              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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                                     Opinion of the Court



              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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                                   Opinion of the Court



             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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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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                                   Opinion of the Court



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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                                   Opinion of the Court



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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                                  Opinion of the Court



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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