Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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Smith's Criminal Case Compendium
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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.
Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.
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Affirming the court of appeals, the court held the State presented substantial evidence that the victim’s money was taken through the use or threatened use of a dangerous weapon. The court noted that the investigating officer had testified that the victim reported being robbed by a man with a knife. The court also held that the evidence was sufficient to establish that the victim’s life was endangered or threatened by the assailant’s possession, use, or threatened use of a dangerous weapon, relying on the testimony noted above and the victim’s injuries. The court rejected the defendant’s argument that the evidence failed to support this element because the victim never indicated that he was afraid or felt threatened, concluding that the question is whether a person’s life was in fact endangered or threatened by the weapon, not whether the victim was scared or in fear of his or her life.
The defendant and her boyfriend robbed the victim at his home. During the robbery the two pinned the victim down, hit him with a stick, and stunned him several times with a taser. The victim’s wallet was stolen, and he was left with blood coming out of his ears, a knot on his head, and a taser burn. The defendant was charged with robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. After being convicted at trial, the defendant raised several claims on appeal. The appellate court found no error as to the criminal convictions, but did reverse a related judgment of contempt.
First, the defendant argued that her motion to dismiss at trial should have been granted, because there was insufficient evidence that a taser was a deadly weapon. The appellate court disagreed, citing precedent including State v. Gay, 151 N.C. App. 530 (2002) in which a stun gun previously has been deemed a dangerous or deadly weapon. Moreover, noting that any implement can be a deadly weapon based on the manner in which it is used, in this case the taser was used to stun the victim in the course of beating him and causing injury, providing a sufficient factual basis from which the jury could find that the taser was a deadly weapon.
Second, the defendant argued that the trial judge improperly expressed an opinion during the jury instructions that the taser was a deadly weapon. This issue was not raised at trial level, but as an alleged statutory violation it was nevertheless reviewable de novo on appeal. However, the appellate court held there was no error. During one portion of the instructions, the trial judge identified the taser as the alleged deadly weapon, but the remainder of the instructions made it clear that it was left up to the jury to decide whether the taser was a deadly weapon in this case or not.
Third, the defendant sought plain error review on an unpreserved argument that the trial court erred by failing to instruct the jury on serious bodily injury. This argument was likewise rejected, since serious bodily injury is not an element of armed robbery. The trial court’s instructions on the deadly weapon element of armed robbery correctly explained that it means a weapon “capable of” causing death or serious bodily injury, and as noted above there was a sufficient showing of that capability here since it was used to incapacitate the victim. But the state was not required to prove, nor was the jury required to find, that the victim actually suffered serious bodily injury in this case.
Fourth, the appellate court denied the defendant’s claim of ineffective assistance of counsel, alleging that her attorney conceded her guilt to common law robbery without her knowledge or consent in violation of State v. Harbison, 315 N.C. 175 (1985). The court found that “[t]his assertion is simply not true,” as shown by the transcript. The trial judge engaged in a Harbison inquiry with the defendant immediately after her attorney’s closing arguments, and the defendant stated that she had discussed the admissions with her attorney beforehand and they were made with her consent.
Finally, the defendant appealed the trial court’s order holding her in direct criminal contempt for failing to put on the clothes provided for her. Based on a “plain reading” of G.S. 5A-14(b) and citing to more recent precedent, the appellate court held that the contempt order failed to clearly indicate that the trial judge had applied a reasonable doubt standard when making the factual findings, so the contempt order and judgment were reversed.
In this robbery case where the defendant was punished as a habitual felon, (1) the defendant failed to preserve a fatal variance argument; (2) there was insufficient evidence of attempted armed robbery; (3) assuming without deciding that the trial court expressed its opinion in violation of G.S. 15A-1222, the defendant was not prejudiced; and (4) the trial court erred by accepting the defendant’s stipulation to having attained habitual felon status.
Noting that a defendant must specifically state at trial that a fatal variance is the basis for a motion to dismiss in order to preserve that argument for appellate review, the court found that the defendant waived his variance argument by basing his motion to dismiss solely on insufficiency of the evidence.
With regard to insufficiency of the evidence of attempted armed robbery, the defendant argued that there was insufficient evidence of the use of a dangerous weapon. The defendant had threatened an associate with a pistol and rifle that appeared to be firearms but turned out to be an air pistol and a pellet rifle. Reviewing the rules from State v. Allen, 317 N.C. 119 (1986) and related cases about sufficiency of the evidence in situations involving instruments that appear to be but may not in fact be dangerous weapons, the court said that because the evidence was conclusive that the pistol and rifle were not firearms, the State was required to introduce evidence of the weapons’ “capability to inflict death or great bodily injury” to merit submission of the attempted armed robbery charge to the jury. As no such evidence was introduced, the trial court erred in denying the defendant’s motion to dismiss for insufficient evidence.
During the testimony of a defense witness, the trial court interjected to admonish the witness not to refer to the pistol and rifle as “airsoft” weapons because, in the trial court’s view, that terminology was not an accurate description of the items. Assuming without deciding that this admonishment was an improper expression of opinion and accepting for argument that it may have negatively impacted the jury’s view of the witness’s testimony, there was not a reasonable probability that the jury would have reached a different verdict absent the admonishment.
Finally, the State conceded and the court agreed that the trial court erred by accepting the defendant’s stipulation to having attained habitual felon status without conducting the required guilty plea colloquy.
The defendant and another person committed an attempted robbery of a convenience store in which they pointed what appeared to be a gun at the clerk and demanded money. When the clerk explained that he had already put the money in the store’s safe, the two men fled. The defendant was eventually charged with attempted armed robbery, but the weapon used was never found. At trial, a detective testified for the state that the defendant had admitted to committing the attempted robbery, but claimed that it was only a BB gun and not a real gun. The jury convicted the defendant of attempted armed robbery, and the defendant appealed. The defendant argued that the trial court erred by refusing to instruct the jury on the lesser-included offense of common law robbery. The appellate court agreed and vacated the conviction. The trial court is required to instruct the jury on the lesser-included offense of common law robbery “if there is any evidence – whether offered by the State or by the defendant – that the implement used was not a deadly weapon.” In this case, since the state presented some evidence (the defendant’s statement, as testified to by the detective) that the purported firearm was only a BB gun, the trial court was required to instruct the jury on the lesser offense.
In this armed robbery case, the trial court did not err by failing to instruct the jury on the lesser included offense of common law robbery. The court began its analysis by noting that “[o]nly one element distinguishes common law robbery and robbery with a dangerous weapon, and that element is the use of a dangerous weapon.” The trial court did not instruct the jury that the box cutter the state’s evidence tended to show the defendant used during the robbery was a dangerous weapon as a matter of law and instead submitted that factual issue to the jury. Relying on State v. Clevinger, ___ N.C. App. ___, 791 S.E.2d 248 (2016), the court held that the defendant was not entitled to an instruction on the lesser included offense because, though it did not do so, the trial court could have found the box cutter to be a dangerous weapon as a matter of law.
In this armed robbery case, the trial court did not err by failing to instruct the jury on the lesser-included offense of common law robbery. The defendant entered three convenience stores with his face covered and a gun in his hand and stole money in the presence of the store clerks. The defendant argued that the State failed to present evidence that the victims’ lives were endangered or threatened. With respect to two of the robberies, the defendant argued that there was no evidence that he actually pointed his gun at the clerks. With respect to the third, he noted that the clerk testified that she was “never scared.” The court distinguished cases holding that mere possession of a weapon during a robbery is insufficient to support a finding that the victim’s life was endangered or threatened on the basis that in those cases, neither the victim nor the bystanders actually saw the weapon. It went on to note that where the evidence establishes that a defendant held a dangerous weapon that was seen by the victim or a witness during the robbery, cases hold that this element is satisfied. Thus, with respect to the robberies where the clerks saw the defendant holding the gun, the evidence was sufficient. With respect to the third robbery, the court held, citing prior case law, that the State is not required to prove that the victim was in fact afraid.
In this armed robbery case, the evidence was sufficient to establish that the defendant used a dangerous weapon in a way that endangered the victim. A store loss prevention officer questioned the defendant about having taken some store jewelry in the store foyer. During the exchange, the victim saw a knife in the defendant’s pocket. The defendant attempted to force his way out of the store foyer and pulled the unopened knife out of his pocket. The victim grabbed the defendant’s hand and wrestled the closed knife away from the defendant while the defendant repeatedly said, “I will kill you.” Deciding an issue of first impression, the court cited cases from other jurisdictions and held that a closed knife can constitute a dangerous weapon for purposes of armed robbery. It stated: “Defendant’s brandishing and use of the knife satisfied the element of a dangerous weapon. The manner and circumstances in which Defendant displayed the knife alludes to its purpose: Defendant yelled ‘I will kill you,’ attempted to push past [the victim], removed the knife from his pocket and brandished it when [the victim] mentioned police involvement.” The court went on to hold that the State presented sufficient evidence tending to show that the victim’s life was endangered or threatened by the defendant’s actions and threats.
Where the State’s evidence was positive and uncontroverted as to whether a weapon used during an armed robbery was in fact a dangerous weapon and there was no evidence from which a rational juror could find that the weapon was anything other than a dangerous one, no error occurred when the trial court submitted the issue of whether the weapon was dangerous to the jury but did not instruct on common law robbery. The State’s evidence showed that during the robbery the defendant grabbed the victim, pulled her head back, and held a chef’s knife against her neck as he threatened to slit her throat.
The trial court did not err by denying the defendant’s motion to dismiss a charge of armed robbery. One of the victims testified that all three perpetrators had handguns. A BB pistol and a pellet gun were found near the scene of the robbery. The defendant argued that the State failed to produce any evidence that these items were dangerous weapons capable of inflicting serious injury or death. Distinguishing State v. Fleming, 148 N.C. App. 16 (2001) (trial court erred in denying the defendant’s motion to dismiss charge of armed robbery when the evidence showed that he committed two robberies using a BB gun and the State failed to introduce any evidence that the BB gun was capable of inflicting death or great bodily injury), the court held:
[U]nlike in Fleming, where the weapon used to perpetrate the robbery was recovered from the defendant’s direct physical possession, here there is no evidence that conclusively links either the BB pistol or the pellet gun to the robbery. Neither Defendant nor his co-conspirators were carrying any weapons when they were apprehended by police. Further, no evidence was offered regarding any fingerprints on, or ownership of, either gun, and neither the victims nor Defendant identified either of the guns as having been used during the robbery. Moreover, even assuming arguendo that both the BB pistol and the pellet gun could be conclusively linked to the robbery, [one of the victims] testified that all three of the men who robbed his home were armed with handguns. Although Defendant’s counsel attempted to impeach [the victim] on this point, the trial court properly left the credibility of [his] testimony as a matter for the jury to resolve, and as such, it would have been permissible for a reasonable juror to infer that not all, if any, of the weapons used during the robbery had been recovered or accounted for. Indeed, if taken as true, Defendant’s second post-arrest statement to Detective Snipes suggests that Defendant had the motivation and opportunity to “dump” the third weapon just like he claimed to have dumped the ounce of marijuana he purported to have stolen from the residence that investigators never recovered.
Thus, although the mandatory presumption that the weapons were dangerous did not apply, there was sufficient evidence for the case to go to the jury on the armed robbery charge.
There was sufficient evidence that a lawn chair was a dangerous weapon for purposes of armed robbery. The victim was knocked unconscious and suffered multiple facial fractures and injuries which required surgery; after surgery his jaw was wired shut for weeks and he missed 2-3 weeks of work; and at trial the victim testified that he still suffered from vision problems.
(1) The State presented sufficient evidence to establish that a stun gun was a dangerous weapon for purposes of armed robbery. The court concluded, in part, that although the victim did not die or come close to death, she was seriously injured. Given that serious injury “a permissive inference existed sufficient to support a jury determination that the stun gun was a dangerous weapon.” (2) The State presented sufficient evidence that the stun gun was used in a way that endangered or threatened the victim’s life. The court noted that the victim was tased, suffered significant pain, fell, injured her rotator cuff, endured two surgeries and extensive physical therapy, and two years later still experienced pain and a limited range of motion in her arm.