State v. Hedgecoe

415 S.E.2d 777 (1992) 106 N.C. App. 157

STATE of North Carolina
v.
Bobby Lee HEDGECOE, Jr.

No. 9126SC638.

Court of Appeals of North Carolina.

May 5, 1992.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen., Kathryn Jones Cooper, Raleigh, for State.

William M. Davis, Jr., Asst. Public Defender, Charlotte, for defendant-appellant.

WELLS, Judge.

Defendant presents three assignments of error to this Court on appeal. He assigns error to the trial court's denial of his motion to instruct the jury on the lesser included offenses of assault with a deadly weapon and simple assault on the ground the evidence presented at trial would support a verdict from the jury on either of the lesser offenses. Defendant also assigns error to the trial court's denial of his motion to amend the jury instructions as to the elements of common law robbery on the ground that the instructions did not conform to the language of the indictment. Defendant last assigns error to the verdict of guilty of possession of drug paraphernalia on the ground it was unsupported by the evidence and to the trial court's denial of his motion to poll the jury to determine the ground on which he was found guilty of common law robbery.

Defendant first assigns error to the trial court's denial of his motion to instruct the jury on the crimes of assault with a deadly weapon and simple assault as lesser included offenses of common law robbery. He contends the trial court committed prejudicial error by denying his motion and that the evidence presented at trial would allow the jury to convict him of either of these lesser offenses if the jury had received instructions on them. We disagree.

A defendant is entitled to jury instructions on a lesser included offense of a crime, even in the absence of a specific request for such instruction, when there is some evidence to support the lesser offense. State v. Chambers, 53 N.C.App. 358, 280 S.E.2d 636 (1981). However, when all the evidence tends to show that defendant committed the crime with which he is charged and there is no evidence of guilt of the lesser included offense, the court correctly refuses to charge on the unsupported lesser offense. Id; citing State v. Redfern, 291 N.C. 319, 230 S.E.2d 152 (1976).

Defendant was tried on the charge of committing common law robbery. The elements of the offense of common law robbery are (1) the felonious, non-consensual taking of (2) money or personal property (3) from the person or presence of another (4) by means of violence or fear. State v. Smith, 305 N.C. 691, 292 S.E.2d 264, cert. denied, 459 U.S. 1056, 103 S. Ct. 474, 74 L. Ed. 2d 622 (1982).

It is clear the evidence presented by the State establishes that defendant committed the crime of common law robbery by acting in concert with his co-defendant. The State's evidence tended to show that defendant and Davis positioned themselves to accost Duckworth by hiding between buildings and behind bushes in a field. Davis asked Duckworth for money several times and was soon joined by defendant who repeated the requests. Defendant and Davis grabbed Duckworth and defendant held Duckworth by his shirt as Davis took his necklaces. Further, defendant pointed an inoperable gun at Duckworth's chest demanding money from him and preventing Duckworth's attempt to get away from defendant.

The evidence presented by the State establishes that defendant committed only the crime of common law robbery against Duckworth. Defendant's evidence only tended to show that he committed no offense, not a lesser offense. The trial court was correct in denying his request for instructions on the lesser crimes of assault with a deadly weapon and simple assault. Therefore, this assignment of error is overruled.

Defendant next assigns error to the trial court's denial of his motion to amend the jury instructions on the charge of common law robbery. He contends the language of the jury instruction on this charge should have conformed to the charge in defendant's indictment that he robbed Duckworth of jewelry rather than "personal property." He further contends that the failure of the trial court to amend the instruction may have allowed the jury to convict defendant on evidence presented at trial that he also took a dollar bill rather than jewelry as charged in the indictment. We disagree.

It is well settled that the trial court must instruct the jury on all substantial and essential issues of a case arising on the evidence presented at trial. State v. Lawrence, 94 N.C.App. 380, 380 S.E.2d 156, review denied, 325 N.C. 548, 385 S.E.2d 506 (1989). It is equally well settled that the trial court is not required to give a requested instruction in the exact language of the request, so long as the instruction is given in substance. State v. Townsend, 99 N.C.App. 534, 393 S.E.2d 551 (1990).

Our review of the contested jury instruction shows that the trial court properly charged the jury on the elements of common law robbery. The trial court's use of the term "personal property" rather than "jewelry" as found in the indictment cannot be considered prejudicial in the context of the evidence. Defendant seeks to draw a distinction between the charge in the indictment and the evidence presented at trial that defendant did not physically remove jewelry from Duckworth but rather took money instead. This distinction is irrelevant. Defendant was tried on the theory of acting in concert with Davis and the evidence presented at trial clearly shows that defendant and Davis acted in concert to take the property and money of Duckworth from his person by fear and violence. Defendant need not have physically removed Duckworth's personal property in order to be guilty of common law robbery. This assignment of error is also overruled.

Defendant next assigns error to the jury's verdict finding him guilty of possession of drug paraphernalia. He contends the evidence presented by the State was insufficient to convict him of this crime and that the trial court should have granted his motions to dismiss this charge for insufficiency of the evidence and not submit this issue to the jury. We agree.

This assignment raises the question of whether the evidence presented at trial was sufficient to convict defendant of the crime of possession of drug paraphernalia. The State must present substantial evidence of each element of the crime with which defendant has been charged to sustain a conviction of that crime. State v. Beatty, 64 N.C.App. 511, 308 S.E.2d 65 (1983). If substantial evidence has been presented to support each element of the crime charged, the trial court must submit the charged crime to the jury. State v. Jones, 96 N.C.App. 389, 386 S.E.2d 217 (1989).

G.S. §§ 90-113.20-113.24 (1990), our Drug Paraphernalia Act, defines "drug paraphernalia" as "all equipment, products and materials of any kind that are used to facilitate, or intended or designed to facilitate, violations of the Controlled Substances Act, including ... ingesting, inhaling, or otherwise introducing controlled substances into the human body." Further, this Act provides that "hypodermic syringes, needles, and other objects for parenterally injecting controlled substances into the body" are considered drug paraphernalia. See G.S. § 90-113.21. G.S. § 90-113.22 provides in pertinent part, as follows:

Possession of Drug Paraphernalia.

(a) It is unlawful for any person to knowingly use, or to possess with intent to use, drug paraphernalia to ... inject, ingest, inhale, or otherwise introduce into the body a controlled substance which it would be unlawful to possess.

Thus, the State must present substantial evidence that defendant possessed the hypodermic syringe and needle found on him by the arresting officers with the intent to use the syringe in connection with controlled substances.

The State introduced the hypodermic syringe and needle found in defendant's possession on the night of his arrest. This evidence was accompanied by the testimony of the arresting officer who stated that these items were used to introduce drugs of "some kind" into the body. This evidence presented by the State merely established that defendant possessed a hypodermic syringe and needle but did not show any other incriminating circumstances. See, e.g., State v. Jones, 96 N.C.App. 389, 386 S.E.2d 217 (1989) (weighing scales found in defendant's car near 54 grams of cocaine; conviction of possession of paraphernalia upheld). In this case, the mere possession of the needle and syringe fails to establish the crucial element of possession of drug paraphernalia with the accompanying intent necessary to establish a violation of our Controlled Substances Act. Therefore, the trial court erred by failing to grant defendant's motions to dismiss this charge.

Finally, defendant assigns as error the trial court's failure to poll the jury to determine on what evidence defendant was found guilty of common law robbery. He contends the trial court's denial of this request prejudiced his constitutional rights to a jury trial, a unanimous verdict and further entitles him to a new trial. We note the record in this case reveals the trial court had already polled the jury to determine the unanimity of the verdict in accordance with G.S. § 15A-1238 (1990) prior to defendant's request on which he appeals. G.S. § 15A-1238 entitles every defendant to a polling of the jury to determine the unanimity of the verdict. This statute does not entitle defendant to an unlimited number of polls. State v. Martin, 315 N.C. 667, 340 S.E.2d 326 (1986). This assignment of error is overruled.

For the reasons stated, we find no error in defendant's conviction of common law robbery and vacate the conviction of possession of drug paraphernalia. Accordingly, this case is remanded to the trial court for resentencing. See State v. Wortham, 318 N.C. 669, 351 S.E.2d 294 (1987).

As to 90 CRS 79257,

No error in the trial, remanded for resentencing.

As to 90 CRS 79258,

Judgment vacated.

ARNOLD and EAGLES, JJ., concur.