who took the BMW from her.
Defendant pled guilty to felony speeding to elude arrest and at trial was found guilty of common law robbery. On appeal, defendant argues: (1) the trial court erred in not submitting the charge of larceny from the person to the jury; (2) the trial court erred in sustaining the State's objection to parts of defendant's testimony regarding his intoxication; and (3) the trial court erred in entering judgment on the verdict of common law robbery because the indictment was insufficient to allege this offense. We find no error.
Defendant argues that the trial court erred in submitting to the jury only common law robbery, and not the lesser included offense of larceny from the person. Common law robbery is an open and violent larceny from the person of another, of goods or money against his will by violence or by putting him in fear. State v. Pickard, 143 N.C. App. 485, 490, 547 S.E.2d 102, 106, disc. review denied, 354 N.C. 73, 553 S.E.2d 210 (2001). Larceny from the person is a lesser included offense of common law robbery. State v. White, 322 N.C. 506, 514, 369 S.E.2d 813, 817 (1988). The difference between the two charges is that larceny from the person does not require that the victim be put in fear. Pickard at 491, 547 S.E.2d at 106. Defendant argues that the charge of larcenyfrom the person should have been included in the jury charge because Garrett did not testify that she was afraid.
Defendant is only entitled to have a lesser included offense submitted to the jury when there is evidence to support it. "If the State's evidence is sufficient to fully satisfy its burden of proving each element of the greater offense and there is no evidence to negate these elements other than the defendant's denial that he committed the offense, the defendant is not entitled to an instruction on a lesser offense." State v. Johnson, 317 N.C. 193, 205, 344 S.E.2d 775, 782 (1986). The defendant is incorrect in asserting that there was not evidence to support that Garrett was put in fear. In defendant's cross-examination of Garrett, his attorney asked:
Question: Okay. Now, during the time all this stuff was going on, are you — were you afraid?
Answer: Yes, but I kept calm.
Question: I'm sorry. What did you say?
Answer: I said yes, but I kept calm.
Because there was sufficient evidence to support each element of the greater offense of common law robbery, defendant was not entitled to an instruction on larceny from the person. This assignment of error fails.
Defendant also argues that the trial court erred in sustaining the State's objection and striking defendant's testimony on direct examination that he was involuntarily intoxicated on the night of the incident. Defendant testified that on the night of theincident that he drank two beers in about thirty minutes. Defense counsel then asked defendant whether he had "done any drugs" that night. The trial court sustained the State's objection and allowed their motion to strike the defendant's answer, "I didn't know that drugs was slipped to me, but they were" — Defendant argues that he should have been allowed to introduce evidence of intoxication by involuntarily ingesting drugs.
Involuntary intoxication is a complete defense to a crime. State v. Bunn, 283 N.C. 444, 457, 196 S.E.2d 777, 786 (1973). The jury is entitled to consider evidence of intoxication in deciding whether the State has proved the specific element of a crime beyond a reasonable doubt, even when the defendant does not meet the burden of production to receive an instruction to the jury on intoxication. State v. Williams, 343 N.C. 345, 365, 471 S.E.2d 379, 390 (1996), cert. denied sub nom., Williams v. North Carolina, 519 U.S. 1061, 136 L.Ed.2d 618 (1997). Defendant is basing his claim of involuntary intoxication exclusively on how he normally felt after drinking two beers as compared to how he felt that night. He testified on cross-examination and redirect examination that the evening was a "blur after the alcohol" and that he felt different from the "regular way" that he felt. Defendant did not even request an instruction on involuntary intoxication, insisting instead that his evidence met the burden of production for an instruction on voluntary intoxication. Because he offered no other evidence that would support his claim of having been involuntarily drugged that night, defendant's claim of involuntary intoxicationis purely speculative and inadmissible. We find no error in the exclusion of this testimony.
Even assuming arguendo that the testimony was improperly excluded, we hold there was no showing of prejudice and no showing of any reasonable probability of a different result. Under N.C. Gen. Stat. § 15A-1443(a), the defendant must establish how he is prejudiced by errors relating to rights arising other than under the Constitution of the United States. N.C. Gen. Stat. § 15A-1443(a) (2003). Given the detail and clarity with which defendant was able to testify about his version of events on the night in question, defendant has not shown a reasonable probability that a different result would have been reached if the stricken testimony had been included. Accordingly, we hold that any error was harmless beyond a reasonable doubt.
Defendant argues that the indictment for robbery with a dangerous weapon was insufficient to allege common law robbery. Defendant did not challenge the indictment at trial. "However, where an indictment is alleged to be invalid on its face, thereby depriving the trial court of its jurisdiction, a challenge to that indictment may be made at any time, even if it was not contested in the trial court." State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341, cert. denied sub nom., Wallace v. North Carolina, 531 U.S. 1018, 148 L.Ed.2d 498 (2000). Defendant contends that the language of the indictment for robbery with a dangerous weapon was insufficient to allege the specific intent element for common law robbery. We disagree. "`Felonious taking' is an essential element of the crime of armed robbery, and it means `a taking with the felonious intent on the part of the taker to deprive the owner of his property permanently and to convert it to the use of the taker.'" State v. Harmon, 21 N.C. App. 508, 510, 204 S.E.2d 883, 885 (quoting State v. Mundy, 265 N.C. 528, 530, 144 S.E.2d 572, 574 (1965)), cert. denied, 285 N.C. 593, 205 S.E.2d 724 (1974). Because the indictment here alleged that "the defendant named above unlawfully, willfully and feloniously did steal, take, and carry away . . .," the indictment adequately alleged the element of specific intent. Accordingly, the indictment for robbery with a dangerous weapon was sufficient to support a conviction of the lesser included offense of common law robbery. See State v. Barksdale, 16 N.C. App. 559, 561, 192 S.E.2d 659, 661 (1972), cert. denied, 282 N.C. 673, 194 S.E.2d 152 (1973). Defendant's assignment of error fails.
Defendant failed to set out his remaining assignments of error in his brief. Because he has neither cited any authority nor stated any reason or argument in support of those assignments of error, they are deemed abandoned. N.C.R. App. P. 28(b)(6).
No error.
Judges MARTIN and LEVINSON concur.
Report per Rule 30(e).