State v. Lee

• Decision Date: 03 February 1998
• Docket Number: No. COA97-302,COA97-302
• Citation: 495 S.E.2d 373,128 N.C.App. 506
• Parties: STATE of North Carolina v. Kemund Lamont LEE, Defendant.
• Court: North Carolina Court of Appeals

Page 373

495 S.E.2d 373

128 N.C.App. 506

STATE of North Carolina v. Kemund Lamont LEE, Defendant.

No. COA97-302.

Court of Appeals of North Carolina.

Feb. 3, 1998.

Attorney General Michael F. Easley by Assistant Attorney General Daniel D. Addison, for the State.

John T. Hall, Raleigh, for defendant-appellant.

EAGLES, Judge.

We first consider whether the trial court erred in permitting the jury, at its request, to view the fingerprint card containing fingerprints obtained at the scene of the crime. Defendant argues that the trial court erred by allowing the jury, after beginning their deliberation, to examine State's Exhibit number one, a fingerprint card containing the latent print obtained from the greeting card found in the apartment of the victim, Ms. Green. We disagree.

If a jury after retiring requests to review the evidence, the judge in his discretion, after notice to the prosecutor and defendant, may permit the jury to examine in open court any requested materials which have been admitted into evidence. G.S. 15A-1233(a). By contrast, G.S. 15A-1233(b) provides: "Upon request by the jury and with the consent of all parties, the judge may in his discretion permit the jury to take to the jury room exhibits and writings which have been received into evidence." In order for the trial judge to allow the jury to take the requested evidence into the deliberation room, the judge must have consent from both the State and the defendant. However, if the judge simply lets the jury examine the requested evidence in open court but does not allow the jury to take it into the jury room, there is no necessity for obtaining the consent of the parties.

Here, the judge permitted the jury, as it requested, to view in open court the fingerprint card containing the defendant's latent fingerprint. The judge specifically denied the jury's request to take the fingerprint card back into the jury room. Accordingly, this assignment of error fails.

In order to show that the trial judge erred in permitting the jury, without consent of the State and the defendant, to view the evidence in the courtroom, defendant must show that the trial court abused its discretion. G.S. 15A-1233(b). To show an abuse of discretion, "defendant must demonstrate that the trial court's action was so arbitrary that it could not have been the result of a reasoned decision." State v. Cannon, 341 N.C. 79, 87, 459 S.E.2d 238, 243 (1995) (quoting State v. Weddington, 329 N.C. 202, 209, 404 S.E.2d 671, 676 (1991)) (quoting State v. Wilson, 313 N.C. 516, 538, 330 S.E.2d 450, 465 (1985)).

Here, the trial judge's decision was based on the fact that the fingerprint card had been admitted into evidence and that there was no eyewitness identification of defendant. Given the significance of the fingerprint identification evidence, the trial judge's decision is a reasoned one. Accordingly, we conclude the trial court did not abuse its discretion and this assignment of error is overruled.

We next consider whether the trial court erred in denying defendant's motion to dismiss. Defendant asserts that the evidence introduced at trial was insufficient to support the charges and convictions. Defendant argues that the victim was unable to identify him as the perpetrator.

Concerning defendant's motion to dismiss the charge of robbery with a dangerous weapon, defendant argues that there was insufficient evidence that defendant had a firearm at the time of the robbery. Defendant argues that because the trial judge dismissed the first degree rape charge for insufficient evidence of a firearm, the judge was required to dismiss the armed robbery charge for the same reason. We disagree.

A defendant may be convicted of first degree rape if, while committing the crime, he "employs or displays a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous or deadly weapon." G.S. 14-27.2. (Emphasis added). By contrast, a defendant may be convicted of armed robbery if he commits the robbery "having in possession or with the use or threatened use " of any firearm or other dangerous weapon. G.S. 14-87(a). (Emphasis added). To obtain a conviction for armed robbery, it is not necessary for the State to prove that the defendant displayed the firearm to the victim. Proof of armed robbery requires that the victim reasonably believed that the defendant possessed, or used or threatened to use a firearm in the perpetration of the crime. State v. Thompson, 297 N.C. 285, 289, 254 S.E.2d 526, 528 (1979). The State need only prove that the defendant represented that he had a firearm and that circumstances led the victim reasonably to believe that the defendant had a firearm and might use it. State v. Williams, 335 N.C. 518, 522, 438 S.E.2d 727, 729 (1994).

In State v. Williams, the Court...