An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA15-240

                                         Filed: @

Mecklenburg County, Nos. 12 CRS 217536, 33966

STATE OF NORTH CAROLINA

              v.

HORACE HAMID KERSEY, Defendant.


       Appeal by defendant from judgment entered 10 June 2014 by Judge Nathaniel

J. Poovey in Mecklenburg County Superior Court. Heard in the Court of Appeals 9

September 2015.


       Roy Cooper, Attorney General, by Robert D. Croom, Assistant Attorney General,
       for the State.

       Staples Hughes, Appellate Defender, by David W. Andrews, Assistant Appellate
       Defender, for defendant-appellant.


       ZACHARY, Judge.


       Where there was evidence at trial to support a finding that a weapon was not

dangerous, the trial court did not err in instructing the jury on the lesser included

offense of common law robbery. Where a prior record level worksheet alone was

insufficient to support a finding of defendant’s prior record level, the trial court erred

in its sentence.

                         I. Factual and Procedural Background
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                                  Opinion of the Court



      On 21 April 2012, Keith Scott was approached at a bus stop by a man wearing

a red jersey and black jeans, asking for money. Scott replied that he did not have any

money and entered a nearby store. Scott exited the store and crossed the street to a

business center; the man followed him. When Scott emerged, the man approached

him again. Scott told the man that he did not have anything, and the man insisted,

“I am not talking about money. I am talking about cocaine.” Scott then took a phone

call for about five minutes. When Scott completed his call, the man removed a razor

blade from his mouth, approached Scott, and put the blade to Scott’s neck. The man

then took Scott’s gold necklace and put it in his own pocket. Scott followed the man

for some time, before the man fled from view. Scott then called 911 and gave the

dispatcher a description of the man.

      Officer Corey Geohagan responded to the call. Seeing a man matching the

description given by Scott, Officer Geohagan ordered the man to stop.           Officer

Geohagan found a gold necklace on the man’s person and a razor blade in his left

hand. Scott identified the man as the person who took his necklace, and identified

the necklace found on the man’s person as his. The man identified himself as Horace

Kersey (defendant).

      Defendant was indicted for robbery with a dangerous weapon, being an

habitual felon, and being a violent habitual felon. The trial court instructed the jury

on robbery with a dangerous weapon and on the lesser included offense of common



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                                  Opinion of the Court



law robbery. On 10 June 2014, the jury found defendant guilty of common law

robbery and of being an habitual felon. The trial court determined that defendant

had a prior record level of VI and sentenced him to 146-188 months imprisonment.

      Defendant appeals.

                             II. Lesser Included Offense

      In his first argument, defendant contends that the trial court erred in

instructing the jury on the lesser included offense of common law robbery. We

disagree.

                               A. Standard of Review

      “[Arguments] challenging the trial court’s decisions regarding jury instructions

are reviewed de novo by this Court.” State v. Osorio, 196 N.C. App. 458, 466, 675

S.E.2d 144, 149 (2009). “The prime purpose of a court’s charge to the jury is the

clarification of issues, the elimination of extraneous matters, and a declaration and

an application of the law arising on the evidence.” State v. Cameron, 284 N.C. 165,

171, 200 S.E.2d 186, 191 (1973), cert. denied, 418 U.S. 905, 41 L. Ed. 2d 1153 (1974).

“[A] trial judge should not give instructions to the jury which are not supported by

the evidence produced at the trial.” Id. “Where jury instructions are given without

supporting evidence, a new trial is required.” State v. Porter, 340 N.C. 320, 331, 457

S.E.2d 716, 721 (1995).




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                                  Opinion of the Court



      “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.” State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771

(2002).

                                     B. Analysis

      At trial, the jury was instructed on the crimes of robbery with a dangerous

weapon and common law robbery, together with the doctrine of recent possession.

Defendant contends, however, that the instruction on common law robbery was not

supported by the evidence because the only evidence established that defendant used

a dangerous weapon.

      It is axiomatic that “[c]ommon law robbery is 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. Porter, 198 N.C. App. 183, 186, 679 S.E.2d 167, 169-70

(2009) (quoting State v. Smith, 305 N.C. 691, 700, 292 S.E.2d 264, 270 (1982)). In

contrast, “when there is an actual danger or threat to the victim's life—by the

possession, use, or threatened use of a dangerous weapon—the defendant may be

charged and convicted of armed robbery rather than common law robbery.” Id. at

187, 679 S.E.2d at 170 (quoting State v. Duff, 171 N.C. App. 662, 671, 615 S.E.2d 373,

380 (2005)) (emphasis added). “The difference between the two crimes is the use of a

dangerous weapon in the commission of the robbery.” Id. at 187-88, 679 S.E.2d at



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                                  Opinion of the Court



170 (quoting State v. Ryder, 196 N.C. App. 56, 65, 674 S.E.2d 805, 811 (2009)).

“Absent the firearm or dangerous weapon element, the offense constitutes common

law robbery.” Id. at 188, 679 S.E.2d at 170 (quoting State v. Gaither, 161 N.C. App.

96, 100, 587 S.E.2d 505, 508 (2003), disc. review denied, 358 N.C. 157, 593 S.E.2d 83

(2004)).

      The issue of what is considered to be a dangerous weapon is well-settled under

North Carolina law. When a device is used that gives the impression of being a

dangerous weapon, “the law presumes, in the absence of any evidence to the contrary,

that the instrument is what his conduct represents it to be—an implement

endangering or threatening the life of the person being robbed.” State v. Spellman,

167 N.C. App. 374, 390, 605 S.E.2d 696, 706 (2004) (quoting State v. Joyner, 312 N.C.

779, 782, 324 S.E.2d 841, 844 (1985)) (emphasis in original). At this point the

defendant must “‘come forward with some evidence (or take advantage of evidence

already offered by the prosecution) to rebut the connection between the basic and

elemental facts [.]’” Id. at 390, 605 S.E.2d at 706 (quoting State v. White, 300 N.C.

494, 507, 268 S.E.2d 481, 489 (1980) (emphasis in original)). In contrast, “[w]hen any

evidence is introduced tending to show that the life of the victim was not endangered

or threatened, ‘the mandatory presumption disappears, leaving only a mere

permissive inference’ that requires the trial court to instruct the jury on common-law

robbery as well as armed robbery.” Id. at 390, 605 S.E.2d at 706 (quoting Joyner, 312



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                                    Opinion of the Court



N.C. at 783, 324 S.E.2d at 844) (emphasis in original) (internal quotations omitted).

Accordingly, this Court found that in order to determine whether the trial court in

Spellman correctly instructed “only on armed robbery, ‘the dispositive issue ... is

whether any substantial evidence was introduced at trial tending to show

affirmatively that the instrument used by the defendant was not a firearm or deadly

weapon[.]’” Id. at 390, 605 S.E.2d at 706 (quoting State v. Williams, 335 N.C. 518,

523, 438 S.E.2d 727, 729 (1994)).

      In the instant case, Scott testified that defendant threatened Scott with a razor

blade, and when Officer Geohagan apprehended him, defendant was holding a razor

blade. The determinative question remains, however, whether the razor blade was a

deadly weapon. If it was not, an instruction on the lesser offense of common law

robbery would have been appropriate.

      At trial, two pieces of evidence suggested that the razor blade was not

dangerous. First, Scott testified that during the robbery the blade was touching his

neck, but that he was not injured by the contact.          Second, Scott testified that

defendant obtained the razor blade from defendant’s own mouth, where defendant

had been storing it with no apparent ill effect. Scott’s testimony indicated that

defendant had been speaking with the razor blade in his mouth without any

discernable injury or discomfort.




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                                   STATE V. KERSEY

                                   Opinion of the Court



      We hold that these facts, taken together, constitute evidence sufficient to

support a finding that the razor blade under consideration was not a deadly weapon,

thereby supporting an instruction on common law robbery. Accordingly, we hold that

the trial court did not err in instructing the jury on the lesser included offense of

common law robbery.

      Defendant raises no argument with respect to the other elements of robbery

with a dangerous weapon. Accordingly, such arguments are deemed abandoned

pursuant to Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure.

      This argument is without merit.

                                III. Prior Record Level

      In his second argument, defendant contends that the trial court erred in

sentencing him at prior record level VI. We agree.

                                A. Standard of Review

      This Court reviews alleged sentencing errors for “‘whether [the] sentence is

supported by evidence introduced at the trial and sentencing hearing.’” State v. Deese,

127 N.C. App. 536, 540, 491 S.E.2d 682, 685 (1997) (quoting N.C. Gen. Stat. § 15A-

1444(a1) (Cum. Supp. 1996)).

      “The State bears the burden of proving, by a preponderance of the evidence,

that a prior conviction exists and that the offender before the court is the same person




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                                   Opinion of the Court



as the offender named in the prior conviction.” N.C. Gen. Stat. § 15A-1340.14(f)

(2013).

                                      B. Analysis

      During the sentencing hearing, the State presented the trial court with a prior

record level worksheet indicating that defendant had a prior record level of VI.

Defendant explicitly refused to stipulate to this prior record level.       On appeal,

defendant contends that this worksheet alone was insufficient to support the trial

court’s determination of his prior record level.

      At sentencing, the State bears the burden of proving that a prior conviction

exists and that the defendant is the offender named therein. N.C. Gen. Stat. § 15A-

1340.14(f). “There is no question that a worksheet, prepared and submitted by the

State, purporting to list a defendant’s prior convictions is, without more, insufficient

to satisfy the State’s burden in establishing proof of prior convictions.” State v.

Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d 738, 742 (2002).

      In the instant case, defendant contends that the State submitted only the prior

record level worksheet to support its assertion of defendant’s prior record level. The

State, in its appellate brief, contends otherwise. Specifically, the State presents an

excerpt from the transcript, in which the State approached the bench and discussed

a “record.”    The State contends that this excerpt suggests that defendant’s




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                                  Opinion of the Court



Department of Criminal Information record was submitted to the trial court at that

time, but was not introduced into evidence or preserved for the record on appeal.

      We are not prepared to share in the State’s conjecture. The record on appeal,

including the transcripts, clearly shows the State’s submission of the prior record

level worksheet. It does not demonstrate any other evidence being submitted to the

trial court to support a determination of defendant’s prior record level. Accordingly,

we vacate defendant’s sentence as a prior record level VI, and remand for

resentencing.

      NO ERROR IN PART, VACATED AND REMANDED IN PART.

      Judges STEPHENS and McCULLOUGH concur.

      Report per Rule 30(e).




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