State v. Rowland

• Decision Date: 05 April 1988
• Docket Number: No. 8726SC744,8726SC744
• Citation: 366 S.E.2d 550,89 N.C. App. 372
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Rodney William ROWLAND.

Page 550

366 S.E.2d 550

89 N.C.App. 372

STATE of North Carolina v.Rodney William ROWLAND.

No. 8726SC744

Court of Appeals of North Carolina.

April 5, 1988.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. David R. Minges, Raleigh, for the State.

Public DefenderIsabel Scott Day by Asst. Public DefenderMarc D. Towler, Charlotte, for defendant-appellant.

JOHNSON, Judge.

The State presented evidence which tended to show the following.Between 9:30 and 10:00 p.m., Friday, 25 April 1986, David DeStefani was driving his vehicle in the one hundred block of Church Street of downtown Charlotte.As he proceeded through the intersection of Church and Trade Streets, defendant, who was walking across the street, hit his backpack against the rear quarter panel of DeStefani's car.DeStefani pulled his car over, got out, walked toward defendant, and asked defendant if there was a problem.Defendant responded that there was a problem and asked DeStefani for either his wallet or his money.DeStefani became scared and stepped back.Defendant then pulled a pocketknife 5 to 5 1/2 inches long with a 2 1/2 to 3 inch blade.Defendant held the knife in his right hand with the knife open and the blade up, moved toward DeStefani and said, "Give me your wallet."Defendant reached around DeStefani with his left hand for DeStefani's wallet.DeStefani grabbed defendant's left arm and a struggle ensued.During the struggle two of DeStefani's friends drove up, stopped and asked if everything was all right.Defendant responded, "No, I'm going to kill him."DeStefani's friends then drove further down the street and stopped.Defendant then told DeStefani, "You better give me your money or I'm going to cut you anyway."Defendant closed the knife and put it in his pocket.As the struggle continued, DeStefani managed to remove the knife from defendant's pocket, opened it and told defendant to stand back.Defendant responded by reaching for his backpack and saying that he had a gun in it and he was going to shoot DeStefani.As defendant opened the backpack, DeStefani closed the knife, threw it away and started for his car.Defendant struck him twice about the face and again threatened to shoot him.DeStefani managed to get into his car and drive down the street to where his friends had pulled over.He told them defendant did not get his wallet or cut him.DeStefani did not report the incident to the police because he was all right, defendant did not get his money and he"figured" the police would not catch defendant because defendant"took off."

On Sunday afternoon, 27 April 1986, DeStefani was in downtown Charlotte at the Springfest when he noticed defendant standing on a corner.DeStefani approached two officers and told them that defendant had tried to rob him on Friday night.The officers approached defendant and confronted him with DeStefani's accusations.Defendant denied any knowledge of the incident and said that he was working Friday night.

Defendant testified in his own behalf to the following: That on the night in question, he was at the intersection of Church and Trade Streets in downtown Charlotte, waiting to cross the street, and when the signal indicated "walk,"he began crossing the street at which time the car driven by DeStefani almost hit him.He hit the back of the car with his hand, and the car pulled over to the side suddenly.DeStefani "jumped out" of the car like he wanted to fight and said, "What's your problem?"He became scared and pulled out his pocket knife as DeStefani approached him because DeStefani was twice his size.DeStefani grabbed his arm and spun him around.As they struggled, he closed the knife and put it in his pocket and told DeStefani to "stop, forget it."DeStefani reached into defendant's pocket, grabbed the knife, opened it and threw it into the street.DeStefani shoved him and he slapped DeStefani.During the struggle defendant told DeStefani he was going to kill him only because he was mad and DeStefani almost hit him as he was crossing the street.In addition, defendant stated that he had no intention of actually killing him.Defendant denied having a gun, or asking or reaching for DeStefani's money or wallet, or saying anything about robbing or shooting him.Defendant's description of the knife is as follows: "the blade on it was probably two and one half or three inches long, opened probably five and one half inches long, and a real skinny blade, maybe a half an inch thick.It was like a whittling knife like you whittle, you know, with wood, like a carving knife, ..."By his first Assignment of Error, defendant contends the trial court erred in failing to give defendant's requested instruction on assault with a deadly weapon.Defendant preserved his right to assign as error this omission by properly objecting at trial.Rule 10(b)(2),N.C. Rules of App.P.

The State contends that assault with a deadly weapon is not a lesser included offense of attempted armed robbery; therefore, the State argues, the trial court was not required to instruct on the offense of assault with a deadly weapon even if there was evidence from which the lesser crime could be found.

It is clear from the evidence of this case that there was evidence from which the lesser crime could be found.Although the State presented evidence which tended to show that defendant, armed with a pocket knife, threatened to cut and kill DeStefani if DeStefani did not give him his wallet and money, and that the attack and robbery were thwarted by DeStefani grabbing defendant's hand, defendant testified that he drew the knife on DeStefani and threatened to kill him, but never requested or demanded DeStefani's wallet or money.From defendant's testimony, the lesser crime of assault with a deadly weapon could be found.

If the offense of assault with a deadly weapon is a lesser included offense of attempted armed robbery, then the trial court was required to give defendant's requested instruction.For it is a well established rule in this jurisdiction that:

[w]hen there is conflicting evidence of the essential elements of the greater crime and evidence of a lesser included offense, the trial judge must instruct on the lesser included offense....

State v. Odom, 307 N.C. 655, 659, 300 S.E.2d 375, 378(1983)( quoting State v. Brown, 300 N.C. 41, 50, 265 S.E.2d 191, 197(1980)).See also, State v. Bell, 284 N.C. 416, 200 S.E.2d 601(1973).

In State v. Weaver, 306 N.C. 629, 635, 295 S.E.2d 375, 378-79(1982), our Supreme Court held that:

[T]he facts of a particular case should [not] determine whether one crime is a lesser included offense of another.Rather, the definitions accorded the crimes determine whether one offense is a lesser included offense of another crime.(Citation omitted.)In other words, all of the essential elements of the lesser crime must also be essential elements included in the greater crime.If the lesser crime has an essential element which is not completely covered by the greater crime, it is not a lesser included offense.The determination is made on a definitional, not a factual basis.

The essential elements of attempted armed robbery, as set forth in G.S. 14-87(a), are:

(1) the unlawful attempted taking of personal property from another;

(2) the possession, use or threatened use of a firearm or other dangerous weapon, implement or means; and

(3) danger or threat to the life of the victim.

See also, State v. Torbit, 77 N.C.App. 816, 336 S.E.2d 122(1985).

Attempted armed robbery occurs when the defendant, with the requisite intent to rob, does some overt act calculated toward unlawfully depriving another of his personal property by endangering or threatening his life with a dangerous weapon.State v. Irwin, 304 N.C. 93, 282 S.E.2d 439(1981);State v. Price, 280 N.C. 154, 184 S.E.2d 866(1971).The overt act done towards unlawfully depriving another of his personal property must be beyond mere preparation, but falling short of completion.State v. Powell, 277 N.C. 672, 178 S.E.2d 417(1971).

The essential elements of an assault with a deadly weapon are:

(1) The assault of a person;

(2) With the use of a deadly weapon.

G.S. 14-33.

The word assault has been defined as an overt act or attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or violence must be sufficient to put a person of reasonable firmness in fear of immediate physical injury.State v. Roberts, 270 N.C. 655, 155 S.E.2d 303(1967).

While we are cognizant of cases of this Court which have held that assault with a deadly weapon is a lesser included offense of attempted armed robbery, see, State v. Sanders, 29 N.C.App. 662, 225 S.E.2d 620(1976);State v. Blackmon, 28 N.C.App. 255, 220 S.E.2d 850(1976);State v. Harris, 27 N.C.App. 520, 219 S.E.2d 538(1975), these cases were decided before our Supreme Court adopted the definitional test in Weaver, supra, as the formula to be used in determining whether one offense is a lesser included offense of another crime.

Applying the definitional test set forth in Weaver, we are of the opinion that the offense of assault with a deadly weapon is not a lesser included offense of attempted armed robbery.The only inherent, essential element common to both offenses, attempted armed robbery and assault with a deadly weapon, is the element of the use of a dangerous weapon.Fear, a reasonable apprehension on the part of the victim of immediate bodily harm or injury, is an essential element of the offense of assault with a deadly weapon but is not an inherent, essential element of attempted armed robbery.In other words, to prove the crime of attempted armed robbery, the State does not necessarily have to prove that an assault occurred.On the other hand, to prove an assault with a deadly weapon the State must show as an essential element that an assault occurred.Fear is an essential element of assault with a deadly weapon which is not...