in the Court of Appeals 20 February 2017.
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.
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
Factual and Procedural Background
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
The Kangaroo Express Robbery
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.
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.
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
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.
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."
Mike's Food Store Robbery
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.
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.