in the Court of Appeals 28 February 2019.
by defendant from judgment entered 11 December 2017 by Judge
Charles H. Henry in Superior Court, Lenoir County No. 15 CRS
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Kimberly D. Potter, for the State.
Law Office, by Craig M. Cooley, for defendant-appellant.
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.
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.
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.
Standard of Review
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
State v. Clevinger, ___ N.C.App. ___, ___, 791
S.E.2d 248, 255 (2016) (citations omitted).
Defendant requested a jury instruction on common law robbery,
we review the instructions de novo.
Lesser Included Offense
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
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
Clevinger, ___ N.C.App. at ___, 791 S.E.2d at 255
(citations, quotation marks, and brackets omitted).
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[.]").
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,