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State v. Redmond

Court of Appeals of North Carolina

August 6, 2019

STATE OF NORTH CAROLINA
v.
MORQUEL DESHAWN REDMOND

          Heard in the Court of Appeals 28 February 2019.

          Appeal by defendant from judgment entered 11 December 2017 by Judge Charles H. Henry in Superior Court, Lenoir County No. 15 CRS 50472.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Kimberly D. Potter, for the State.

          Cooley Law Office, by Craig M. Cooley, for defendant-appellant.

          STROUD, JUDGE.

         Morquel Redmond appeals his conviction of robbery with a dangerous weapon. Defendant argues that the trial court erred by failing to instruct the jury on the lesser included offense of common law robbery. Because the trial court could have found the box cutter to be a dangerous weapon as a matter of law, despite submitting this issue to the jury, Defendant was not entitled to a jury instruction on the lesser included offense of common law robbery. Defendant's trial was free of prejudicial error.

         I. Background

         The State's evidence tended to show that on 20 March 2015, Defendant robbed a Tobacco Road Outlet in Kinston. Linda Walston was working in the store at the time of the robbery. Defendant and Ms. Walston struggled until Defendant brandished a box cutter and threatened her. Defendant then dragged Ms. Walston to the back room of the store and tied her up with a cord. Defendant took cash out of the register and fled, leaving Ms. Walston tied up.

         Law enforcement officers identified Defendant from video surveillance images from the store, with the help of Defendant's mother. Defendant was taken into custody, and officers searched his vehicle and found two box cutters. Defendant was indicted for robbery with a dangerous weapon and first degree kidnapping. At trial, after a Harbison inquiry, Defendant admitted that he committed the offenses of common law robbery and second-degree kidnapping. Ms. Walston testified about the events of 20 March 2015, and the State introduced video surveillance from the store during the robbery. Defendant did not present any evidence. During the charge conference, Defendant's counsel requested an instruction on common law robbery which was denied by the trial court. Defendant was found guilty of robbery with a dangerous weapon and first-degree kidnapping and sentenced within the presumptive range. Defendant timely appealed and only challenges his robbery with a dangerous weapon conviction.

         II. Standard of Review

         Defendant argues that "the trial court erred when it refused to issue a lesser-include[d] offense instruction for common law robbery." The State contends that "Defendant is not entitled to an instruction on the lesser included offense because the evidence does not show that a rational jury would find him guilty of common law robbery given the extensive testimony [presented at Defendant's trial]."

We review de novo the trial court's decision regarding its jury instructions. The trial court must "instruct the jury on all substantial features of a case raised by the evidence." "Failure to instruct upon all substantive or material features of the crime charged is error." On the other hand, "a trial judge should not give instructions to the jury which are not supported by the evidence produced at the trial."
"An instruction on a lesser-included offense must be given only if the evidence would permit the jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater." If, however, "the State's evidence is clear and positive with respect to each element of the offense charged and there is no evidence showing the commission of a lesser included offense, it is not error for the trial judge to refuse to instruct on the lesser offense."

State v. Clevinger, ___ N.C.App. ___, ___, 791 S.E.2d 248, 255 (2016) (citations omitted).

         Because Defendant requested a jury instruction on common law robbery, we review the instructions de novo.

         III. Lesser Included Offense

         A defendant is "entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater." State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924 (2000). Only one element distinguishes common law robbery and robbery with a dangerous weapon, and that element is the use of a dangerous weapon:

Robbery with a dangerous weapon consists of the following elements: (1) the unlawful taking or an attempt to take personal property from the person or in the presence of another (2) by use or threatened use of a firearm or other dangerous weapon (3) whereby the life of a person is endangered or threatened. Common law robbery is a lesser-included offense of robbery with a dangerous weapon. The difference between the two offenses is that robbery with a dangerous weapon is accomplished by the use or threatened use of a dangerous weapon whereby the life of a person is endangered or threatened.
A deadly weapon is generally defined as any article, instrument or substance which is likely to produce death or great bodily harm. Relevant here, the evidence in each case determines whether a certain kind of knife is properly characterized as a lethal device as a matter of law or whether its nature and manner of use merely raises a factual issue about its potential for producing death. The dangerous or deadly character of a weapon with which the accused was armed in committing a robbery may be established by circumstantial evidence.

Clevinger, ___ N.C.App. at ___, 791 S.E.2d at 255 (citations, quotation marks, and brackets omitted).

         Defendant raises three arguments in his brief: "(1) the State never presented the box cutter, (2) Walston did not suffer any injuries from the box cutter, and (3) the trial court did not find the box cutter to be a deadly weapon as a matter of law[.]" The State's failure to present the box cutter as evidence, and the absence of injuries are facts the jury could consider in its determination of whether the box cutter was used as a "dangerous weapon," but neither are required for a weapon to be a "dangerous weapon" under the law. See id. The weight to give to the evidence is for the jury to determine. See State v. Collins, 30 N.C. 407, 412-13 (1848) ("Whether the instrument used was such as is described by the witnesses, where it is not produced, or, if, produced, whether it was the one used, are questions of fact[.]").

         Next, physical injuries are not required for a dangerous weapon to be considered dangerous. See State v. Young, 317 N.C. 396, 417, 346 S.E.2d 626, 638 (1986) ("In order to be characterized as a 'dangerous or deadly weapon,' an instrumentality need not have actually inflicted serious injury. A dangerous or deadly weapon is 'any article, ...


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