State v. Wright , 252 N.C. App. 501 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1017
Filed: 4 April 2017
Cleveland County, Nos. 14 CRS 54140-41, 15 CRS 392
STATE OF NORTH CAROLINA
v.
REGIS LEE WRIGHT
Appeal by defendant from judgments entered 14 April 2016 by Judge Daniel
A. Kuehnert in Cleveland County Superior Court. Heard in the Court of Appeals 20
February 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L.
Hyde, for the State.
Marilyn G. Ozer for defendant-appellant.
DAVIS, Judge.
The primary issue in this appeal is whether a defendant charged with armed
robbery is entitled to a jury instruction on the lesser-included offense of common law
robbery where there is no evidence that the gun held by the defendant was actually
pointed at the victim or that the victim actually feared for her life upon observing the
gun. Regis Lee Wright (“Defendant”) was convicted of armed robbery based on
evidence showing that he entered three convenience stores with a gun in his hand
and stole money in the presence of the stores’ clerks. Because the State introduced
uncontradicted evidence satisfying each element of armed robbery, we hold that no
instruction on common law robbery was required.
STATE V. WRIGHT
Opinion of the Court
Factual and Procedural Background
The State presented evidence at trial tending to show the following facts:
Defendant was charged with four counts of robbery with a dangerous weapon
stemming from robberies occurring at four convenience stores in Shelby, North
Carolina. The facts regarding each robbery are summarized below:
I. The Kangaroo Express Robbery
In the morning hours of June 29, 2014, Betty Buehner was working as a clerk
at the Kangaroo Express at the intersection of Interstate 74 and Beaver Dam Church
Road. At approximately 5:00 a.m., Defendant entered the store wearing a bandana
and toboggan over his face and head so that only his eyes were visible. Buehner was
cleaning the bathrooms in the back of the store and did not hear Defendant enter.
Buehner testified as follows:
Well, the door opened and somebody nudged me and said,
go to your register. I thought he wanted gas or something.
I said, okay, I will be there in just a minute. He said, this
is [sic] robbery. And he said, I don’t want to hurt you, just
go to the register. I looked at him and said, you’re kidding.
He said, no. I said, I will not. If you want it, go get it
yourself. I got to get this trash out. So he went to the
register and I was still getting my trash out. I got the trash
out of that [sic] while he was up there trying to get into the
register.
As Defendant walked back to the register, Buehner observed a gun in
Defendant’s right hand. Buehner also testified that at some point during the incident
Defendant told her he had a gun.
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Upon approaching the cash register, Defendant tried unsuccessfully to open it.
Buehner then told him: “[Y]oung man you better hurry because there are going to be
people coming in.” Shortly thereafter, Buehner heard Defendant leave the store.
After he left, Buehner realized Defendant had taken a “box of pennies” that had been
sitting near the register. She also testified that it was possible that he took a “roll”
of quarters. At that point, Buehner called the police.
During her testimony, Buehner stated that during her encounter with
Defendant she was “never scared” and that Defendant did not actually point the gun
at her. When asked on re-cross-examination if Defendant had threatened her, she
stated: “Well, he threatened me at first, but I don’t think he meant it.”
II. Mike’s Food Store Robbery
On the morning of July 6, 2014, Mary Brock was working the cash register at
Mike’s Food Store on Earl Road. At approximately 11:30 a.m., Defendant “c[a]me
in[to] the store with a gun.” He was wearing a black ski mask and hospital gloves.
Brock testified that she “automatically put [her] hands up because as soon as he
c[a]me in the door, you could see the gun.” Defendant approached the register and
told Brock to “give [him] the money.” Brock removed the cash register drawer and
put it on the counter. Defendant told her that he also wanted the money in the
“lottery drawer” and ordered her to “hurry up.” Brock was unable to remove the
drawer so she started “grabbing the money and throwing it up on the counter for
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Opinion of the Court
him.” She told Defendant: “[D]on’t hurt me, I got kids.” Defendant took all of the
money from the counter and left. When asked during cross-examination whether
Defendant had actually pointed the gun at her, she responded that he had not done
so.
Christopher Surratt was buying lottery tickets at Mike’s Food Store at the time
of the robbery. Surratt testified that Defendant “came in and had the gun in his
hand.” Upon seeing Defendant enter the store with the gun, he backed away from
the counter. Surratt testified that he could tell Brock was terrified during this
incident.
III. The Fastop Robbery
On the morning of June 29, 2014, James Stegall was working as a clerk at a
Fastop on East Dixon Boulevard. At approximately 5:30 a.m., Defendant entered the
store with his face and head covered and approached the counter where Stegall was
working. Defendant “laid across the counter with a gun in his hand and said give it
up.” Stegall took a step back and put his hands up. He noticed the gun was a “grayish
color” and testified that Defendant pointed the gun at him “a couple of times.” Stegall
then “walked to the [cash] register, pushed the button, opened the drawer, and
stepped back.” Defendant reached across the counter, removed the money from the
register, and left the store. Stegall then proceeded to call the police.
IV. The One Stop Food Store Robbery
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Opinion of the Court
During the early morning hours of July 23, 2014, Quanisha Logan and
Theodore Davis were working as cashiers at the One Stop Food Store on the corner
of White and Fallston Roads. At approximately 2:00 a.m., Defendant entered the
store with his face and head covered and a black gun in his right hand. He told Logan
and Davis to “put all the money in the bag.” Both of them opened their registers and
handed Defendant the money inside. Defendant left the store with over $150.
***
Defendant was subsequently arrested and indicted on four counts of robbery
with a dangerous weapon. Beginning on 11 April 2016, a jury trial was held before
the Honorable Daniel A. Kuehnert in Cleveland County Superior Court. The State
presented testimony from Buehner, Stegall, Brock, Surratt, Logan, and Davis as well
as from several law enforcement officers who had investigated the robberies.
At the close of the State’s evidence, the following exchange occurred:
[DEFENDANT’S COUNSEL]: I’m not going to make
an argument. I would just make the standard motion to
dismiss at the end of State’s evidence.
....
THE COURT: You’re probably pushing it in this
direction in your questioning, Mr. Gilbert, and [sic] raised
a question in my mind. The fact that -- it sounded like the
evidence, at least on a few occasions, the defendant didn’t
point the gun directly at individuals, that he may not have
held a gun to somebody’s head and said, give me the money
or anything like that. There were statements that people
were threatened or felt threatened. Some of the law that --
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I decided to do a little bit of research while you were asking
those questions. The mere fact that the gun was shown and
was present and the circumstances of the situation -- as I
looked at the little bit of law, it looks like it meets the
threshold, to meet all the elements necessary for an armed
robbery. So I’m sort of anticipating that that might be an
issue and I just will let you know that had you emphasized
that or argued about it, and I knew you were headed in that
direction, that I have looked at and you probably knew this
before. . . . That’s probably the one weakness that you look
at say, [sic] where’s the threat?
[DEFENDANT’S COUNSEL]: My practice is not to
belabor an issue unless it needs to be belabored. And in this
case I can’t really argue with any passion that the case
ought to be dismissed. . . . I think there is a scintilla.
The trial court then denied Defendant’s motion to dismiss. The court
proceeded to instruct the jury solely on the offense of armed robbery. The jury
returned a verdict finding Defendant guilty with regard to the robberies at the
Kangaroo Express, Mike’s Food Store, and the Fastop. The jury found Defendant not
guilty as to the robbery at the One Stop Food Store.
The trial court sentenced Defendant to a term of 68 to 94 months imprisonment
for the Fastop robbery along with a consecutive term of 68 to 94 months for the Mike’s
Food Store robbery and a concurrent term of 68 to 94 months for the Kangaroo
Express robbery. Defendant gave oral notice of appeal.1
Analysis
1Defendant’s appeal relates solely to his convictions stemming from the robberies at the
Kangaroo Express and Mike’s Food Store.
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Opinion of the Court
On appeal, Defendant argues that (1) the trial court committed plain error in
failing to instruct the jury on the lesser-included offense of common law robbery; and
(2) he was deprived of effective assistance of counsel as a result of his trial counsel’s
failure to request an instruction on common law robbery and to move for dismissal of
the charge stemming from the Kangaroo Express robbery based specifically upon the
insufficiency of the evidence. We address each argument in turn.
I. Instruction on Common Law Robbery
In his first argument, Defendant contends that with regard to the Kangaroo
Express and Mike’s Food Store robberies, the State failed to establish that
Defendant’s use of a dangerous weapon actually threatened or endangered the life of
the victims. Because such evidence is essential to the offense of armed robbery,
Defendant argues, the lack of proof offered by the State on this issue required the
trial court to instruct the jury on the lesser-included offense of common law robbery.
Because Defendant failed to object to the trial court’s jury instructions, our
review of this issue is limited to plain error. See N.C. R. App. P. 10(a)(4) (“In criminal
cases, an issue that was not preserved by objection noted at trial and that is not
deemed preserved by rule or law without any such action nevertheless may be made
the basis of an issue presented on appeal when the judicial action questioned is
specifically and distinctly contended to amount to plain error.”).
For error to constitute plain error, a defendant must
demonstrate that a fundamental error occurred at trial. To
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show that an error was fundamental, a defendant must
establish prejudice—that, after examination of the entire
record, the error had a probable impact on the jury’s
finding that the defendant was guilty. Moreover, because
plain error is to be applied cautiously and only in the
exceptional case, the error will often be one that seriously
affects the fairness, integrity or public reputation of
judicial proceedings.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations,
quotation marks, and brackets omitted). Our Supreme Court has held that “even
when the ‘plain error’ rule is applied, it is the rare case in which an improper
instruction will justify reversal of a criminal conviction when no objection has been
made in the trial court.” State v. Odom, 307 N.C. 655, 660-61, 300 S.E.2d 375, 378
(1983) (citation, quotation marks, and brackets omitted).
It is well settled that a defendant is entitled to have
a lesser-included offense submitted to the jury only when
there is evidence to support it. The test in every case
involving the propriety of an instruction on a lesser grade
of an offense is not whether the jury could convict
defendant of the lesser crime, but whether the State’s
evidence is positive as to each element of the crime charged
and whether there is any conflicting evidence relating to
any of these elements.
State v. Covington, __ N.C. App. __, __, 788 S.E.2d 671, 675 (2016) (citation omitted).
Our prior caselaw makes clear that “[t]he trial court is not obligated to give a
lesser included instruction if there is no evidence giving rise to a reasonable inference
to dispute the State’s contention.” State v. Lucas, 234 N.C. App. 247, 256, 758 S.E.2d
672, 679 (2014) (citation, quotation marks, and ellipses omitted). “Where no lesser
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Opinion of the Court
included offense exists, a lesser included offense instruction detracts from, rather
than enhances, the rationality of the process.” State v. Leazer, 353 N.C. 234, 237, 539
S.E.2d 922, 924 (2000) (citation and quotation marks omitted).
“The elements of armed robbery are: (1) the 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.”2 State v. Hill, 365 N.C. 273, 275, 715 S.E.2d 841, 843
(2011) (citation and quotation marks omitted). The elements of common law robbery
are “the felonious, non-consensual taking of money or personal property from the
person or presence of another by means of violence or fear.” State v. Smith, 305 N.C.
691, 700, 292 S.E.2d 264, 270, cert. denied, 459 U.S. 1056, 74 L. Ed. 2d 622 (1982).
Defendant’s argument essentially has two components. First, he contends that
the State failed to present substantial evidence of the third element of armed robbery
— whether the victim’s life was endangered or threatened — with respect to either
the Kangaroo Express robbery or the Mike’s Food Store robbery because no evidence
was presented that Defendant actually pointed his gun at Buehner or Brock. Second,
he points to the lack of evidence during the Kangaroo Express robbery showing that
Buehner genuinely feared for her life in light of her testimony that she was “never
scared.” As discussed below, we reject both of these contentions.
2 Defendant makes no argument in this appeal that the gun he was holding during the
robberies was not, in fact, a real gun. Nor does he contend that the gun was inoperable or unloaded.
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Opinion of the Court
A. Pointing of the Gun
It is well established that a defendant’s mere possession of a weapon — without
more — during the course of a robbery is insufficient to support a finding that the
victim’s life was endangered or threatened. State v. Gibbons, 303 N.C. 484, 488, 279
S.E.2d 574, 577 (1981); see also State v. Whisenant, __ N.C. App. __, __, 791 S.E.2d
122, 125 (“The State must present evidence that the defendant endangered or
threatened the life of the victim by possession of the weapon, aside from the mere fact
of the weapon’s presence.” (citation, quotation marks, and brackets omitted)), disc.
review denied, __ N.C. __, 793 S.E.2d 702 (2016).
In the present case, Defendant argues that because the State did not present
evidence that Defendant actually pointed his gun at Buehner or Brock, this case falls
within the “mere possession” line of cases, thereby entitling him to an instruction on
common law robbery. However, the cases Defendant cites in support of this argument
all involved circumstances where a perpetrator possessed a weapon but neither the
victim nor bystanders actually saw the weapon during the course of the robbery. See,
e.g., Gibbons, 303 N.C. at 490, 279 S.E.2d at 578 (although perpetrators
acknowledged in their testimony that they possessed shotgun during robbery, no
evidence was presented that victim ever saw gun); State v. Evans, 279 N.C. 447, 455,
183 S.E.2d 540, 545-46 (1971) (victim’s life was not endangered or threatened where
co-conspirator left restaurant with shotgun that victim never saw and defendant
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Opinion of the Court
subsequently made threats to victim during time period when shotgun was not
present); State v. Dalton, 122 N.C. App. 666, 671, 471 S.E.2d 657, 661 (1996) (victim’s
purse was taken while she was asleep and thus “she could not have known of the
presence of the [defendant’s] knife and could not have been induced by it to part with
her purse”).
However, our appellate courts have held that in cases where the State’s
evidence establishes that a defendant held a dangerous weapon that was seen by the
victim or a witness during the course of the robbery, the third element of armed
robbery is satisfied. See, e.g., State v. Blair, 181 N.C. App. 236, 242, 638 S.E.2d 914,
919 (defendant endangered or threatened victim’s life where officer saw defendant
holding knife immediately after stealing wallet even though victim had not seen knife
prior to robbery), appeal dismissed and disc. review denied, 361 N.C. 570, 650 S.E.2d
815 (2007); State v. Melvin, 53 N.C. App. 421, 433, 281 S.E.2d 97, 105 (1981)
(defendant endangered or threatened victim’s life where he held gun during robbery
and demanded money), cert. denied, 305 N.C. 762, 292 S.E.2d 578 (1982).
We find particularly instructive our opinion in Melvin. In that case, the State
presented evidence that the defendant entered a store, told the victim that “he
wanted the money that [she] had in the store[,]” and placed a gun on the counter with
his hand over it. Id. at 433, 281 S.E.2d at 105. On appeal, the defendant argued that
the State’s evidence “did not reveal that at any time during the commission of the
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Opinion of the Court
robbery defendant ever actually threatened the victim with harm nor did the evidence
reveal that he endangered the victim by the use or threatened use of a firearm.” Id.
at 432, 281 S.E.2d at 104. However, this Court ruled that “[t]he evidence shows that
defendant robbed [the victim] while holding a pistol in his hand. We think this is
ample proof of this element of the crime.” Id. at 433, 281 S.E.2d at 105. Thus, we
held that “[t]here was sufficient evidence of each of the elements of armed robbery
and that defendant was the perpetrator of the armed robbery to justify the trial
court’s denial of his motion to dismiss.” Id.Here, as in Melvin, the uncontradicted evidence presented at trial showed that
Defendant held a gun in his hand while robbing both the Kangaroo Express and
Mike’s Food Store. Buehner testified that during the Kangaroo Express robbery, she
observed Defendant holding a gun in his right hand before he attempted to open the
cash register. Similarly, Surratt testified that Defendant entered Mike’s Food Store
with a gun in his hand. Defendant has failed to cite any case involving similar facts
in which North Carolina’s appellate courts have held either that the third element of
armed robbery was not satisfied or that the failure to give an accompanying
instruction on the lesser-included offense of common law robbery constituted error.
B. Victim’s Fear for Her Life
With regard to the Kangaroo Express robbery, Defendant contends that
because Buehner continued cleaning after he told her that he was robbing the store
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and testified that she was not scared during the incident, her life was not endangered
or threatened by Defendant’s possession of the gun. However, our Supreme Court
has previously rejected similar arguments.
In State v. Joyner, 295 N.C. 55, 243 S.E.2d 367 (1978), the defendant argued
on appeal that the trial court had erred by denying his motion for nonsuit on the
charge of armed robbery. He contended that the State failed to prove the victim’s life
was endangered or threatened because the victim did not show that she was “in fear
for her life at the time she surrendered her [property] . . . .” Id. at 62, 243 S.E.2d at
372. The Supreme Court rejected this contention, holding that “there was a
threatened use of a dangerous weapon which endangered or threatened the life of the
victim.” Id. at 63, 243 S.E.2d at 373 (emphasis omitted). In its opinion, the Court
made clear that “the State did not have to prove such fear to overcome defendant’s
motion for nonsuit.” Id.In Hill, the defendant was convicted of armed robbery where the evidence
established that he brandished a knife and caused the victim to sustain injury as a
result of his actions during the course of the robbery. The defendant argued on appeal
that the evidence failed to show that he endangered or threatened the victim’s life
because the victim’s testimony did “not indicate that he was afraid of or felt
threatened by the robber.” Hill, 365 N.C. at 279, 715 S.E.2d at 845. Our Supreme
Court held that the elements of armed robbery were satisfied and reiterated its prior
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Opinion of the Court
holding in Joyner that the third element of armed robbery does not depend on
“whether the victim was scared or in fear of his life.” Id. (citation, quotation marks,
and emphasis omitted). Thus, the Court concluded, the evidence was sufficient to
establish that the victim’s life was “endangered or threatened by the robber’s
possession, use or threatened use of a dangerous weapon, namely a knife.” Id.(citation and quotation marks omitted).
***
For these reasons, we are satisfied that the State presented uncontradicted
evidence establishing the elements of armed robbery for both the Kangaroo Express
and Mike’s Food Store robberies. Accordingly, Defendant has failed to show that the
trial court erred by not instructing the jury on common law robbery. See Covington,
__ N.C. App. at __, 788 S.E.2d at 677 (“[W]e hold that the trial court did not err at
all—much less commit plain error—by failing to instruct the jury on the lesser-
included offense . . . .”).
II. Ineffective Assistance of Counsel
Defendant’s final argument is that he received ineffective assistance of counsel
because of his trial counsel’s failure to (1) request an instruction on the lesser-
included offense of common law robbery with regard to the charges arising from the
Kangaroo Express and Mike’s Food Store robberies; and (2) make a specific motion to
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dismiss the charge of armed robbery as to the Kangaroo Express robbery. We
disagree.
In order to prevail on an ineffective assistance of
counsel claim, a defendant must show that (1) counsel’s
performance was deficient and (2) the deficient
performance prejudiced the defense. Deficient performance
may be established by showing that counsel’s
representation fell below an objective standard of
reasonableness. Generally, to establish prejudice, a
defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.
State v. Edgar, __ N.C. App. __, __, 777 S.E.2d 766, 770-71 (2015) (internal citations
and quotation marks omitted). “In considering ineffective assistance of counsel
claims, if a reviewing court can determine at the outset that there is no reasonable
probability that in the absence of counsel’s alleged errors the result of the proceeding
would have been different, then the court need not determine whether counsel’s
performance was actually deficient.” State v. Turner, 237 N.C. App. 388, 396, 765
S.E.2d 77, 84 (2014) (citation and brackets omitted), disc. review denied, 368 N.C.
245, 768 S.E.2d 563 (2015).
Here, as shown above, Defendant was not entitled to a jury instruction on
common law robbery as to either of these two charges because the State presented
uncontradicted evidence of each element of the offense of armed robbery. Thus, it
would have been futile for his trial counsel to request such an instruction or to move
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for the dismissal of the armed robbery charge relating to the Kangaroo Express
robbery on a theory of insufficiency of the evidence. Accordingly, Defendant cannot
establish a valid ineffective assistance of counsel claim. See Covington, __ N.C. App.
at __, 788 S.E.2d at 678 (holding that defendant was not deprived of effective
assistance of counsel based on his attorney’s failure to request jury instruction on
lesser-included offense).
Conclusion
For the reasons stated above, we conclude that Defendant received a fair trial
free from error.
NO ERROR.
Chief Judge McGEE and Judge McCULLOUGH concur.
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