State v. Marshall

Decision Date19 February 2008
Docket NumberNo. COA07-838.,COA07-838.
Citation656 S.E.2d 709
CourtNorth Carolina Court of Appeals
PartiesSTATE of North Carolina v. Chauncey Lee MARSHALL.

McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III, and Charles K. McCotter, Jr., New Bern, for defendant.

JACKSON, Judge.

Chauncey Lee Marshall ("defendant") appeals from judgments entered upon guilty verdicts for two charges of robbery with a dangerous weapon. For the following reasons, we hold no error in part, arrest judgment in part, and remand for resentencing.

At approximately 7:30 a.m. on 11 March 2006, Nancy Henneke ("Henneke"), assistant manager of the Kangaroo Express ("the Kangaroo Express") on Piney Green Road in Onslow County, observed defendant enter the store. Defendant did not respond to Henneke's greeting and instead proceeded behind the clerk's counter. Defendant came within three or four inches of Henneke and demanded, "I want the money out of the register." Video surveillance showed that "defendant's right arm was located inside of his coat, held at approximately [a] 90[-]degree angle to his body and his hand was pointed forward in the coat." Henneke testified that she believed defendant had a weapon by the way he carried himself and by the way his hand and arm were jammed in his coat. Henneke testified that she was scared and gave him the money from the register, totaling approximately $63.00. She explained that defendant's keeping his hand inside his coat caused her to give the money away. Defendant also demanded money from the safe, but Henneke was unable to access the safe. Defendant left the store, and Henneke locked the doors and called the police. She subsequently identified defendant in a photographic lineup.

At 8:19 a.m. on 11 March 2006, less than one hour after the robbery at the Kangaroo Express, defendant entered the Circle K ("the Circle K") on Pine Valley Road in Onslow County. Toni Cinotti ("Cinotti"), manager of the Circle K, observed defendant enter the store wearing a black puffy jacket. Defendant came behind the counter, and Cinotti began screaming, "I'm being robbed, I'm being robbed." Cinotti testified that defendant kept his hand in his coat and she "knew there was a gun." Defendant insisted, "[G]ive it up, give it all up. I want all of it." Cinotti was terrified and screaming. Defendant reached for Cinotti's cell phone with his left hand, and she jerked it back and threw it. Cinotti testified that defendant never took his right hand out of his coat and that she saw in his jacket what she believed was a handgun:

I saw what was like a grip, I guess [that is] the best way to call it. It was like a black handled—I haven't seen many guns, but I've seen them with like a texture....

.... When he was grabbing for the cell phone, it was a glimpse and it looks like a texture, I guess a handle. It was black. It all happened so quickly, . . . but I was convinced it was a gun.

Cinotti did not see a barrel, trigger, or hammer, but she observed defendant keep his hand on an object with a grip, and when asked if she thought defendant had a gun,

Cinotti stated, "Yes. There was no doubt in my mind." Defendant yelled at Cinotti to open the drawer and stated, "I want it all. I even want what's under the drawer." Cinotti said there was nothing under the drawer, and she gave him the money from the register. Defendant stuffed the money in his jacket and left the store. Although no evidence was presented that defendant actually possessed a gun, surveillance footage showed both a bulge in defendant's jacket and defendant's keeping his right hand in his jacket during the entire encounter.

Defendant was arrested at approximately 10:00 p.m. on the evening after the robberies. In his statement to police, defendant admitted committing the robberies but denied possessing a weapon and claimed that he had pretended to be armed during the robberies. Defendant was indicted on 6 June 2006 for, inter alia, two counts of robbery with a dangerous weapon, and on 13 December 2006, a jury found defendant guilty of both charges. The trial court consolidated the convictions and sentenced defendant as a prior record level IV offender to 117 to 150 months imprisonment.1 Thereafter, defendant gave timely notice of appeal.

On appeal, defendant first contends that the trial court erred by failing to dismiss the indictment in 06 CRS 52283 for failure to properly charge the offense of robbery with a dangerous weapon because (1) the indictment fails to allege that the "implement" was dangerous; and (2) "keeping his hand in his coat" does not constitute a dangerous weapon endangering or threatening the life of the victim.

Preliminarily, we note that defendant failed to raise this issue before the trial court. Nevertheless, it is well-settled that "the failure of a criminal pleading to charge the essential elements of the stated offense is an error of law which may be corrected upon appellate review even though no corresponding objection, exception or motion was made in the trial division." State v. Sturdivant, 304 N.C. 293, 308, 283 S.E.2d 719, 729 (1981); see also State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341 ("[W]here an indictment is alleged to be invalid on its face, thereby depriving the trial court of its jurisdiction, a challenge to that indictment may be made at any time, even if it was not contested in the trial court."), cert. denied, 531 U.S. 1018, 121 S.Ct. 581, 148 L.Ed.2d 498 (2000), reh'g denied, 531 U.S. 1120, 121 S.Ct. 872, 148 L.Ed.2d 784 (2001).

We review the issue of insufficiency of an indictment under a de novo standard of review. See Sturdivant, 304 N.C. at 309, 283 S.E.2d at 730. "A valid bill of indictment is essential to the jurisdiction of the Superior Court to try an accused for a felony and have the jury determine his guilt or innocence, `and to give authority to the court to render a valid judgment.'" State v. Moses, 154 N.C.App. 332, 334, 572 S.E.2d 223, 226 (2002) (quoting State v. Ray, 274 N.C. 556, 562, 164 S.E.2d 457, 461 (1968)). As this Court recently explained.

"North Carolina law has long provided that `[t]here can be no trial, conviction, or punishment for a crime without a formal and sufficient accusation. In the absence of an accusation the court a[c]quires no jurisdiction [whatsoever], and if it assumes jurisdiction a trial and conviction are a nullity.'" In other words, an indictment must allege every element of an offense in order to confer subject matter jurisdiction on the court.

State v. Kelso, ___ N.C.App. ____, 654 S.E.2d 28, 31 (2007) (emphasis added) (alterations in original) (quoting State v. Neville, 108 N.C.App. 330, 332, 423 S.E.2d 496, 497 (1992)).

Pursuant to North Carolina General Statutes, section 14-87(a),

[a]ny person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time, either day or night, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of a Class D felony.

N.C. Gen.Stat. § 14-87(a) (2005). Our Supreme Court has clarified that

[t]he essential elements of robbery with a dangerous weapon are: "(1) an 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."

State v. Haselden, 357 N.C. 1, 17, 577 S.E.2d 594, 605 (quoting State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998)), cert. denied, 540 U.S. 988, 124 S.Ct. 475, 157 L.Ed.2d 382 (2003). "A dangerous or deadly weapon `is generally defined as any article, instrument or substance which is likely to produce death or great bodily harm.'" State v. Wiggins, 78 N.C.App. 405, 406, 337 S.E.2d 198, 199 (1985) (quoting Sturdivant, 304 N.C. at 301, 283 S.E.2d at 725). "[W]hether an instrument can be considered a dangerous weapon depends upon the nature of the instrument, the manner in which defendant used it or threatened to use it, and in some cases the victim's perception of the instrument and its use." State v. Peacock, 313 N.C. 554, 563, 330 S.E.2d 190, 196 (1985).

In the case sub judice, defendant's indictment provides:

The jurors for the State upon their oath present that on or about the date of the offense shown and in Onslow County the defendant named above unlawfully, willfully and feloniously did steal, take, and carry away and attempt to steal, take and carry away another's personal property, U.S. money of the value of $78.00[,] from the person and presence of Nancy L. Henneke, said property belonging to The Pantry, Inc. D/B/A The Kangaroo Express # 896 located at 1079 Piney Green Road, Jacksonville, North Carolina. The defendant committed this act by means of an assault consisting of having in possession and threatening the use of an implement, to wit, keeping his hand in his coat demanding money, whereby the life of Nancy L. Henneke was endangered and threatened.

(Emphasis added). Defendant contends that, as a matter of law, "keeping his hand in his coat demanding money" is insufficient to constitute a dangerous weapon for purposes of an indictment pursuant to section 14-87.

Our Supreme Court has instructed "that it is sufficient for indictments charg[ing] a crime in which one of the elements is the use of a deadly [or dangerous] weapon (1) to name the weapon and (2) either to state...

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