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State v. Wright

Court of Appeals of North Carolina

April 4, 2017


         Heard in the Court of Appeals 20 February 2017.

         Appeal by defendant from judgments entered 14 April 2016 by Judge Daniel A. Kuehnert in Cleveland County, Nos. 14 CRS 54140-41, 15 CRS 392 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L. Hyde, for the State.

          Marilyn G. Ozer for defendant-appellant.

          DAVIS, Judge.

         The primary issue in this appeal is whether a defendant charged with armed robbery is entitled to a jury instruction on the lesser-included offense of common law robbery where there is no evidence that the gun held by the defendant was actually pointed at the victim or that the victim actually feared for her life upon observing the gun. Regis Lee Wright ("Defendant") was convicted of armed robbery based on evidence showing that he entered three convenience stores with a gun in his hand and stole money in the presence of the stores' clerks. Because the State introduced uncontradicted evidence satisfying each element of armed robbery, we hold that no instruction on common law robbery was required.

          Factual and Procedural Background

         The State presented evidence at trial tending to show the following facts: Defendant was charged with four counts of robbery with a dangerous weapon stemming from robberies occurring at four convenience stores in Shelby, North Carolina. The facts regarding each robbery are summarized below:

         I. The Kangaroo Express Robbery

         In the morning hours of June 29, 2014, Betty Buehner was working as a clerk at the Kangaroo Express at the intersection of Interstate 74 and Beaver Dam Church Road. At approximately 5:00 a.m., Defendant entered the store wearing a bandana and toboggan over his face and head so that only his eyes were visible. Buehner was cleaning the bathrooms in the back of the store and did not hear Defendant enter.

         Buehner testified as follows:

Well, the door opened and somebody nudged me and said, go to your register. I thought he wanted gas or something. I said, okay, I will be there in just a minute. He said, this is [sic] robbery. And he said, I don't want to hurt you, just go to the register. I looked at him and said, you're kidding. He said, no. I said, I will not. If you want it, go get it yourself. I got to get this trash out. So he went to the register and I was still getting my trash out. I got the trash out of that [sic] while he was up there trying to get into the register.

         As Defendant walked back to the register, Buehner observed a gun in Defendant's right hand. Buehner also testified that at some point during the incident Defendant told her he had a gun.

         Upon approaching the cash register, Defendant tried unsuccessfully to open it. Buehner then told him: "[Y]oung man you better hurry because there are going to be people coming in." Shortly thereafter, Buehner heard Defendant leave the store. After he left, Buehner realized Defendant had taken a "box of pennies" that had been sitting near the register. She also testified that it was possible that he took a "roll" of quarters. At that point, Buehner called the police.

         During her testimony, Buehner stated that during her encounter with Defendant she was "never scared" and that Defendant did not actually point the gun at her. When asked on re-cross-examination if Defendant had threatened her, she stated: "Well, he threatened me at first, but I don't think he meant it."

         II. Mike's Food Store Robbery

         On the morning of July 6, 2014, Mary Brock was working the cash register at Mike's Food Store on Earl Road. At approximately 11:30 a.m., Defendant "c[a]me in[to] the store with a gun." He was wearing a black ski mask and hospital gloves. Brock testified that she "automatically put [her] hands up because as soon as he c[a]me in the door, you could see the gun." Defendant approached the register and told Brock to "give [him] the money." Brock removed the cash register drawer and put it on the counter. Defendant told her that he also wanted the money in the "lottery drawer" and ordered her to "hurry up." Brock was unable to remove the drawer so she started "grabbing the money and throwing it up on the counter for him." She told Defendant: "[D]on't hurt me, I got kids." Defendant took all of the money from the counter and left. When asked during cross-examination whether Defendant had actually pointed the gun at her, she responded that he had not done so.

         Christopher Surratt was buying lottery tickets at Mike's Food Store at the time of the robbery. Surratt testified that Defendant "came in and had the gun in his hand." Upon seeing Defendant enter the store with the gun, he backed away from the counter. Surratt testified that he could tell Brock was terrified during this incident.

         III. The ...

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