State v. Wilson

468 S.E.2d 475, 121 N.C. App. 720
CourtCourt of Appeals of North Carolina
DecidedMarch 5, 1996
DocketNo. COA94-931
StatusPublished
Cited by2 cases

This text of 468 S.E.2d 475 (State v. Wilson) 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. Wilson, 468 S.E.2d 475, 121 N.C. App. 720 (N.C. Ct. App. 1996).

Opinion

McGEE, Judge.

Defendant Wilson brings forth six arguments on appeal. After a review of the record and transcript, we find no error.

I.

Most of the defendant’s assignments of error and arguments deal with her contention that while she admits participation in taking the victim’s property, she is only guilty of felonious larceny or common law robbery, not guilty of robbery with a firearm. In support of this contention, Wilson argues she should have been allowed to continue cross-examination of Detective Janice Harris concerning the allega[723]*723tions contained in the warrant and she should have been allowed to introduce into evidence certain statements made by Howard. Wilson also contends the trial court erred by denying her motion to dismiss at the close of all the evidence for insufficient evidence to support the offense charged. We disagree.

Although we see no error in the rulings of the trial court to which Wilson has objected, we need not reach the merits of these arguments. A defendant wishing to overturn a conviction on the basis of error relating to non-constitutional rights has the burden of showing a reasonable possibility that a different result would have been reached at trial absent the error. N.C. Gen. Stat. § 15A-1443(a) (1988). Wilson has not met this burden. The record contains abundant evidence that defendant was properly convicted of robbery with a firearm. Although the jury was also instructed on the theory of acting in concert, there is ample evidence that Wilson’s own acts constituted armed robbery.

The elements necessary to constitute 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. N.C. Gen. Stat. § 14-87. Wilson admitted during her testimony she actively participated in the taking of the victim’s and his roommate’s property, stating she carried two of the three bags of clothing from the apartment to the car. Therefore the taking element was established and the State only had to also prove Wilson used a dangerous weapon to threaten or endanger the victim’s life. The record shows the State sufficiently proved these elements and the trial court correctly denied Wilson’s motion to dismiss for insufficiency of the evidence to support the offense charged.

On direct examination, the victim was asked the following:

Q: And the young woman who held the gun to your head and robbed you is in this courtroom; is that correct?
A: Yeah. She’s right there (indicating).
The Court: Ah, who are you [pointing to]—
Witness: Ms. Wilson.

Upon cross-examination, the victim testified as follows:

[724]*724Q: Ah; upon closer questioning you say that [the defendant] was the girl with the gun?
A: It was.
Q: Well, why did you say “I think, I believe” [defendant was the one with the gun]?
A: Because, um, it’s been a year.
Q: Yes, sir. Ah, so you think it was her but it’s entirely possible it was the other girl?
A: It was her.
Q: Huh?
A: It was her.

On recross-examination, after admitting he did not remember whether one or both of the women initially took him upstairs and tied him, the victim was asked if both of the women were eventually upstairs. He replied: “Yeah, they were both up there, and both had had the gun to my head. They both threatened my life. And they both took my stuff.” Wilson admitted holding the gun while being in the same room where the victim was tied up, saying: “I was sitting on the bed with the gun in my hand, laying [sic] up against the bed.” However, she denied ever pointing the gun at the victim.

Wilson now claims the trial court erred in striking testimony of Detective Harris concerning the substance of the arrest warrant. She argues the warrant, although it states the offense charged is robbery with a dangerous weapon, fails to allege the use of a firearm or other dangerous weapon in the description of the offense. The judge stopped the defense questioning of Harris regarding the warrant, believing the questioning concerned the validity of the warrant, which is a question of law for the court, not the jury. Wilson claims the purpose of this line of questioning was not to question the warrant, but to “support defendant’s defense [of felonious larceny/common law robbery] and ... to weaken the State’s case by impeaching the charging officer’s credibility.” However, even if the striking of this testimony constituted error, in light of the State’s overwhelming evidence of Wilson’s guilt of robbery with a firearm, we fail to see how a different result would have been reached at trial absent the error.

[725]*725Likewise, we find no prejudicial error in the trial court’s exclusion of statements made by Dwanda Howard, which Wilson claims show it was Howard’s idea to commit the robbery. The trial court ruled the statements were hearsay, with no applicable exception. We agree the statements were inadmissible. However, even if the trial court erroneously excluded them, it makes no difference who actually planned the robbery. In light of the evidence of Wilson’s active participation in the crime, she cannot show a different result would have been reached if the statements had been admitted into evidence. Wilson also claims Howard made other statements which support her defense. However, she made no offer of proof at trial of such statements, they are not part of the record, and we may not consider them on appeal. N.C.R. App. P. 9(a).

II.

Wilson argues the trial court erred by refusing to instruct the jury on the lesser included offense of common law robbery. We disagree.

When a person commits a robbery by the use or threatened use of what appears to be a firearm or dangerous weapon, the law presumes, absent any evidence to the contrary, that the instrument is what it appears to be — a weapon endangering the life of the person being robbed. State v. Thompson, 297 N.C. 285, 289, 254 S.E.2d 526, 528 (1979). This presumption is mandatory when no evidence is introduced to show the victim’s life was not in danger. State v. Joyner, 312 N.C. 779, 782, 324 S.E.2d 841, 844 (1985). However, if the defendant comes forward with some evidence tending to show the instrument was not a dangerous weapon, then the mandatory presumption disappears and the jury may, but is not required to, infer the instrument used was a dangerous weapon. Joyner, 312 N.C. at 783, 324 S.E.2d at 844. In such a case, instruction on the lesser included offense of common law robbery should also be given. See Joyner, 312 N.C. at 786, 324 S.E.2d.at 846.

When faced with this question, our Supreme Court said: “The dis-positive 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 . . . .” State v. Williams, 335 N.C.

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Bluebook (online)
468 S.E.2d 475, 121 N.C. App. 720, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wilson-ncctapp-1996.