State v. Clevinger , 249 N.C. App. 383 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1292
Filed: 6 September 2016
Forsyth County, No. 13 CRS 057326
STATE OF NORTH CAROLINA
v.
DOMINIC IAN CLEVINGER, Defendant.
Appeal by defendant from judgment entered 4 November 2014 by Judge Susan
E. Bray in Forsyth County Superior Court. Heard in the Court of Appeals 25 May
2016.
Attorney General Roy Cooper, by Special Deputy Attorney General Ann W.
Matthews, for the State.
Jarvis John Edgerton, IV for defendant.
ELMORE, Judge.
A jury found Dominic Clevinger (defendant) guilty of robbery with a dangerous
weapon. On appeal, defendant contends that the trial court erred in admitting
prejudicial statements by a detective during defendant’s interrogation, and in failing
to instruct the jury on the elements of common law robbery. We conclude that
defendant received a trial free from prejudicial error.
I. Background
STATE V. CLEVINGER
Opinion of the Court
The State’s evidence at trial tended to show the following: On 11 June 2013,
Crystal Lynn McDade was working as the manager and cashier at the Stanleyville
Business Center (SBC). The SBC was an Internet sweepstakes café where customers
could purchase Internet time to play games and win cash prizes. McDade had
brought her fifteen-year-old daughter, Alyssia Hicks, to work with her that morning.
Around 9:00 a.m., McDade observed a man walk into the SBC to use the
restroom and leave a few seconds later. She thought it was unusual because “he did
not purchase anything” and “did not speak to anyone . . . . We don’t usually have
people [ ] walk off the street to use the restroom.” Around 10:30 a.m., the same man
returned to the SBC and approached McDade at the cashier’s station. He handed her
a twenty-dollar bill and began patting himself down, searching for his driver’s license.
He told McDade that he could not find his license and left to look for it in his car.
The man returned a few seconds later and dropped a plastic Dollar General
bag on the counter in front of McDade. He grabbed Hicks, jerked her head back, and
held a knife to her exposed neck, telling McDade to “put the money in the bag or he
was going to slit [Hicks’] throat.” At trial, Hicks described the knife as “cold and
hard.” McDade testified that she saw the knife but could not recall how big it was.
McDade opened the register and started pulling out money. Before she could put it
into the bag, the man snatched the money and fled the store. Hicks was left with a
red mark on her throat where the knife was held, but she was not bleeding.
-2-
STATE V. CLEVINGER
Opinion of the Court
Officers responded to the scene and took a statement from McDade. She
described the suspect as a white male with reddish-brown hair, a slender build, and
freckles on his arms and face. He was wearing a red polo-style shirt and long plaid
shorts. Sergeant Gomez, one of the responding officers, located a red shirt on the side
of the road in a gravel area near the SBC. It was preserved for evidence and sent to
the state crime lab for testing, where Agent Hannan obtained DNA samples from the
shirt. A few days after the robbery, McDade identified defendant in a photographic
line-up as the robbery suspect.
McDade provided Detective Watkins with a series of videos captured that
morning on the SBC’s surveillance cameras. As he watched the videos, Detective
Watkins noticed that, in addition to McDade’s description, the male suspect was
wearing “a low cut shoe” and “had what appeared to be the end of a belt hanging down
the right side of his body that is kind of flapping against his leg as he walked.” He
also noticed that before the male suspect entered the SBC, a woman wearing a
bandana, a t-shirt with writing across the top and a design in the center, and red
Capri pants walked into the SBC to use the restroom and leave. Video surveillance
taken earlier that morning from a nearby Target showed the same woman leaving
the store with a man who matched the physical description of the male robbery
suspect.
-3-
STATE V. CLEVINGER
Opinion of the Court
After learning from McDade that the male suspect had used what appeared to
be a new Dollar General bag during the robbery, Detectives Watkins and Olivo went
to a nearby Dollar General to follow up on the lead. When they entered the store,
they noticed a woman in a bright green tank-top checking out at the cash register.
She caught their attention because of the bright color of her shirt, her tattoos, and
her noticeable hairstyle.
The detectives made contact with the assistant manager of the Dollar General
to review the surveillance footage taken earlier that day—approximately one hour
before the robbery. The video showed the same woman in the bright green tank-top
purchasing a three-piece set of chef’s knives and a DVD at 9:09 a.m. One minute
later, a white male walked into the store, stood next to her at the cash register, picked
up the DVD to look at it, and then set it back down. He was wearing a red polo shirt,
long plaid shorts, a belt hanging down the right side of his leg, and otherwise matched
the physical description of the robbery suspect.
After reviewing the surveillance footage, detectives returned to the front of the
store looking for the woman in the green tank-top. The Dollar General cashier,
Tiffany Perdue, informed the detectives that the woman had left, but she had spoken
to Perdue about tattoos while she was in the store and had given Perdue her
telephone number. A reverse search of the number revealed that it belonged to
defendant’s cousin, Krystal Clevinger. Detective Olivo secured an address for Ms.
-4-
STATE V. CLEVINGER
Opinion of the Court
Clevinger and her photo. He recognized her as the woman in the green tank-top he
had seen at Dollar General and on the surveillance video.
The detectives went to Ms. Clevinger’s home to ask about her purchase earlier
that day at Dollar General. She produced a three-piece set of chef’s knives, one of
which was missing from the opened package. At that point, Ms. Clevinger agreed to
go with the detectives to the public safety center for an interview. She also consented
to a search of her vehicle, where the detectives found the DVD she had purchased at
Dollar General. The knife set and the DVD packaging were submitted for latent
fingerprint examination.
At trial, the State called Cindy Persinger as a witness, with whom defendant
and his girlfriend had lived several years ago. Persinger recalled that on 10 June
2013, the day before the robbery, defendant came to her house accompanied by an
older woman. Persinger testified that the woman was wearing a bandana, a white t-
shirt, and red Capri pants, and that defendant was wearing a black shirt, plaid
shorts, black hat, and was carrying a red shirt over his shoulder. Defendant told
Persinger that he was in town from Florida for a “quick visit,” and was waiting for
his cousin, Ms. Clevinger, to pick him up. Defendant and the woman waited for about
three hours until they decided to walk. He called Persinger shortly after leaving her
house to tell her that Ms. Clevinger had picked him up as he was walking down the
road. When Detective Watkins interviewed Persinger and showed her still images of
-5-
STATE V. CLEVINGER
Opinion of the Court
the male and female suspects in the Target video, she identified them as defendant
and the woman who had been at her house.
Defendant was arrested in Florida in October 2013 on an unrelated charge,
and extradited to North Carolina on 15 December 2013. Detectives obtained a saliva
sample from defendant, which was sent to the state crime lab for testing. A
comparison of the DNA results from the red polo shirt found near the SBC matched
the predominant profile of defendant’s DNA. In addition, defendant’s fingerprints
were identifiable on both the DVD and the set of chef’s knives purchased from Dollar
General on the same day as the robbery.
During a video-taped interrogation, defendant repeatedly denied any
involvement in the robbery. He filed a motion in limine to redact portions of the
interrogation video in which Detective Watkins: (1) expressed his opinion that all of
the evidence “points to [defendant]”; (2) referenced alleged statements by Ms.
Clevinger that defendant had a drug problem; (3) asserted that the “same exact
person” seen in the SBC surveillance video is seen with Ms. Clevinger in surveillance
footage from other stores; (4) opined that it was defendant on the SBC video and
stated that he had “seen the video himself”; (5) referenced alleged statements by Ms.
Clevinger that defendant was with her at the other stores; (6) referenced alleged
statements by Ms. Clevinger that defendant looked thinner than usual because of his
drug use; (7) referenced an alleged statement by Ms. Clevinger that defendant took
-6-
STATE V. CLEVINGER
Opinion of the Court
one of the knives she bought at Dollar General; (8) referenced defendant’s prior
arrest; (9) told defendant he had phone records and proof that defendant and Ms.
Clevinger changed their phone numbers after the robbery; (10) alleged that defendant
“called the shit out of [Ms. Clevinger]” while she was being interviewed by law
enforcement; and (11) told defendant that he was “one cold dude.”
In response to defendant’s motion, the State argued that it was not offering the
statements for their truth, but to provide “context to defendant’s responses” and “to
explain how a detective conducts an interview and interview techniques.” Over
defendant’s objections, the trial court admitted the challenged portions of the video
with the following limiting instruction:
THE COURT: Members of the jury, in the exhibit that you
are about to see, Detective Watkins and Olivo interviewed
the defendant, Mr. Clevinger, after he had been arrested.
During the course of the interview it may be that one of the
detectives expresses his opinion that the defendant,
Dominic Clevinger, is the person shown in one or more of
the surveillance videos.
You are not to consider this opinion evidence for the truth
of whether Mr. Clevinger is pictured in the videos. It is
your duty to determine whether the defendant is depicted
in any of the surveillance videos. You may consider any
such statement or opinion only for the impact that opinion
or statement may have had on the defendant as an
interviewing technique by the detectives.
Officers are permitted to employ investigative and
questioning techniques designed to elicit information.
During the course of the interview it may be that the
detective accuses the defendant of being untruthful or lying
-7-
STATE V. CLEVINGER
Opinion of the Court
to him. You can consider the detective’s remarks not for
the truth of what the detective is alleging but as an
investigative technique designed to elicit information from
a suspect.
Similarly, if the detective makes any statements to the
defendant about what other people told him or about any
alleged evidence against the defendant or what that
alleged evidence is, you can consider such statements in
the context of interrogation techniques used by law
enforcement officers to secure confessions. You are not to
consider the statements the detective attributes to others
as being made for the truth of those statements because
they were not made under oath and admitted at this trial.
The trial court repeated the instruction at the close of the evidence, at which point it
also instructed the jury on the elements of robbery with a dangerous weapon. The
court declined the State’s request to declare the knife a dangerous weapon as a matter
of law, leaving the question for the jury, and denied defendant’s request for an
instruction on the lesser-included offense of common law robbery.
The jury found defendant guilty of robbery with a dangerous weapon, and he
pled guilty to an aggravating factor of willful violation of probation or parole. The
trial court entered a judgment and commitment in the aggravated range, sentencing
defendant to an active term of 140 to 180 months of imprisonment. Defendant gave
notice of appeal in open court.
II. Discussion
A. Hearsay and Relevance
-8-
STATE V. CLEVINGER
Opinion of the Court
First, defendant argues that the trial court erred in admitting the challenged
portions of the video-taped interrogation. Defendant contends that no portion of the
interview was relevant, and that the State’s reasons for admitting the video—to show
the detective’s interrogation techniques and provide context for defendant’s
responses—were a pretext to put before the jury what was otherwise inadmissible
hearsay and improper lay opinion testimony.
“Preserved legal error is reviewed under the harmless error standard of
review.” State v. Lawrence, 365 N.C. 506, 512, 723 S.E.2d 326, 330 (2012) (citing N.C.
Gen. Stat. § 15A-1443 (2009); N.C. R. App. P. 10(a)(1); State v. Bishop, 346 N.C. 365,
385, 488 S.E.2d 769, 779 (1997)). Where, as here, “the error relates to a right not
arising under the United States Constitution, North Carolina harmless error review
requires the defendant to bear the burden of showing prejudice.” Id. at 513, 723
S.E.2d at 331 (citing N.C. Gen. Stat. § 15A-1443(a)). “In such cases the defendant
must show ‘a reasonable possibility that, had the error in question not been
committed, a different result would have been reached at the trial out of which the
appeal arises.’ ” Id. (quoting N.C. Gen. Stat. § 15A-1443(a)).
“Hearsay” is a an out-of-court statement “offered in evidence to prove the truth
of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 801 (2015). “Hearsay is not
admissible except as provided by statute or by [the rules of evidence].” N.C. Gen.
Stat. § 8C-1, Rule 802 (2015). Where an out-of-court statement is offered for a
-9-
STATE V. CLEVINGER
Opinion of the Court
purpose other than to prove the truth of the matter asserted, it is not hearsay because
it does not fit the legal definition. State v. Call, 349 N.C. 382, 409, 508 S.E.2d 496,
513 (1998); Long v. Asphalt Paving Co. of Greensboro, 47 N.C. App. 564, 569, 268
S.E.2d 1, 4–5 (1980). To be admissible, however, the statement must still be relevant
to the nonhearsay purpose for which it was offered. See N.C. Gen. Stat. § 8C-1, Rule
402 (2015) (“Evidence which is not relevant is not admissible.”).
“Relevant evidence” is “evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule
401 (2015). “In order to be relevant, . . . evidence need not bear directly on the
question in issue if it is helpful to understand the conduct of the parties, their
motives, or if it reasonably allows the jury to draw an inference as to a disputed fact.”
State v. Roper, 328 N.C. 337, 356, 402 S.E.2d 600, 611 (1991) (citing State v. Potter,
295 N.C. 126, 132, 244 S.E.2d 397, 401–02 (1978)). While “a trial court’s rulings on
relevancy technically are not discretionary and therefore are not reviewed under the
abuse of discretion standard applicable to Rule 403, such rulings are given great
deference on appeal.” State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228
(1991) (citation omitted), appeal dismissed and disc. review denied, 331 N.C. 290, 416
S.E.2d 398, cert. denied, 506 U.S. 915, 121 L. Ed. 2d 241 (1992).
- 10 -
STATE V. CLEVINGER
Opinion of the Court
This Court has previously addressed the admissibility of statements made by
law enforcement during video-taped interrogations. In State v. Miller, 197 N.C. App.
78, 676 S.E.2d 546 (2009), the defendant argued that “statements attributed to non-
testifying third parties, which were contained in the detectives’ questions, should
have been redacted before the [interrogation] was presented to the jury.” Id. at 85,
676 S.E.2d at 551. We held that the detectives’ questions were relevant to give
context to concessions made by the defendant during the interrogation, and to explain
the defendant’s subsequent conduct in changing his story when confronted with
purported statements of others through the detectives’ questions. Id. at 87, 676
S.E.2d at 552.
Similarly, in State v. Castaneda, 215 N.C. App. 144, 715 S.E.2d 290 (2011), the
defendant moved to redact portions of a transcript from an interrogation in which the
detectives referred to statements from “other witnesses” about events surrounding a
homicide, “as well as portions in which the detectives told [the] defendant that his
version of events was a ‘lie.’ ” Id. at 146, 715 S.E.2d at 292. During his post-arrest
interview, the defendant’s story shifted significantly in response to a detective’s
allegations that the defendant was not being truthful. Id. at 150, 715 S.E.2d at 295.
We held that the statements were admissible to show the effect that they had on the
defendant. Id. More specifically, as “part of an interrogation technique designed to
show [the] defendant that the detectives were aware of the holes and discrepancies
- 11 -
STATE V. CLEVINGER
Opinion of the Court
in his story,” the detectives’ statements were relevant because they yielded
inculpatory responses from the defendant which were “relevant to the murder
charge.” Id. at 150–51, 715 S.E.2d at 295; see also id. at 151, 715 S.E.2d at 295 (“[A]n
interrogator’s comments that he or she believes the suspect is lying are only
admissible to the extent that they provide context to a relevant answer by the
suspect.” (quoting State v. Cordova, 137 Idaho 635, 641, 51 P.3d 449, 455 (Idaho Ct.
App. 2002))).
Finally, in State v. Garcia, 228 N.C. App. 89, 743 S.E.2d 74 (2013), disc. review
denied, 367 N.C. 326, 755 S.E.2d 619 (2014), the defendant initially denied any
knowledge of a homicide during an interview with police. Id. at 98, 743 S.E.2d at 80.
At trial, however, he admitted to killing the victim but claimed he did so in self-
defense. Id. at 99, 743 S.E.2d at 80. We held that the challenged statements made
by the detectives during the interrogation were admissible because the “[d]efendant’s
credibility was a key issue for the jury to decide,” and his willingness “to repeatedly
lie, in spite of [the detective’s] pressuring interrogation techniques, was highly
probative of [the] defendant’s credibility.” Id.
Consistent with its position at trial, the State maintains that Detective
Watkins’ statements were “relevant and admissible, not for the truth of the matter
asserted, but to show the interrogation techniques of the detectives and to provide
context for defendant’s responses.” Its reliance on the above-cited cases, however, is
- 12 -
STATE V. CLEVINGER
Opinion of the Court
misplaced. First, unlike Miller, the evidence was not relevant for the purpose of
placing defendant’s answers in “context” because defendant made no concessions
during the interrogation. Instead, he repeatedly denied any involvement in the
robbery, and we cannot agree with the State that defendant’s denials were
incriminating and, therefore, relevant and admissible. Second, unlike Castaneda, the
evidence was not relevant for the purpose of showing the detective’s interrogation
techniques because defendant’s responses never changed—much less due to any
method used by the detective. And a demonstration of even the most impressive
interrogation tactics, standing alone, would not have “made facts of consequence to
this case more probable or less probable than they would be otherwise.” Miller, 197
N.C. App. at 87, 676 S.E.2d at 552. Finally, although we declined to limit Miller as
allowing an interrogator’s statements to be admitted into evidence “only if they
caused the defendant to concede the truth or change his story,” Garcia, 228 N.C. App.
at 98, 743 S.E.2d at 80, here, unlike Garcia, the evidence was not relevant for the
purpose of impeaching defendant’s credibility because he did not testify at trial.
While we agree with defendant that the statements were not relevant to the
nonhearsay purposes for which they were offered, he has failed to show prejudice to
warrant a new trial. We presume that the jury follows the trial court’s instructions,
State v. Gregory, 340 N.C. 365, 408, 459 S.E.2d 638, 663 (1995) (citation omitted), and
in this case, the court instructed the jury twice that it was not to consider the
- 13 -
STATE V. CLEVINGER
Opinion of the Court
detective’s statements for their truth. Moreover, this was not a situation where the
State relied on the detective’s statements to develop its central theory or build its
case against defendant. Cf. State v. Canady, 355 N.C. 242, 249, 559 S.E.2d 762, 766
(2002) (holding that officer’s testimony received to explain his subsequent actions was
inadmissible hearsay where it went “so far beyond the confines of the instruction”
and the State relied on it “as substantive evidence of the details of the murders and
to imply defendant had given a detailed confession of his alleged crimes”). In fact,
based on the overwhelming evidence against defendant, there appears to have been
no need for the State to publish the video to the jury. Surveillance footage captured
a male suspect matching defendant’s description leaving Target, standing with Ms.
Clevinger at Dollar General as she purchased the knife set, and subsequently
entering the SBC. Persinger identified the male suspect as defendant, whom she had
seen the day before the robbery, and McDade identified defendant as the perpetrator
in a photographic line-up. In addition, the DNA results from the red polo shirt found
near the SBC matched defendant’s DNA profile. Defendant’s fingerprints were also
found on both the DVD and the chef’s knife set purchased from the Dollar General
store. In light of this evidence, we are not convinced there is a reasonable possibility
that without the video, the jury would have reached a different result. Any error in
the admission of the challenged evidence was harmless.
B. Jury Instructions
- 14 -
STATE V. CLEVINGER
Opinion of the Court
Defendant also argues that the trial court erred in failing to submit his
requested instruction for common law robbery. Because the court left it to the jury
to determine if the alleged weapon was a dangerous weapon, defendant contends, it
was also required to submit the lesser-included instruction to the jury.
We review de novo the trial court’s decision regarding its jury instructions.
State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009) (citations omitted).
The trial court must “instruct the jury on all substantial features of a case raised by
the evidence.” State v. Shaw, 322 N.C. 797, 803, 370 S.E.2d 546, 549 (1988). “Failure
to instruct upon all substantive or material features of the crime charged is error.”
State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748 (1989). On the other hand, “a
trial judge should not give instructions to the jury which are not supported by the
evidence produced at the trial.” State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186,
191 (1973), cert. denied, 418 U.S. 905, 41 L. Ed. 2d 1153 (1974).
“An instruction on a lesser-included offense must be given only if the evidence
would permit the jury rationally to find defendant guilty of the lesser offense and to
acquit him of the greater.” State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771
(2002); see also State v. Bailey, 278 N.C. 80, 86, 178 S.E.2d 809, 812 (1971) (“When
there is evidence of defendant’s guilt of common law robbery, it is error for the court
to fail to submit the lesser offense to the jury.” (citations omitted)). If, however, “the
State’s evidence is clear and positive with respect to each element of the offense
- 15 -
STATE V. CLEVINGER
Opinion of the Court
charged and there is no evidence showing the commission of a lesser included offense,
it is not error for the trial judge to refuse to instruct on the lesser offense.” State v.
Hardy, 299 N.C. 445, 456, 263 S.E.2d 711, 718–19 (1980) (citing State v. Alston, 293
N.C. 553, 238 S.E.2d 505 (1977)).
Robbery with a dangerous weapon consists of the following elements: (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. N.C. Gen.
Stat. § 14-87(a) (2015). Common law robbery is a lesser-included offense of robbery
with a dangerous weapon. State v. Frazier, 150 N.C. App. 416, 418–19, 562 S.E.2d
910, 913 (2002). The difference between the two offenses is that robbery with a
dangerous weapon is “accomplished by the use or threatened use of a dangerous
weapon whereby the life of a person is endangered or threatened.” Id. (quoting State
v. Peacock, 313 N.C. 554, 562, 330 S.E.2d 190, 195 (1985)).
“A 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) (citations omitted). Relevant here, “the evidence
in each case determines whether a certain kind of knife is properly characterized as
a lethal device as a matter of law or whether its nature and manner of use merely
raises a factual issue about its potential for producing death.” Id. at 301, 283 S.E.2d
- 16 -
STATE V. CLEVINGER
Opinion of the Court
at 726 (citations omitted). “The dangerous or deadly character of a weapon with
which [the] accused was armed in committing a robbery may be established by
circumstantial evidence.” State v. Rowland, 263 N.C. 353, 357, 139 S.E.2d 661, 664
(1965) (citation and internal quotation marks omitted).
In support of his argument, defendant relies on State v. Jackson, 85 N.C. App.
531, 355 S.E.2d 224 (1987), and State v. Brandon, 120 N.C. App. 815, 463 S.E.2d 798
(1995), for the proposition that where the trial court submits to the jury the question
of whether a dangerous weapon was used to commit a robbery, it must also submit
an instruction for common law robbery. That may be the rule when there is evidence
of common law robbery, but as our Supreme Court has held repeatedly, an instruction
for the lesser-included offense is not required when there is no evidence to support it:
The necessity for instructing the jury as to an included
crime of lesser degree than that charged arises when and
only when there is evidence from which the jury could find
that such included crime of lesser degree was committed.
The presence of such evidence is the determinative factor.
Hence, there is no such necessity if the State’s evidence
tends to show a completed robbery and there is no
conflicting evidence relating to elements of the crime
charged. Mere contention that the jury might accept the
State’s evidence in part and might reject it in part will not
suffice.
State v. Hicks, 241 N.C. 156, 159–60, 84 S.E.2d 545, 547 (1954); see Peacock, 313 N.C.
at 564, 330 S.E.2d at 196 (holding that common law robbery instruction was not
required where “all of the State’s uncontradicted evidence, if believed, tend[ed] to
- 17 -
STATE V. CLEVINGER
Opinion of the Court
compel the conclusion that the vase as wielded by defendant, ‘endangered or
threatened’ the victim’s life” and “[t]here was no evidence to support an instruction
on a lesser included offense”); State v. Porter, 303 N.C. 680, 686, 281 S.E.2d 377, 382
(1981) (“As a general rule, when there is evidence of defendant’s guilt of a crime which
is a lesser included offense of the crime stated in the bill of indictment, the defendant
is entitled to have the trial judge submit an instruction on the lesser included offense
to the jury.” (citations omitted)); State v. Lee, 282 N.C. 566, 569, 193 S.E.2d 705, 707
(1973) (“In a prosecution for armed robbery the court is not required to submit the
lesser included offense of common law robbery unless there is evidence of defendant’s
guilt of that crime.”); State v. Richardson, 279 N.C. 621, 627, 185 S.E.2d 102, 107
(1971) (rejecting defendant’s argument that an instruction on common law robbery
was required because “[t]here was no evidence that would warrant or support a
finding that defendant was guilty of a lesser included offense”); State v. Wenrich, 251
N.C. 460, 460, 111 S.E.2d 582, 583 (1959) (“[T]he court should not submit to the jury
an included lesser crime where there is no testimony tending to show that such lesser
offense was committed.”), overruled on other grounds by State v. Hurst, 320 N.C. 589,
359 S.E.2d 776 (1987), overruled by State v. White, 322 N.C. 506, 369 S.E.2d 813
(1988); see also State v. Rowland, 89 N.C. App. 372, 377, 366 S.E.2d 550, 553 (“[T]here
is no requirement to submit the lesser included offense to the jury when there is no
- 18 -
STATE V. CLEVINGER
Opinion of the Court
evidence to sustain a verdict of defendant’s guilt of such lesser offense.” (citations
omitted)), disc. review improvidently allowed, 323 N.C. 619, 374 S.E.2d 116 (1988).
In this case, the circumstantial yet uncontroverted evidence shows that the
knife was the same one missing from a new three-piece set of chef’s knives purchased
hours before the robbery. It also shows that during the robbery, the man identified
as defendant grabbed McDade’s fifteen-year-old daughter, pulled her head back, and
held the knife against her neck as he threatened to slit her throat. The State’s
evidence was clear and positive as to the dangerous weapon element, and there was
no evidence from which a rational juror could find that the knife, based on its nature
and the manner in which it was used, was anything other than a dangerous weapon.
Nor was there any evidence that a knife was not used during the robbery, that
the knife used was different than the one from the knife set, or that the knife was
used in a non-threatening manner. If the jury believed the State’s evidence—that
defendant robbed the SBC with the missing chef’s knife—then it was required to find
him guilty of robbery with a dangerous weapon. But if the jury was not convinced
that defendant was the robber, then it was required to acquit him altogether. See
State v. Black, 286 N.C. 191, 196, 209 S.E.2d 458, 462 (1974). On the facts of this
case, therefore, defendant was not entitled to a lesser-included instruction for
common law robbery: he was either guilty of robbing the SBC by the threatened use
- 19 -
STATE V. CLEVINGER
Opinion of the Court
of the chef’s knife, or he was not guilty at all. See State v. Fletcher, 264 N.C. 482, 485,
141 S.E.2d 873, 875 (1965); Rowland, 89 N.C. App. at 379, 366 S.E.2d at 554.
III. Conclusion
Defendant received a trial free from prejudicial error. While we agree that the
challenged portions of the interrogation video were not relevant to the nonhearsay
purposes for which they were offered, any error in their admission was harmless in
light of the trial court’s limiting instructions and the overwhelming evidence of
defendant’s guilt. In addition, the trial court did not err in denying defendant’s
request for an instruction on the lesser-included offense of common law robbery
because there was no evidence to support it.
NO PREJUDICIAL ERROR; NO ERROR.
Judges DAVIS and DIETZ concur.
- 20 -