State v. Hedgecoe
| Decision Date | 05 May 1992 |
| Docket Number | No. 9126SC638,9126SC638 |
| Citation | 415 S.E.2d 777,106 N.C.App. 157 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Bobby Lee HEDGECOE, Jr. |
Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen., Kathryn Jones Cooper, Raleigh, for State.
William M. Davis, Jr., Asst. Public Defender, Charlotte, for defendant-appellant.
Defendant presents three assignments of error to this Court on appeal. He assigns error to the trial court's denial of his motion to instruct the jury on the lesser included offenses of assault with a deadly weapon and simple assault on the ground the evidence presented at trial would support a verdict from the jury on either of the lesser offenses. Defendant also assigns error to the trial court's denial of his motion to amend the jury instructions as to the elements of common law robbery on the ground that the instructions did not conform to the language of the indictment. Defendant last assigns error to the verdict of guilty of possession of drug paraphernalia on the ground it was unsupported by the evidence and to the trial court's denial of his motion to poll the jury to determine the ground on which he was found guilty of common law robbery.
Defendant first assigns error to the trial court's denial of his motion to instruct the jury on the crimes of assault with a deadly weapon and simple assault as lesser included offenses of common law robbery. He contends the trial court committed prejudicial error by denying his motion and that the evidence presented at trial would allow the jury to convict him of either of these lesser offenses if the jury had received instructions on them. We disagree.
A defendant is entitled to jury instructions on a lesser included offense of a crime, even in the absence of a specific request for such instruction, when there is some evidence to support the lesser offense. State v. Chambers, 53 N.C.App. 358, 280 S.E.2d 636 (1981). However, when all the evidence tends to show that defendant committed the crime with which he is charged and there is no evidence of guilt of the lesser included offense, the court correctly refuses to charge on the unsupported lesser offense. Id; citing State v. Redfern, 291 N.C. 319, 230 S.E.2d 152 (1976).
Defendant was tried on the charge of committing common law robbery. The elements of the offense of common law robbery are (1) the felonious, non-consensual taking of (2) money or personal property (3) from the person or presence of another (4) by means of violence or fear. State v. Smith, 305 N.C. 691, 292 S.E.2d 264, cert. denied, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982).
It is clear the evidence presented by the State establishes that defendant committed the crime of common law robbery by acting in concert with his co-defendant. The State's evidence tended to show that defendant and Davis positioned themselves to accost Duckworth by hiding between buildings and behind bushes in a field. Davis asked Duckworth for money several times and was soon joined by defendant who repeated the requests. Defendant and Davis grabbed Duckworth and defendant held Duckworth by his shirt as Davis took his necklaces. Further, defendant pointed an inoperable gun at Duckworth's chest demanding money from him and preventing Duckworth's attempt to get away from defendant.
The evidence presented by the State establishes that defendant committed only the crime of common law robbery against Duckworth. Defendant's evidence only tended to show that he committed no offense, not a lesser offense. The trial court was correct in denying his request for instructions on the lesser crimes of assault with a deadly weapon and simple assault. Therefore, this assignment of error is overruled.
Defendant next assigns error to the trial court's denial of his motion to amend the jury instructions on the charge of common law robbery. He contends the language of the jury instruction on this charge should have conformed to the charge in defendant's indictment that he robbed Duckworth of jewelry rather than "personal property." He further contends that the failure of the trial court to amend the instruction may have allowed the jury to convict defendant on evidence presented at trial that he also took a dollar bill rather than jewelry as charged in the indictment. We disagree.
It is well settled that the trial court must instruct the jury on all substantial and essential issues of a case arising on the evidence presented at trial. State v. Lawrence, 94 N.C.App. 380, 380 S.E.2d 156, review denied, 325 N.C. 548, 385 S.E.2d 506 (1989). It is equally well settled that the trial court is not required to give a requested instruction in the exact language of the request, so long as the instruction is given in substance. State v. Townsend, 99 N.C.App. 534, 393 S.E.2d 551 (1990).
Our review of the contested jury instruction shows that the trial court properly charged the jury on the elements of common law robbery. The trial court's use of the term "personal property" rather than "jewelry" as found in the indictment cannot be considered prejudicial in the context of the evidence. Defendant seeks to draw a distinction between the charge in the indictment and the evidence presented at trial that defendant did not physically remove jewelry from Duckworth but rather took money instead. This distinction is irrelevant. Defendant was tried on the theory of acting in concert with Davis and the evidence presented at trial clearly shows that defendant and Davis acted in concert to take the property and money of Duckworth from his person by fear and violence. Defendant need not have physically removed Duckworth's personal property in order to be guilty of common law robbery. This assignment of error is also overruled.
Defendant next assigns error to the jury's verdict finding him guilty of possession of drug paraphernalia. He contends the evidence presented by the State was insufficient to convict him of this crime and that the trial court should have granted his motions to dismiss this charge for insufficiency of the evidence and not submit this issue to the jury....
To continue reading
Request your trial
-
State v. Staten
...of (2) money or other personal property (3) from the person or presence of another (4) by means of force. State v. Hedgecoe, 106 N.C.App. 157, 161, 415 S.E.2d 777, 780 (1992). Therefore, although the evidence fails to support a conviction of armed robbery, it nevertheless is sufficient to s......
-
State v. Garrett
...and had "the intent to use the [drug paraphernalia] in connection with the controlled substance." State v. Hedgecoe, 106 N.C.App. 157, 164, 415 S.E.2d 777, 781 (1992). Although defendant did not have exclusive control over the interior of the car where the glass pipe was found, the State pr......
-
United States v. Graves
...appear to have collapsed the elements of lack of consent and specific intent into the first element. See, e.g., State v. Hedgecoe, 106 N.C.App. 157, 415 S.E.2d 777, 780 (1992) (citation omitted). The substantive elements, however, appear to remain unchanged.33 The government does not argue ......
-
Brooks v. United States
...that defendant had used pipe to smoke marijuana and no evidence that pipe had residue from illegal substance); State v. Hedgecoe, 106 N.C.App. 157, 415 S.E.2d 777, 781 (1992) (evidence insufficient to support conviction for possession of drug paraphernalia with intent to use in connection w......