Opinion
No. COA07-395.
Filed February 19, 2008.
Caldwell County Nos. 04 CRS 1206, 04 CRS 1208.
Appeal by defendant from judgments entered 4 March 2005 by Judge Beverly T. Beal in Caldwell County Superior Court. Heard in the Court of Appeals 31 October 2007.
Attorney General Roy Cooper, by Special Deputy Attorney General Daniel S. Johnson, for the State. Michael E. Casterline, for defendant-appellant.
Jamey Lee Wilkes ("defendant") appeals from judgments entered upon jury verdicts finding him guilty of attempted robbery with a dangerous weapon, robbery with a dangerous weapon, and attaining the status of a violent habitual felon. We find no error.
On 12 September 2002, Gladys Nelson ("the victim") was working as a cashier at a convenience store in Lenoir, North Carolina. At around eleven o'clock in the evening, a man entered the store and asked to use the restroom. After using the restroom, the man asked for a pack of cigarettes. When the victim turned her back to access the cigarettes, he went behind the counter, pushed her and demanded money from the cash register. When the victim said no, the man held one hand behind his back and said, "I've got a gun." The victim walked to the cash register and responded, "you show me the gun and I'll give you the money." The man said he would take her pocketbook. He grabbed her pocketbook from the next room, and left the store. The victim followed him as he exited the store and recorded the license plate number that was on the vehicle he drove. The victim then called the police. The incident was recorded by the convenience store's surveillance system.
Officer Kevin Kerley ("Officer Kerley") of the Lenoir Police Department ("Lenoir P.D.") responded to the victim's 911 call and traced the license plate number to defendant's apartment in Lenoir. The Lenoir P.D. officers located the getaway vehicle at the defendant's apartment. Sergeant Kevin Duckworth ("Sgt. Duckworth") noticed the vehicle's hood was still warm. Officer Charles Hibbard found a steak knife outside the apartment along the edge of the woods behind the property. The ground in the area surrounding the place where the knife was found was damp with dew, but the knife itself was dry. The victim's pocketbook was located fifteen to twenty feet away from the knife.
Sgt. Duckworth observed defendant outside his apartment. Officer Brian Smith of Lenoir P.D. ("Officer Smith") asked defendant if he could talk to him in private. Officer Smith asked defendant if he could search him and defendant consented. When defendant was searched, Officer Smith found headgear in defendant's pocket similar to the type worn by the person who robbed the victim ("the robber"). A shirt, similar to the one worn by the robber, was found in defendant's apartment. Defendant was arrested and taken to the police department. Officer Smith first read defendant his Miranda rights. Then the officer handed defendant a document. It was a standard form entitled "Miranda Rights" that enables law enforcement officers to decide whether to proceed or not. Defendant checked the box indicating he understood his rights and that he wished to answer questions. The defendant also checked the box indicating he was under the influence of drugs or alcohol at the time. Defendant signed the form at the bottom. The police recorded the interview with defendant and defendant gave a statement. Officer Smith asked defendant to put the statement in writing. Defendant said he could not write a statement at that time and expressed concern about his wife. Officer Smith suggested writing the statement for defendant, then defendant would review and sign it only if he agreed with it. Defendant agreed and Officer Smith wrote down the statement. The defendant's statement was as follows:
I have a crack addiction. Sometimes, you know it gets out of control; I can't control it, smoked five or six rocks today, drove my wife's car to the store. She didn't know I had the car, she was asleep. Just went in there and asked to use the restroom. I asked her where the restroom was at. I asked for a pack of cigarettes, Newport's. That's when I went around the counter and asked her to open the cash register. I told her I had the gun, but I was just trying to scare her. I remember I had a lighter in my hand, but I don't remember a knife. She said show it to me or something like that. I really wanted to leave. I looked over and saw the pocketbook on the shelf. I grabbed it and left. I went and bought some crack and then I went home. I slung the pocketbook and the wallet down in the woods.
After Officer Smith read the statement to the defendant, defendant asked him to add an apology to the statement. Defendant then signed the statement.
The defendant was indicted on charges of attempted robbery with a dangerous weapon, robbery with a dangerous weapon and nonstatutory aggravating factor. On 1 March 2005, defendant was tried in Caldwell County Superior Court before the Honorable Beverly T. Beal. Defendant moved to suppress statements made to the officers during interrogation on the grounds his waiver of Miranda rights was not voluntary. The trial court heard testimony from the officers and denied the motion to suppress.
Defendant moved to dismiss the charges at the close of the State's evidence. The trial court denied defendant's motion. Defendant again moved to dismiss the charges at the close of all the evidence. The trial court denied defendant's motion.
During the charge conference, the defendant requested an instruction on misdemeanor larceny. After hearing arguments from the State and defendant's counsel, the trial court denied the request. The jury was instructed on the charges of attempted robbery with a dangerous weapon, robbery with a dangerous weapon, and common law robbery. On 4 March 2005, the jury returned guilty verdicts for attempted robbery with a dangerous weapon, robbery with a dangerous weapon, and attaining the status of a violent habitual felon. Defendant's motion to set aside the verdicts was denied. Defendant was sentenced to life imprisonment without parole in the North Carolina Department of Correction. Defendant appealed.
I. Sufficiency of the Evidence
Defendant argues the trial court erred in denying his motion to dismiss made at the close of all the evidence based on insufficient evidence to support the charges of attempted robbery with a dangerous weapon and robbery with a dangerous weapon. We disagree.
The standard of review on a motion to dismiss for insufficient evidence is whether the State presented substantial evidence of each element of the charged offense. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). The evidence is to be viewed in the light most favorable to the State, "giving the State the benefit of every reasonable inference to be drawn therefrom." State v. Patterson, 335 N.C. 437, 450, 439 S.E.2d 578, 585 (1994).
The elements of robbery with a dangerous weapon are: (1) the unlawful taking or attempted taking of personal property from another; (2) possession, use or threatened use of "any firearms or other dangerous weapon, implement or means"; and (3) threat or danger to life of the victim. N.C. Gen. Stat. § 14-87(a) (2007); State v. Joyner, 295 N.C. 55, 63, 243 S.E.2d 367, 373 (1978) (citing State v. Moore, 279 N.C. 455, 183 S.E.2d 546 (1971)). Defendant argues proof of possession of a firearm or other dangerous weapon is required to constitute the offense. He cites State v. Faulkner, 5 N.C. App. 113, 168 S.E.2d 9 (1969), where this Court granted a new trial because the trial court failed to instruct on the lesser offense of common law robbery. The relevant issue in Faulkner was whether the evidence supported an instruction on common law robbery. Id., 5 N.C. App. at 118, 168 S.E.2d 12-13. This Court found that because there was conflicting evidence on whether the defendant possessed a dangerous weapon, the defendant was entitled to an instruction on the lesser offense. Id., 5 N.C. App. at 119, 168 S.E.2d at 13.
Here, unlike the defendant in Faulkner, the issue is whether there is substantial evidence to support the element of possession, use or threatened use of a dangerous weapon. N.C. Gen. Stat. § 14-87(a). The State presented evidence from which a reasonable juror could infer defendant possessed a knife when he entered the convenience store. The surveillance video retrieved from the store was played for the jury and entered into evidence. Officer Smith testified that he observed from the video that the robber raised his shirt and pulled out a shiny metallic object. The surveillance tape shows the robber was holding a shiny object behind his back when he confronted the victim and told her he had a gun, the police found a knife outside the defendant's apartment building, and Officer Smith testified defendant told him the knife found outside the building "might have been" the knife he used. Whether the shiny object shown in the surveillance tape was a knife or, as the defendant suggests, a cigarette lighter, is a question for the jury. Furthermore, the defendant threatened the victim with a firearm when he demanded money and said, "I've got a gun." Threatened use of a dangerous weapon is sufficient to submit the charge of robbery with a dangerous weapon to the jury. State v. Lee, 128 N.C. App. 506, 510, 495 S.E.2d 373, 376 (1998) ("To obtain a conviction for armed robbery, it is not necessary for the State to prove that the defendant displayed the firearm to the victim."); State v. Bartley, 156 N.C. App. 490, 495-96, 577 S.E.2d 319, 322-23 (2003) (Evidence that defendant put his hand in his pocket and "made like he had a gun," is sufficient to withstand a motion to dismiss for robbery with a dangerous weapon, even when the victim did not see the weapon).
Defendant next argues that the victim was not endangered because she was not afraid of the defendant. We disagree.
Fear on the part of the victim is not a necessary element of robbery with a dangerous weapon. Joyner, 295 N.C. at 63, 243 S.E.2d at 373 (The question is whether the 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. Gay, 151 N.C. App. 530, 532, 566 S.E.2d 121, 124 (2002) (the element of danger or threat to the life of the victim is the essence of a robbery with a dangerous weapon offense). Our Supreme Court outlined rules to resolve sufficiency of the evidence questions in armed robbery cases where the instrument may not be a weapon capable of endangering or threatening a life. State v. Fleming, 148 N.C. App. 16, 22, 557 S.E.2d 560, 564 (2001) (citation omitted). The rules are:
(1) When a robbery is committed with what appeared, to the victim to be a firearm or other dangerous, weapon capable of endangering or threatening the life, of the victim and there is no evidence to the, contrary, there is a mandatory presumption that the, weapon was as it appeared to the victim to be. (2) If, there is some evidence that the implement used was not, a firearm or other dangerous weapon which could have, threatened or endangered the life of the victim, the, mandatory presumption disappears leaving only a, permissive inference, which permits but does not, require the jury to infer that the instrument used was, in fact a firearm or other dangerous weapon whereby, the victim's life was endangered or threatened. (3) If, all the evidence shows the instrument could not have, been a firearm or other dangerous weapon capable of, threatening or endangering the life of the victim, the, armed robbery charge should not be submitted to the, jury.
Fleming, 148 N.C. App. at 22, 557 S.E.2d at 564 (quoting State v. Allen, 317 N.C. 119, 124-25, 343 S.E.2d 893, 897 (1986)).
At trial, the victim testified she was not afraid at the time of the robbery, but after the event she felt afraid. The evidence suggests the instrument the defendant held behind his back could have been a knife. The jury is allowed but not required to infer that the instrument used was a dangerous weapon. Allen, 317 N.C. at 124, 343 S.E.2d at 897. The jury was instructed that a knife is a dangerous weapon, and defendant did not assign error to this instruction. Viewing the evidence in the light most favorable to the State, we find no error.
II. Jury Instructions — Plain Error
Defendant next argues that the variance between the indictment and the jury instruction was plain error warranting reversal. We disagree.
We note as a preliminary matter that defendant did not assert plain error to this assignment of error in the record. The Rules of Appellate Procedure provide that in criminal cases, errors that are not preserved may be made the basis of "an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error." N.C.R. App. P. 10(c)(4) (2007). However, because defendant argues plain error in his brief, we exercise our discretion under Rule 2 of the N.C. Rules of Appellate Procedure to suspend a strict application of this rule and consider defendant's plain error argument. N.C.R. App. P. 2 (2007).
Under a plain error standard of review, the defendant is entitled to reversal "only if the error was so fundamental that, absent the error, the jury probably would have reached a different result." State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002) (citation omitted).
Defendant contends the variance between the indictment and jury instructions compromised defendant's right to a unanimous verdict. We disagree and find this case analogous to State v. Montgomery, 331 N.C. 559, 569, 417 S.E.2d 742, 747 (1992). In State v. Montgomery, the indictment on the charge of robbery with a dangerous weapon stated the defendant carried away personal property "from the person and presence" of the victim. Id. The trial court's instructions to the jury required the State to prove that the defendant "took the property from the person of [the victim] or took property of another in the presence of [the victim]." Id. Our Supreme Court held that "[t]he use of a conjunctive in the indictment does not require the State to prove various alternative matters alleged." Id. (citing State v. Williams, 314 N.C. 337, 356, 333 S.E.2d 708, 721 (1985)). The Court concluded "there was no fatal variance between the indictment, the proof presented at trial, and the trial court's instructions to the jury." Id., 331 N.C. at 569, 417 S.E.2d at 747-48. In State v. Hartness, the Supreme Court held where the defendant was charged with "a single wrong . . . established by a finding of various alternative elements," use of the disjunctive in the jury instructions did not violate defendant's right to a unanimous verdict, 326 N.C. 561, 566, 391 S.E.2d 177, 180 (1990).
Here, the charges of attempted robbery with a dangerous weapon and robbery with a dangerous weapon were described in part in the indictment as "having in his possession and threatening the use of a knife, a dangerous weapon, and a gun, a dangerous weapon. . . ." The jury was instructed on the attempted robbery with a dangerous weapon charge to find as an element that "defendant had a knife or a firearm in his possession at the time he obtained the property, or that it reasonably appeared to the victim that a knife or firearm was being used." As to the robbery with a dangerous weapon charge, the jury was instructed to find as an element "that the defendant had [a] knife or a gun in his possession at the time he obtained the property or that it reasonably appeared to the victim that a knife or gun was being used. . . ." Whether the jury returned the guilty verdict based on the inference defendant used a gun or a knife is immaterial because either would satisfy the dangerous weapon element of the charge. State v. Lyons, 330 N.C. 298, 303, 412 S.E.2d 308, 312 (1991) ("[I]f the trial court merely instructs the jury disjunctively as to various alternative acts which will establish an element of the offense, the requirement of unanimity is satisfied." (emphasis omitted)). The variance between the indictment and the jury instructions in this case is not fatal, and is not so fundamental that it rises to the level of plain error. Montgomery, 331 N.C. at 569, 417 S.E.2d at 747-48; Jones, 355 N.C. at 125, 558 S.E.2d at 103. This assignment of error is overruled.
III. Instruction on Misdemeanor Larceny
Defendant asserts the denial of the request for a misdemeanor larceny instruction was error because the evidence would have supported a conviction for that offense. We disagree.
"A jury instruction on a lesser included offense is required if it is supported by the evidence. But where the evidence is clear as to each element of the offense charged, the trial court may refrain from submitting a lesser included offense instruction to the jury." State v. Hurley, 180 N.C. App. 680, 683, 637 S.E.2d 919, 922 (2006), review denied by, 361 N.C. 433, 649 S.E.2d 394 (2007) (citing State v. Lawrence, 352 N.C. 1, 19, 530 S.E.2d 807, 819 (2000)). Misdemeanor larceny is an unlawful taking without means of fear or violence. State v. White, 142 N.C. App. 201, 204, 542 S.E.2d 265, 267 (2001).
Defendant argues because the victim testified she was not afraid, a misdemeanor larceny charge was required. We disagree. Defendant did not present evidence to negate the fact that the taking of the victim's purse occurred in the context of threatening the victim with a gun. The mere contention that the jury might reject the State's evidence is not enough to require submission of the lesser offense. Hurley, supra; State v. Barnes, 125 N.C. App. 75, 80, 479 S.E.2d 236, 239 (1997). No error.
IV. Motion to Suppress
Defendant contends the trial court erred in denying the defendant's motion to suppress his statement to the police because the evidence showed defendant was likely impaired when he waived his rights. We disagree.
The standard of review of a ruling on a motion to suppress the defendant's statements is whether the trial court's findings of fact are supported by competent evidence and whether those findings support the trial court's conclusions of law. State v. Tarlton, 146 N.C. App. 417, 420, 553 S.E.2d 50, 53 (2001) (citations omitted). "In determining the voluntariness of the confession and the waiver of Miranda rights, we look to the totality of the circumstances." State v. McKoy, 323 N.C. 1, 21, 372 S.E.2d 12, 23 (1988), sentence vacated on other grounds, 494 U.S. 433, 108 L.Ed. 2d 369 (1990). Intoxication at the time of a confession does not render it involuntary, "unless the defendant is so intoxicated that he is unconscious of the meaning of his words." State v. Fisher, 171 N.C. App. 201, 209, 614 S.E.2d 428, 433 (2005) (internal quotation marks omitted) (quoting McKoy, 323 N.C. at 22, 372 S.E.2d at 23 (citation omitted)).
Defendant contends the findings of fact do not support the trial court's conclusion of law that defendant voluntarily waived his Miranda rights. We disagree.
The trial court found that defendant signed the Miranda waiver form and indicated he understood his rights at 1:05 a.m. The officer told defendant he could "pick and choose" which questions he wanted to answer. Defendant said he consumed crack cocaine earlier that day and admitted an addiction to crack cocaine. Early in the interrogation the defendant indicated he was drunk. With defendant's consent, the officer prepared a written statement for the defendant's signature. He did not write out the statement himself because he was worried about his wife. He volunteered information to the officers stating he did not remember having a knife, and that he was sorry for what he did and was not trying to hurt anyone but was after money for drugs. He used his wife's car to drive to the store and during the interview stated, "Add on the statement . . . she didn't know I had the car because she was asleep." The trial court found that "[t]he defendant was observed to be calm and cooperative. There was eye contact between Detective Smith and the defendant during the interrogation." There was an odor of alcohol on his person, but the trial court noted that from the audio recording, the defendant's tone was "conversational" and appeared to be "consistent, regular in its level of use of grammar and syntax." Some responses were inaudible but other responses were audible and "sufficient to be able to discern for the purposes of this hearing the defendant's responsiveness and his level of understanding."
The trial court concluded that the defendant understood his right to remain silent, his right to an attorney, and his consumption of alcohol or drugs was "not sufficient in and of itself to show that the defendant was so heavily under the influence of drugs or alcohol that he was unable to understand the implications of his statements which are and can be characterized as a confession." The court also concluded that "[t]he totality of the circumstances indicates that the defendant, although in custody, was properly advised of his rights, his constitutional rights were not violated, and the defendant is not entitled to have his statement suppressed." These conclusions are supported by the trial court's findings that defendant was advised of his rights, answered the officer's questions in a calm and cooperative manner with eye contact, and he volunteered certain information without questions or prompts. We find no error.
V. Violent Habitual Felon
Defendant next asserts that because there was insufficient evidence to convict him of robbery with a dangerous weapon and attempted robbery with a dangerous weapon, the trial court erred in allowing the jury to consider the violent felon indictment. We disagree. We conclude sufficient evidence was presented for both convictions. More importantly, defendant cited no authority independent of his earlier arguments to support this argument, nor has he argued any other basis for finding error with the violent habitual felon sentence. We find no error.
Finally, we note that although defendant assigned twelve errors, he argued only five of them in his brief. When assignments of error are not argued, they are abandoned pursuant to N.C.R. App. P. 28(b)(6) (2007).
No error.
Judges STEPHENS and ARROWOOD concur.
Report per Rule 30(e).