Appeal by defendant from Godwin, Judge. Judgment entered 19 November 1980 in Superior Court, Alamance County. Heard in the Court of Appeals 11 November 1981.
Webb, Judge. Judge Wells concurs. Judge Martin (Robert M.) dissents.
The defendant has made seven assignments of error. We shall discuss some of them. In an effort to impeach the testimony of Mr. Trotter, the defendant put on three witnesses who were in jail with the defendant and Mr. Trotter. Each of them testified that he had heard Mr. Trotter say to the defendant that he had told the officers that the defendant was involved in the robbery because he thought the defendant was in California and he had been able to make an arrangement whereby he would receive no more than three years in prison on a guilty plea by "taking down" the defendant. In the charge the court recounted this testimony and then made the following statement: "In that connection you're entitled to know that only the presiding judge has the lawful authority to enter a judgment and that no plea bargain or plea arrangement has been mentioned to this presiding judge." We believe this statement by the presiding judge violated G.S. 15A-1232 which prohibits him from expressing an opinion as to whether a fact has been proved. See State v. Owenby, 226 N.C. 521, 39 S.E.2d 378 (1946). By telling the jury that only the judge has the authority to enter a judgment and no plea bargain had been mentioned to him, we believe the judge could have created a serious doubt in the minds of the jury as to the testimony of three of the defense witnesses who had testified they heard Mr. Trotter say he had made a plea bargain. We hold this was error which requires a new trial.
The indictment charges that the property was taken from the presence of Ivory Barbee. In one assignment of error the defendant contends it would be a violation of his due process right under Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) to affirm his conviction because there is not sufficient evidence for a rational trier of fact to be satisfied beyond a reasonable doubt of his guilt. He argues that this is so because all the evidence shows that Ivory Barbee was an accomplice to the crime which means the defendant did not take the money without Barbee's consent. The defendant concludes there
is not sufficient proof of lack of consent which is an essential element of armed robbery. See State v. Perry, 38 N.C. App. 735, 248 S.E.2d 755 (1978).
Conceding for purposes of argument that the evidence shows Ivory Barbee consented to the taking of the money, we do not think the defendant's conviction violates Jackson. In State v. Martin, 29 N.C. App. 17, 222 S.E.2d 718 (1976) this Court held that it was not error to charge the jury that they could find the defendant guilty of armed robbery if they were satisfied beyond a reasonable doubt that defendant robbed Mr. Adams or Mrs. Plott. The indictment referred only to Mr. Adams. The evidence showed that Mr. Adams and Mrs. Plott were working in a Big Star store which was robbed by the defendant in that case. In the instant case the indictment charges that the money was taken from the presence of Ivory Barbee. There were other employees in the Burger King when it was robbed and the evidence showed they did not consent to the taking of the property. Under Martin this would supply the element of lack of consent.
In another assignment of error the defendant contends it was error not to submit common law robbery and larceny to the jury. He bases this argument on what he contends is the evidence of Mr. Barbee's consent to the taking of the money which would remove the element of taking without the consent of the person present and would make the crime larceny at most. As we have said, if the evidence shows that Barbee consented to the taking, it also shows the other employees did not consent. If the others did not, the crime could not be larceny.
There was testimony by Mr. Trotter that the guns used in the robbery were not loaded, and the defendant argues that this was evidence from which the jury could conclude that a dangerous weapon was not used, making the crime common law robbery at most. All the evidence for the State shows that Mr. Trotter and the defendant entered the restaurant and pointed weapons at the employees of the restaurant before Mr. Barbee arrived. The other employees were then bound and held until Mr. Barbee came to the restaurant. The defendant relied on an alibi. We believe this evidence shows that if the defendant committed the crime with which he was charged, he was guilty of taking money from the restaurant by the use or threatened use of a
dangerous weapon. If he was guilty of anything, he was guilty of armed robbery. See G.S. 14-87. This assignment of error is overruled.
In another assignment of error the defendant contends that by instructing the jury that they could find the defendant guilty if they found the property was taken from any of the employees, the court deprived the defendant of a unanimous verdict. He says this is so because some of the jurors could have found certain employees did not consent and other jurors could have found other employees did not consent. The gravamen of the offense is the taking of the property of Burger King by the use or threatened use of a firearm. State v. Ballard, 280 N.C. 479, 186 S.E.2d 372 (1972). It is not which of the employees was threatened. If some jurors concluded the property was taken from the presence of one employee by the use or threatened use of a firearm and the other jurors concluded that in the same incident the property was taken from the presence of another employee by the use or threatened use of a firearm, this would be a unanimous verdict. See State v. Martin, supra.
We do not discuss the defendant's other assignments of error as the questions they raise may ...