State v. Redmond , 266 N.C. App. 580 ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-801
Filed: 6 August 2019
Lenoir County, No. 15 CRS 50472
STATE OF NORTH CAROLINA
v.
MORQUEL DESHAWN REDMOND
Appeal by defendant from judgment entered 11 December 2017 by Judge
Charles H. Henry in Superior Court, Lenoir County. Heard in the Court of Appeals
28 February 2019.
Attorney General Joshua H. Stein, by Special Deputy Attorney General
Kimberly D. Potter, for the State.
Cooley Law Office, by Craig M. Cooley, for defendant-appellant.
STROUD, Judge.
Morquel Redmond appeals his conviction of robbery with a dangerous weapon.
Defendant argues that the trial court erred by failing to instruct the jury on the lesser
included offense of common law robbery. Because the trial court could have found
the box cutter to be a dangerous weapon as a matter of law, despite submitting this
issue to the jury, Defendant was not entitled to a jury instruction on the lesser
included offense of common law robbery. Defendant’s trial was free of prejudicial
error.
I. Background
STATE V. REDMOND
Opinion of the Court
The State’s evidence tended to show that on 20 March 2015, Defendant robbed
a Tobacco Road Outlet in Kinston. Linda Walston was working in the store at the
time of the robbery. Defendant and Ms. Walston struggled until Defendant
brandished a box cutter and threatened her. Defendant then dragged Ms. Walston
to the back room of the store and tied her up with a cord. Defendant took cash out of
the register and fled, leaving Ms. Walston tied up.
Law enforcement officers identified Defendant from video surveillance images
from the store, with the help of Defendant’s mother. Defendant was taken into
custody, and officers searched his vehicle and found two box cutters. Defendant was
indicted for robbery with a dangerous weapon and first degree kidnapping. At trial,
after a Harbison inquiry, Defendant admitted that he committed the offenses of
common law robbery and second-degree kidnapping. Ms. Walston testified about the
events of 20 March 2015, and the State introduced video surveillance from the store
during the robbery. Defendant did not present any evidence. During the charge
conference, Defendant’s counsel requested an instruction on common law robbery
which was denied by the trial court. Defendant was found guilty of robbery with a
dangerous weapon and first-degree kidnapping and sentenced within the
presumptive range. Defendant timely appealed and only challenges his robbery with
a dangerous weapon conviction.
II. Standard of Review
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STATE V. REDMOND
Opinion of the Court
Defendant argues that “the trial court erred when it refused to issue a
lesser-include[d] offense instruction for common law robbery.” The State contends
that “Defendant is not entitled to an instruction on the lesser included offense
because the evidence does not show that a rational jury would find him guilty of
common law robbery given the extensive testimony [presented at Defendant’s trial].”
We review de novo the trial court’s decision
regarding its jury instructions. The trial court must
“instruct the jury on all substantial features of a case
raised by the evidence.” “Failure to instruct upon all
substantive or material features of the crime charged is
error.” 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.”
“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.” If, however, “the State’s evidence is
clear and positive with respect to each element of the
offense 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. Clevinger, ___ N.C. App. ___, ___, 791 S.E.2d 248, 255 (2016) (citations
omitted).
Because Defendant requested a jury instruction on common law robbery, we
review the instructions de novo.
III. Lesser Included Offense
A defendant is “entitled to an instruction on a lesser included offense if the
evidence would permit a jury rationally to find him guilty of the lesser offense and
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STATE V. REDMOND
Opinion of the Court
acquit him of the greater.” State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924
(2000). Only one element distinguishes common law robbery and robbery with a
dangerous weapon, and that element is the use of a dangerous weapon:
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. Common law
robbery is a lesser-included offense of robbery with a
dangerous weapon. 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.
A deadly weapon is generally defined as any article,
instrument or substance which is likely to produce death
or great bodily harm. 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. The
dangerous or deadly character of a weapon with which the
accused was armed in committing a robbery may be
established by circumstantial evidence.
Clevinger, ___ N.C. App. at ___, 791 S.E.2d at 255 (citations, quotation marks, and
brackets omitted).
Defendant raises three arguments in his brief: “(1) the State never presented
the box cutter, (2) Walston did not suffer any injuries from the box cutter, and (3) the
trial court did not find the box cutter to be a deadly weapon as a matter of law[.]” The
State’s failure to present the box cutter as evidence, and the absence of injuries are
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STATE V. REDMOND
Opinion of the Court
facts the jury could consider in its determination of whether the box cutter was used
as a “dangerous weapon,” but neither are required for a weapon to be a “dangerous
weapon” under the law. See id. The weight to give to the evidence is for the jury to
determine. See State v. Collins, 30 N.C. 407, 412-13 (1848) (“Whether the instrument
used was such as is described by the witnesses, where it is not produced, or, if,
produced, whether it was the one used, are questions of fact[.]”).
Next, physical injuries are not required for a dangerous weapon to be
considered dangerous. See State v. Young, 317 N.C. 396, 417, 346 S.E.2d 626, 638
(1986) (“In order to be characterized as a ‘dangerous or deadly weapon,’ an
instrumentality need not have actually inflicted serious injury. A dangerous or
deadly weapon is ‘any article, instrument or substance which is likely to produce
death or great bodily injury.’”).
The main issue here is whether the trial court was required to give the lesser
included offense instruction on common law robbery where the judge did not instruct
the jury that the box cutter was a deadly weapon as a matter of law but instead
submitted this factual issue to the jury. Almost anything can be a dangerous weapon,
depending upon the manner of use in a particular case:
But where it may or may not be likely to produce such
results, according to the manner of its use, or the part of
the body at which the blow is aimed, its alleged deadly
character is one of fact to be determined by the jury. ‘Where
the deadly character of the weapon is to be determined by
the relative size and condition of the parties and the
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STATE V. REDMOND
Opinion of the Court
manner in which it is used,’ the question is for the jury. ‘If
its character as being deadly or not, depended upon the
facts and circumstances, it became a question for the jury
with proper instructions from the court.’
State v. Perry, 226 N.C. 530, 535, 39 S.E.2d 460, 464 (1946) (citations omitted).
Defendant is correct that the trial court did not find the box cutter to be a
deadly weapon as a matter of law, but this does not end the inquiry. Our Court has
held that if the trial court could have determined the weapon to be a deadly weapon
as a matter of law based upon the evidence, but instead submitted that issue to the
jury, its failure to give an instruction on the lesser-included offense is not prejudicial
error. Clevinger, ___ N.C. App. at ___, 791 S.E.2d at 256. This Court has rejected
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.
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STATE V. REDMOND
Opinion of the Court
Id. at ___, 791 S.E.2d at 255-56 (quoting State v. Hicks, 241 N.C. 156, 159-60, 84
S.E.2d 545, 547 (1954)).
We therefore turn to the evidence presented at trial to determine if there any
“conflicting evidence relating to the elements of the crime charged.” Id. at ___, 791
S.E.2d at 256. At trial, Ms. Walston’s testimony about the incident included a
description of the box cutter:
Q. At around the ten o’clock hour did an individual
wearing a red hoodie come into your store?
A. Yes.
Q. Can you tell us what happened when he came into
the store?
A. He asked -- he was looking his uncle something for
his birthday. He was asking about some cigars behind the
counter and I was price checking them and giving him
some prices and he said he needed to leave and go get some
money. He’d be back in a little bit and he left.
He came back. When he came back, he asked me
about the premium cigars that was in the little humidor in
the back, he said are they expensive. I said there’s some
pretty expensive ones in there. He said, well, just grab me
two of the most expensive ones you’ve got. I’ll just get him
those.
So, I walked into the room and grabbed two cigars.
As I come out the door, I handed him the two cigars and
started around the end of the counter to go back to the cash
register. When I did, he throwed me up against the
chewing tobacco and started fighting me and, of course, I
started fighting back.
We proceeded to fight. I fell on the floor. He started
choking me. He ripped the buttons off my shirt. Then he
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STATE V. REDMOND
Opinion of the Court
somehow managed to get the box cutter. I don’t know if he
had it because after it was all done and everything I had
cuts on the ends of my boots, which I didn’t see it until he
actually put it in my face and said that he was going to kill
me if I didn’t cooperate.
Q. What did he put it in your face?
A. Right to my face.
Q. What was the item that he put --
A. A box cutter.
Q. And can you describe the box cutter?
A. A box cutter. That’s all I know. I know what a box
cutter looks like. I mean, it was a box cutter.
Q. And when you say a box cutter, does it have a
particular part on a box cutter that has a razorblade?
A. It has an angled blade that sticks out the end of it,
yes.
Q. Was that part facing you?
A. Yes.
Q. About how close was it to you?
A. Close enough that I cooperated.
Q. Where was it pointed?
A. In my face.
On cross-examination, Defendant’s counsel asked Ms. Walston about the box cutter:
Q. Okay. And you testified to the jury that you saw a
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STATE V. REDMOND
Opinion of the Court
box cutter, is that right?
A. Yes.
Q. Now, what I know to be a box cutter is a razorblade
which is enclosed inside of a metal cover --
A. Yeah.
Q. -- is that correct?
A. Correct.
Q. And essentially what you do with a box cutter is you
put the razorblade out and you pull --
A. And you open a box.
Q. -- pull it down and it opens a box?
....
Q. And specifically the box cutter, do you remember if
it was silver, black? Do you remember any color about it?
A. I believe it was silver. I do. I know the razor part
was silver.
Q. Okay.
A. That was in my face.
Although the weapon used here was a box cutter instead of a chef’s knife, the
facts here as to the use of the weapon are quite similar to Clevenger, where
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
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STATE V. REDMOND
Opinion of the Court
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.
Id. at ___, 791 S.E.2d at 256 (2016). The court in Clevinger held that since there was
no conflicting evidence about the knife or its use, the trial court did not err by failing
to give an instruction on common law robbery:
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. 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 of the
chef's knife, or he was not guilty at all.
Id. at ___, 791 S.E.2d at 256 (citations omitted).
Here, the State’s evidence was positive that the defendant held the box cutter,
with the blade extended, in Ms. Walston’s face and threatened to kill her if she did
not cooperate. See id. (“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.”). A box cutter is one type of
weapon which has been treated as deadly as a matter of law. See State v. Wiggins, 78
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STATE V. REDMOND
Opinion of the Court
N.C. App. 405, 407, 337 S.E.2d 198, 199 (1985) (“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 . . . we hold that the court did not err by
instructing that the weapon was dangerous per se.”). Therefore, as in Clevinger,
Defendant was either guilty of robbing the Tobacco Road Outlet with the threat of
using the open box cutter or he was not guilty at all. See Clevinger, ___ N.C. App at
___, 791 S.E.2d at 256. (“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 of the chef’s knife, or he was not guilty at
all.”).
IV. Conclusion
The trial court did not err in failing to instruct the jury on common law robbery.
NO ERROR.
Judges TYSON and HAMPSON concur.
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