State v. Wiggins, 857SC393

• Decision Date: 17 December 1985
• Docket Number: No. 857SC393,857SC393
• Citation: 337 S.E.2d 198,78 N.C.App. 405
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Toney (sic) WIGGINS.

Page 198

337 S.E.2d 198

78 N.C.App. 405

STATE of North Carolina v. Toney (sic) WIGGINS.

No. 857SC393.

Court of Appeals of North Carolina.

Dec. 17, 1985.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen., John F. Maddrey, for State.

Fitch and Butterfield by James A. Wynn, Jr., for defendant-appellant.

WHICHARD, Judge.

Defendant contends the court erred by instructing that the box cutter used in the robbery was a dangerous weapon per se. He argues that whether the weapon was dangerous was for the jury to determine. We disagree.

Since a dangerous weapon is synonymous with a deadly one, cases resolving whether a particular weapon was deadly per se are relevant. State v. Mullen, 47 N.C.App. 667, 668, 267 S.E.2d 564, 565, disc. rev. denied, 301 N.C. 103, 273 S.E.2d 308 (1980). 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. Sturdivant, 304 N.C. 293, 301, 283 S.E.2d 719, 725 (1981).

Where the alleged [dangerous] weapon and the manner of its use are of such character as to admit of but one conclusion, the question as to whether ... it is [dangerous] within the foregoing definition is one of law, and the [c]ourt must take the responsibility of so declaring.

State v. Buchanan, 28 N.C.App. 163, 165, 220 S.E.2d 207, 208-09 (1975), disc. rev. denied, 289 N.C. 452, 223 S.E.2d 161 (1976) quoting State v. Smith, 187 N.C. 469, 121 S.E. 737 (1924). See also State v. Carson, 296 N.C. 31, 46, 249 S.E.2d 417, 426 (1978).

Here, while no detailed verbal description of the box cutter was offered, the court admitted the weapon itself into evidence. While a verbal description supplemental to introduction of the weapon would have been preferable, its omission was not fatal. In State v. Parker, 7 N.C.App. 191, 171 S.E.2d 665 (1970), this Court held that the trial court did not err in declaring a steak knife a deadly weapon per se despite absence of a verbal description. Here, as in Parker, the weapon was admitted into evidence, thereby enabling the court "to determine for [itself] an adequate description." 7 N.C.App. at 195, 171 S.E.2d at 667.

Pursuant to N.C.R.App.P. 9(b)(5), we have ordered the box cutter "sent up and added to the record on appeal." The cutter has an exposed, sharply pointed razor blade clearly capable of producing death or great bodily harm. The victim testified that defendant held the cutter a couple of inches from her side as he instructed her to open the cash register. From that position a slight movement of defendant's hand in the direction of the victim's side clearly could have resulted in death or great bodily harm. Accordingly, as in Parker, supra, we hold that the court did not err by instructing that the weapon was dangerous per se.

Defendant contends the court erred by denying his motion to dismiss because of insufficient evidence that he used a dangerous weapon to endanger or threaten the life of the victim. We disagree.

Upon a motion to dismiss in a criminal action the court must consider the evidence "in the light most favorable to the State, giving the State the benefit of every reasonable inference that might be drawn therefrom." State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). The court "must decide whether there is substantial evidence of each element of the offense charged." Id. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id.

Defendant correctly asserts that the determinative question is "whether there was evidence sufficient to support a jury finding that [the victim's] life was in fact endangered or threatened by defendant's possession, use or threatened use of the [box cutter]." State v. Moore, 279 N.C. 455, 459, 183 S.E.2d 546, 548 (1971). He maintains that such evidence was not presented. No evidence was offered, however, suggesting that the box cutter was anything but a dangerous weapon. As held above, the court properly declared it a dangerous weapon per se. Since defendant used a dangerous weapon, there is a mandatory presumption that the victim's life was in fact endangered or threatened.

When a person commits a robbery by the use or threatened use of an implement which appears to be a firearm or other dangerous weapon, the law presumes, in the absence of any evidence to the contrary, that the instrument is what his conduct represents it to be--an implement endangering or threatening the life of the person being robbed. [Citations omitted.] Thus, where there is evidence that a defendant has committed a robbery with what appears to the victim to be a firearm or other dangerous weapon and nothing to the contrary appears in evidence, the presumption that the victim's life was endangered or...