Opinion
No. COA04-442
Filed 4 January 2005 This case not for publication
Appeal by defendant from judgments entered 30 October 2003 by Judge A. Moses Massey in Guilford County Superior Court. Heard in the Court of Appeals 29 November 2004.
Attorney General Roy Cooper, by Special Deputy Attorney General W. Richard Moore, for the State. Irving Joyner for defendant-appellant.
Guilford County, Nos. 02 CRS 103298, 02 CRS 103300, 02 CRS 103711.
On 21 January 2003, the Guilford County grand jury indicted defendant on charges of possession with intent to sell and deliver cocaine and of maintaining a dwelling for the keeping of a controlled substance. The grand jury also indicted defendant on 3 February 2003 on a charge of robbery with a dangerous weapon. A jury found defendant to be guilty of robbery with a dangerous weapon on 30 October 2003, and defendant on that same date pled guilty to the remaining charges pursuant to a plea agreement. The trial court imposed consecutive sentences totaling 132 to 168 months imprisonment. From the trial court's judgments, defendant appeals. The State presented evidence tending to show the following: Shortly after 2:00 p.m. on 13 November 2002, the manager of a Greensboro Subway Restaurant was talking on the telephone in the back room of the restaurant. A second employee was in the restroom at that time. The manager heard more than one person enter the restaurant, and he came around the wall from the back room to check. He only saw one man standing in front of the counter, and he asked if he could help the man. The man declined the manager's offer and headed for the hallway which led to both the restroom and the door to the back room.
After the man walked away, the manager returned to the back room. Defendant then opened the door to the back room and asked for the manager. Despite being told the manager was not in, defendant and the man who had been at the counter entered the back room, which was an employee work area. The two men told the manager to show them the money. They were approximately two feet away from the manager. Defendant picked up the other employee's cell phone and a meat-cutting knife from a food preparation table. The manager described the knife as having a blade of six to eight inches in length and as being "almost ten inches" in length including the handle.
As the manager moved to hang up the telephone, the second man threatened to shoot him. The manager never saw a firearm. During this time, the manager said defendant was "[j]ust holding [the knife] like that" and "[i]t looked — like he did not want me to move." When asked what his thoughts were upon seeing the knife, the manager testified, "I mean I wasn't going to take the chance." He backed up toward an oven in the small kitchen area as the two men were taking money from the cash register and a change box. After the men took the money and also the other employee's cell phone from the table in the back room, they fled. The manager did not see the knife afterwards. He provided officers with the license plate number of the vehicle in which the two men escaped. On 18 November 2002, the manager identified defendant in a photographic lineup.
Officers located and stopped the vehicle, which was a rental vehicle, the next day. When officers informed the woman who was driving the vehicle that the vehicle had been used in a robbery, she told them that defendant had borrowed the vehicle at approximately 8:30 a.m. on the previous day and did not return it to her until about 7:00 p.m. The driver informed officers of the hotel room in which defendant was staying and accompanied them to the location. A room key which she provided did not work, so officers continued knocking on the room door. Defendant opened the door and subsequently consented to a search of the room. Upon entering the room, officers observed a half-smoked marijuana joint and a plate with a silver spoon and a razor blade with white residue. Officers found crack cocaine in the toilet tank in the bathroom. Defendant's palm print was found on the vehicle's rear view mirror. Defendant made a motion to dismiss the robbery with a dangerous weapon charge at the close of the State's evidence, which the trial court denied. Defendant introduced several exhibits into evidence, but failed to renew his motion to dismiss at the close of all the evidence. During the charge conference, the trial court denied defendant's request for an instruction on the lesser included offense of common law robbery. The trial court also denied a motion by the State for an instruction that the knife was a dangerous weapon as a matter of law. After the jury found defendant to be guilty of the charge, defendant made a motion to set aside the verdict. Following the trial court's denial of his motion, defendant pled guilty to the drug offenses pursuant to a plea arrangement.
Defendant first contends the trial court erred by denying his request to instruct the jury on the lesser included offense of common law robbery. He argues he was entitled to the instruction because the trial court denied a motion by the State to instruct the jury that the knife was a dangerous weapon as a matter of law. Defendant's argument is not persuasive.
In State v. Wilson, this Court summarized the applicable principles as follows:
When a person commits a robbery by the use or threatened use of what appears to be a . . . dangerous weapon, the law presumes, absent any evidence to the contrary, that the instrument is what it appears to be — a weapon endangering the life of the person being robbed. This presumption is mandatory when no evidence is introduced to show the victim's life was not in danger. However, if the defendant comes forward with some evidence tending to show the instrument was not a dangerous weapon, then the mandatory presumption disappears and the jury may, but is not required to, infer the instrument usedwas a dangerous weapon. In such a case, instruction on the lesser included offense of common law robbery should also be given.
Wilson, 121 N.C. App. 720, 725, 468 S.E.2d 475, 479 (1995) (citations omitted). The manager described the knife held by defendant during the robbery as being approximately ten inches long with a six to eight-inch blade. From the manager's testimony that he "wasn't going to take the chance" after seeing the knife and from his action of backing away toward an oven in the small kitchen area, it is clear he perceived his life was in danger because of the knife. Although the second man threatened to shoot him, the manager testified he never saw a firearm. No evidence was introduced to show the manager's life was not in danger.
Defendant's reliance upon the trial court's decision not to instruct the jury that the knife was a dangerous weapon as a matter of law is misplaced. Where the weapon is described in detail and the manner of its use is of such character as to admit but one conclusion, the question of whether it is a dangerous weapon is a question of law. See State v. Torain, 316 N.C. 111, 119, 340 S.E.2d 465, 470, cert. denied, 479 U.S. 836, 93 L. Ed. 2d 77 (1986). The uncontradicted evidence of defendant's use of the knife compels a finding that it was a dangerous weapon. Although the trial court could properly have found it to be a dangerous weapon as a matter of law, its failure to do so was harmless error. The trial court's decision to submit the matter as a question of fact to the jury was in fact advantageous to defendant because it placed a higher burden upon the State. Id. On the basis of the State's evidence as to the knife and of its use by defendant, along with the lack of evidence to the contrary, the trial court properly declined to instruct the jury on the lesser included offense of common law robbery.
Defendant next contends the trial court erred by denying his motion at the close of the evidence to dismiss the charge of robbery with a dangerous weapon and by denying his motion to set aside the jury's verdict. He argues there was no evidence that he brandished the knife or used it to threaten the manager, and he asserts there was no testimony that the manager relinquished possession of the money because of the use of the knife. His argument is not persuasive.
As an initial matter, defendant has failed to preserve this argument for appeal. By failing to move for a dismissal of the action at the close of all the evidence, "[defendant] may not challenge on appeal the sufficiency of the evidence to prove the crime charged." N.C.R. App. P. 10(b)(3) (2004).
Nonetheless, we have examined the record and find defendant's argument to be without merit. When viewed in the light most favorable to the State, see State v. Davis, 325 N.C. 693, 696-97, 386 S.E.2d 187, 189 (1989), the evidence was sufficient to support the trial court's decision to submit the charge of robbery with a dangerous weapon to the jury. See N.C. Gen. Stat. § 14-87 (2003). Defendant entered the employee work area of the restaurant with a second man, and he picked up and held a ten-inch knife as the two men stood approximately two feet away from the manager. Themanager testified to thinking that he "wasn't going to take the chance" upon seeing the knife in defendant's hand and that "[i]t looked — like he did not want me to move." He backed up toward an oven in the small kitchen area as the two men were taking money from the cash register and a change box. After the men took the money and also the other employee's cell phone from the table in the back room, they fled.
Evidence of defendant's possession of the knife, of its characteristics, and of the manager's perception of the threat it posed to his life was sufficient to support each of the challenged elements of the offense. The trial court therefore properly denied the motion to dismiss the charge of robbery with a dangerous weapon. Additionally, based upon the evidence presented, defendant has not shown the trial court abused its discretion in denying his motion to set aside the verdict. See State v. Fleming, 350 N.C. 109, 146, 512 S.E.2d 720, 745 (trial court's ruling on motion to set aside verdict for insufficient evidence reviewable under abuse of discretion standard), cert. denied, 528 U.S. 941, 145 L. Ed. 2d 274 (1999). Accordingly, we find no error.
No error.
Judges HUNTER and STEELMAN concur.
Report per Rule 30(e).