Appeal by defendant from Griffin, Judge. Judgment entered 25 November 1980 in Superior Court, Mecklenburg County. Heard in the Court of Appeals on 13 October 1981.
Hedrick, Judge. Judges Clark and Martin (Harry C.) concur.
Defendant first contends that the trial court erred in denying his motion to dismiss. His argument, that there was insufficient
evidence of armed robbery for a rational trier of fact to find guilt beyond a reasonable doubt, is twofold. He argues, first, that there was not sufficient evidence that the defendant took the automobile by use of a deadly weapon and, second, that there was insufficient evidence that defendant took and carried away the vehicle. We disagree.
G.S. § 14-87 sets forth the essential elements of armed robbery: (1) the unlawful taking or attempted taking of personal property from another; (2) the possession, use, or threatened use of "any firearms or other dangerous weapon, implement or means;" and (3) danger or threat to the life of the victim. See State v. Joyner, 295 N.C. 55, 243 S.E.2d 367 (1978). While defendant concedes that the evidence tends to show assault as well as the presence of a deadly weapon, he argues the case of State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980), for the proposition that a defendant, taking the automobile only as an afterthought once the victim has been rendered unconscious, cannot be found guilty of armed robbery. In Powell, defendant, after raping, strangling and stabbing the victim in her home, took her automobile, television, and carving knife. The Supreme Court held that, while there was sufficient evidence to support a charge of larceny, there was not sufficient evidence that the defendant used a dangerous weapon in taking the items to support a finding of armed robbery. The Court, construing the evidence in the light most favorable to the State, found that it indicated only that defendant took the objects as an afterthought once the victim died.
We believe that the factual situation of Powell is distinguishable from the factual situation before us. Here we have uncontroverted evidence that defendant asked Fant for his car, but Fant refused, offering instead to take defendant where he wanted to go. Once defendant had obtained the shotgun and was in Fant's car, he told Fant to get out. Even though the defendant eventually got out of the car and scuffled with Fant, there was sufficient circumstantial evidence from which a reasonable trier of fact could conclude that defendant intended to get rid of Fant and then to take Fant's car. For a factually similar case finding sufficient evidence of armed robbery, see State v. Reaves, 9 N.C. App. 315, 176 S.E.2d 13 (1970).
Likewise, based on the same evidence, we find that there was sufficient circumstantial evidence tending to show that defendant in fact took and carried away the automobile. Moreover, there was additional evidence that the automobile was found deserted in close proximity to defendant's apartment. Defendant's motion to dismiss for insufficiency of the evidence was properly denied.
We now consider defendant's contentions that the trial court erred in failing to submit to the jury instructions of larceny, a lesser included offense of armed robbery, State v. Swaney, 277 N.C. 602, 178 S.E.2d 399, appeal dismissed and cert. denied, 402 U.S. 1006, 91 S. Ct. 2199, 29 L. Ed. 2d 428 (1971), and of unauthorized use of a motor conveyance, a lesser included offense of larceny, State v. Ross, 46 N.C. App. 338, 264 S.E.2d 742 (1980). When there is conflicting evidence of the essential elements of the greater crime and there is also evidence of lesser included offenses, the trial court must instruct on the lesser included offenses whether or not there has been a specific request for such instructions. State v. Brown, 300 N.C. 41, 265 S.E.2d 191 (1980). If, however, the evidence discloses no conflicting evidence relating to the essential elements of the greater crime, then it is not necessary to submit the lesser included offense or offenses. Id.
We have already reviewed the essential elements of the crime of armed robbery. From our reading of the record, there was uncontroverted evidence that defendant unlawfully took Fant's automobile after shooting him with a sawed-off shotgun and then hitting Fant with the butt of that shotgun, thereby endangering Fant's life. Under these circumstances, there was no conflicting evidence concerning the essential elements of armed robbery, and there was, therefore, no need to submit to the jury any lesser included offense of armed robbery.