State v. Robbins

392 S.E.2d 449, 99 N.C. App. 75, 1990 N.C. App. LEXIS 482
CourtCourt of Appeals of North Carolina
DecidedJune 19, 1990
DocketNo. 895SC562
StatusPublished
Cited by4 cases

This text of 392 S.E.2d 449 (State v. Robbins) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Robbins, 392 S.E.2d 449, 99 N.C. App. 75, 1990 N.C. App. LEXIS 482 (N.C. Ct. App. 1990).

Opinions

JOHNSON, Judge.

The State’s evidence tended to show the following: On 16 June 1986 at approximately 3:00 a.m., prosecuting witness Cora Dixon was awakened in her bed by the defendant’s striking her about the face with his fist. Defendant, who was unclothed during the attack, then pushed Ms. Dixon to the floor and cut her neck with a knife. Ms. Dixon attempted to push defendant’s knife away from her. Defendant sat on the floor with his legs apart, straddling Ms. Dixon. During the struggle, Ms. Dixon’s son, six-year-old Maurice, came into the bedroom and yelled for defendant to stop hitting his mother. Ms. Dixon called to her son to run.

Defendant released Ms. Dixon and grabbed Maurice as the child was running from the room. Defendant put the boy on the bed and stabbed him in the neck. While doing this, he held Ms. Dixon to the floor with his foot.

When Ms. Dixon managed to get up, defendant threw her on the bed and began choking her. Ms. Dixon scratched defendant and he let her go. Defendant went into the front room, and Ms. Dixon tried to escape through the front door. Defendant pulled her back, told her she could not leave, and continued trying to cut her.

Ms. Dixon managed to get away again and stood in the bedroom doorway. She begged defendant to leave them alone. Defendant threw down his hands, uttered an obscenity, and dropped his knife. Ms. Dixon grabbed her son by the hand and ran next door to the home of her neighbor, Delphine Smith. A rescue squad arrived and took Ms. Dixon and her son to a hospital.

Ms. Dixon testified that she had known defendant for about three years. He was a friend of an ex-boyfriend of hers. She stated that she had never dated the defendant, and had made it clear to him on more than one occasion that there could never be anything between them. She also testified that on the night defendant broke into her home, he did not say or do anything to indicate that he was trying to rape her.

Ms. Smith testified that she had heard the struggle going on next door and had called the police. After Ms. Dixon and Maurice had been in her home for about five minutes, defendant knocked on her door and said he was not going to do anything, and that he wanted to know if “they” were all right. Ms. Smith told defendant to leave. As he did so, he was confronted by police.

[78]*78Defendant said to Officer Rodenberg, who was at the scene, “Lock me up. I have done something terrible.” After being taken to the police department and advised of his rights, defendant gave a statement to police admitting that he had stabbed Ms. Dixon’s son. Also on 16 June, defendant gave another statement to Officer Enos in which he stated that he had drunk some rum earlier in the evening and had been dropped off near Ms. Dixon’s house. He walked to her house, and entered through a window with the intention of “making love” to Ms. Dixon. She was asleep, and defendant started beating her. He admitted stabbing both. Ms. Dixon and Maurice, and admitted that the knife found at the scene of the crime was his.

Defendant also stated that after the Dixons left their house, he called the police and told them what had transpired. He also said that the last time he had seen the prosecuting witness before the night of 16 June was probably during the previous April. At that time, Ms. Dixon had become upset when defendant told her not to hit her child and had scratched defendant on the face.

The medical doctor who treated Maurice testified that the child had two wounds to the neck and a punctured right lung. He stated that the injuries were very severe, and that Maurice was hospitalized for twelve days. Ms. Dixon sustained a number of cuts and her right lung was punctured. She was hospitalized for five days.

By his first Assignment of Error, defendant contends that he is entitled to a new trial for first-degree burglary because the trial judge failed to properly define and explain the elements of burglary when instructing the jury. Defendant’s first-degree burglary conviction is based on the theory that at the time of the break-in, he intended to commit the underlying felony of rape. The jury charge failed to define the crime of rape. Defendant made no objection at trial to the instructions given, thus waiving the issue on appeal. Rule 10(b)(2), N.C. Rules App. Proc. Defendant, therefore, contends that the lack of an instruction defining rape constituted “plain error.” State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983). We disagree.

Our Supreme Court has addressed the similar question of whether the failure to define the underlying felony of larceny in a burglary case constituted prejudicial error. State v. Simpson, 299 N.C. 377, 261 S.E.2d 661 (1980). In that case, the Court held [79]*79that the trial court’s failure to define larceny did not constitute prejudicial error:

The failure to define larceny in burglary cases in which larceny is specified as the felony the accused intended to commit is not always prejudicial and does not invariably require a new trial. The extent of the definition required depends upon the evidence in the particular case. State v. Spratt, 265 N.C. 524, 144 S.E.2d 569 (1965). “In some cases, as where the defense is an alibi or the evidence develops no direct issue or contention that the taking was under a bona fide claim of right or was without any intent to steal, ‘felonious intent’ may be simply defined as an ‘intent to rob’ or ‘intent to steal.’ On the other hand, where the evidence raises a direct issue as to the intent or purpose of the taking, a more comprehensive definition is required.” State v. Mundy, 265 N.C. 528, 144 S.E.2d 572 (1965) (citations omitted). So it is also with respect to when, and to what extent, the word larceny must be defined and explained in burglary cases. In the case before us, there was no necessity for any definition or explanation of the word “larceny” because there was no evidence suggesting the television was borrowed, or taken for some temporary purpose, or otherwise negating a taking with felonious intent to steal.

State v. Simpson, supra at 384, 261 S.E.2d at 665.

Defendant argues that in this case intent to commit the underlying felony was in issue, and therefore, “rape” should have been defined. The victim testified that defendant did not attempt to rape her, and defendant stated that he intended to “make love” to the victim. We agree that the evidence raised at least an issue regarding defendant’s intent when he entered the victim’s house, and therefore, the trial court should have defined the crime of rape. Even assuming that the trial court’s failure to define rape constituted prejudicial error, we do not find that it amounted to “plain error” so as to entitle the defendant in this case to a new trial.

Our Supreme Court has stated that the plain error rule is to be applied cautiously, and in assessing a defect in jury instructions, the reviewing court “must examine the entire record and determine if the instructional error had a probable impact on the jury’s finding of guilt.” State v. Odom, supra at 661, 300 S.E.2d at 379, citing United States v. Jackson, 569 F.2d 1003

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Bluebook (online)
392 S.E.2d 449, 99 N.C. App. 75, 1990 N.C. App. LEXIS 482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-robbins-ncctapp-1990.