State v. Thomas, 8626SC767

• Decision Date: 21 April 1987
• Docket Number: No. 8626SC767,8626SC767
• Citation: 354 S.E.2d 891,85 N.C.App. 319
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Duane THOMAS.

Page 891

354 S.E.2d 891

85 N.C.App. 319

STATE of North Carolina v. Duane THOMAS.

No. 8626SC767.

Court of Appeals of North Carolina.

April 21, 1987.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. George W. Boylan, Raleigh, for the State.

Asst. Public Defender James E. Williams, Jr., Charlotte, for defendant-appellant.

GREENE, Judge.

Defendant was tried for robbery with a dangerous weapon from George Nicoll and robbery with a dangerous weapon from Laurence Dorilla Nicoll. The jury returned a verdict of guilty to both charges, and the trial judge sentenced defendant to 28 years in prison.

The evidence offered during the course of the trial tends to show that on or about 11:30 p.m. on 18 April 1985, Mr. and Mrs. Nicoll pulled their car into the parking lot of their apartment complex in Charlotte. They got out of the car--he from the driver's side, she from the passenger's. As the couple turned toward the apartment building, defendant stood in front of Mr. Nicoll with what appeared to be a shotgun. Two inches of the barrel protruded from a dark cloth. The defendant held the end of the barrel about nine inches from Mr. Nicoll's face. He reached for a notebook protruding from Mr. Nicoll's pocket. When Mr. Nicoll began to explain he had no money there, defendant hit him across the face and he fell to the ground, bleeding from the wound. Then defendant straddled Mr. Nicoll and took his wallet and wristwatch.

During this time, Mrs. Nicoll was about a foot away from her husband. She witnessed the entire assault. After the defendant had taken Mr. Nicoll's wallet and watch, he stepped away from him, and Mrs. Nicoll went toward her husband. As she did, the strap of her shoulder bag slipped off her shoulder onto her upper arm. With the weapon still in his hand, defendant took the shoulder bag from her arm and left. The defendant did not strike Mrs. Nicoll, never pointed the gun at her and never spoke to her.

At the end of State's evidence, defendant moved to dismiss both counts of robbery with a dangerous weapon for insufficient evidence. The trial court denied the motions and instructed the jury on both charges. The jury returned with verdicts of guilty. The trial judge gave the presumptive sentence of 14 years for each charge and ordered the sentences to run consecutively.

Defendant appeals and presents three issues: (1) whether the trial court erred in denying defendant's motion to dismiss the charge of robbery of Mrs. Nicoll with a dangerous weapon, (2) whether the court's instructions to the jury were proper, and (3) whether the court committed error in sentencing the defendant.

I

Defendant argues on appeal there was insufficient evidence he robbed Mrs. Nicoll with a dangerous weapon.

The relevant statute is N.C.Gen.Stat. Sec. 14-87(a):

Any 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 ... shall be guilty of a Class D felony. (Emphasis added.)

The crimes described by this statute are commonly known as armed robbery and attempted armed robbery. Defendant contends the record contains no evidence he took Mrs. Nicoll's shoulder bag by threatening or endangering her life with a firearm.

The possession, use or threatened use of a firearm is a separate element from "endangering or threatening" the life of a person in the crime of armed robbery. State v. Joyner, 295 N.C. 55, 63, 243 S.E.2d 367, 373 (1978). The mere possession of a firearm during the course of taking property is not a violation of N.C.Gen.Stat. Sec. 14-87(a), State v. Gibbons, 303 N.C. 484, 279 S.E.2d 574 (1981); the firearm must be used to endanger or threaten the life of a person as that element is the essence of armed robbery. State v. Covington, 273 N.C. 690, 161 S.E.2d 140 (1968).

Defendant contends Mrs. Nicoll's life was not endangered or threatened within the meaning of the statute because there was no substantial evidence to show his violence was not solely for the purpose of taking Mr. Nicoll's property. He contends he took Mrs. Nicoll's shoulder bag as an afterthought and though the evidence might be sufficient to prove common law robbery, it was not sufficient to prove armed robbery. He concedes if he had taken Mrs. Nicoll's shoulder bag while pointing the gun at her or told her to give him her shoulder bag and verbally threatened her life, he would have committed armed robbery. However, it is clear from the evidence that defendant did threaten the life of Mrs. Nicoll. Defendant's assault of Mr. Nicoll in order to take his property spoke louder than any words of threat could have spoken to Mrs. Nicoll.

Mrs. Nicoll was aware of defendant's taking her purse from her arm; she did not resist. She had been standing about a foot from her husband during defendant's assault upon him. While standing there, she had seen defendant reach for her husband's notebook then knock him to the ground. She had then seen defendant take her husband's watch and wallet. It is clear from this evidence that defendant made a threat to Mrs. Nicoll's life. The threat did not end when defendant finished robbing Mr. Nicoll but continued through the time he took Mrs. Nicoll's shoulder bag. Evidence of a continuing threat meets the element of endangering or threatening a person's life in an armed robbery charge. See State v. Joyner, 295 N.C. 55, 64, 243 S.E.2d 367, 373 (1978). Accordingly, we find the trial court did not err in denying defendant's motion to dismiss the charge of robbery of Mrs. Nicoll with a dangerous weapon.

II

Defendant next complains of a jury instruction to which he did not object at trial.

In Case No. 85CRS31915, the trial court instructed the jury that if they found beyond a reasonable doubt that, among other things, defendant had carried property away from Mrs. Nicoll without her voluntary consent "by endangering or threatening her or her husband's life with the use or threatened use of a gun," then it would be their duty to return a verdict of guilty of robbery with a firearm. The indictment in Case No. 85CRS31915, however, charged only that Mrs. Nicoll's life was endangered or threatened.

The trial court erred in permitting the jury to convict upon a theory not supported by the bill of indictment. See State v. Taylor, 301 N.C. 164, 170, 270 S.E.2d...