                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
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                                  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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      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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                                   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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                                    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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                                   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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                                  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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                                   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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                                   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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                                      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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