State v. Wise
This text of State v. Wise (State v. Wise) 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.
Opinion
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-385
Filed: 17 December 2019
Mecklenburg County, No. 16CRS212439
STATE OF NORTH CAROLINA
v.
JERVARE MOQUAN WISE, Defendant.
Appeal by Defendant from judgment entered 11 October 2018 by Judge Lisa C.
Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 14
November 2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Barry H. Bloch, for the State.
Cooley Law Office, by Craig M. Cooley, for the Defendant.
DILLON, Judge.
Defendant Jervare Moquan Wise appeals from a judgment finding him guilty
of attempted robbery with a dangerous weapon. After careful review, we conclude
that the trial court committed reversible error by not instructing the jury on the lesser
included offenses of common law robbery.
I. Background
Defendant was arrested and tried by a jury for attempted robbery with a
firearm based on events that occurred at a convenience store. STATE V. WISE
Opinion of the Court
The evidence introduced by the State at trial tended to show as follows:
On 30 March 2016, Defendant and another man entered a convenience store
shortly before midnight. Defendant jumped over the counter, pointed what appeared
to be a gun at the store clerk and demanded money. When the store clerk replied
that he had already put the register’s money in the safe, both men fled the scene.
The detective testified at trial that during the investigation Defendant
admitted to the attempted robbery but claimed that the gun was actually a BB gun
painted black. No gun or BB gun was ever recovered.
During the charge conference, Defendant requested jury instructions on
attempted common law robbery and simple assault, lesser included offenses of
attempted robbery with a dangerous weapon. The trial court denied Defendant’s
request and instructed the jury on the charge of attempted robbery with a firearm.
Defendant was found guilty of attempted robbery with a firearm. Defendant
timely appealed to our Court.
II. Analysis
Defendant argues that the trial court erred in refusing to give jury instructions
concerning simple assault and attempted common law robbery. We review this
argument de novo. See, e.g., State v. Ligon, 332 N.C. 224, 241-42, 420 S.E.2d 136,
146-47 (1992).
-2- STATE V. WISE
Defendant, here, was convicted of armed robbery with a dangerous weapon
under N.C. Gen. Stat. § 14-87. The crime of “common law robbery” is a lesser included
offense of armed robbery with a dangerous weapon, the difference being that common
law robbery does not require proof that the defendant used a firearm or dangerous
weapon. State v. Langley, 371 N.C. 389, 396, 817 S.E.2d 191, 197 (2018).
Our Supreme Court has held that a trial court is required to instruct the jury
on lesser included offenses “whenever there is some evidence to support it,” State v.
Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981) (emphasis in original) (citations
omitted), and that “[t]he test is whether there is the presence, or absence, of any
evidence in the record which might convince a rational trier of fact to convict the
defendant of a less grievous offense.” State v. Millsaps, 356 N.C. 556, 562, 572 S.E.2d
767, 772 (2002) (internal marks omitted) (citation omitted).
Our Supreme Court has further held that “the failure to [instruct the jury on
a lesser included offense] constitutes reversible error that cannot be cured by a verdict
finding the defendant guilty of the greater offense.” State v. Lawrence, 352 N.C. 1,
19, 530 S.E.2d 807, 819 (2000).
With regard to robbery, our Supreme Court has instructed that when the
implement used appears to be a firearm, the law presumes, in the absence of any
evidence to the contrary, that the implement is, in fact, a firearm, whereupon no
instruction for common law robbery need be given. See, e.g., State v. Joyner, 312 N.C.
-3- STATE V. WISE
779, 782, 324 S.E.2d 841, 844 (1985). However, if there is any evidence – whether
offered by the State or by the defendant – that the implement used was not a deadly
weapon, then the trial court must also instruct the jury on common law robbery:
The mandatory presumption [that the implement was, in fact, a deadly weapon], however, is of the type which merely requires the defendant to 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. Therefore, when 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. . . . Such evidence . . . require[s] the trial court to permit the jury also to consider a possible verdict of guilty of the lesser included offense of common law robbery.
Id. at 783-84, 324 S.E.2d at 844-45 (emphasis in the original).
In this case, Defendant argued that he was entitled to an instruction on the
lesser included offense of common law robbery because the State put forth some
evidence that the weapon used was a BB gun and a BB gun is not a dangerous
weapon.
The resolution of this case is controlled by our Supreme Court’s holding in State
v. Alston, 305 N.C. 647, 290 S.E.2d 614 (1982). In that case, the State put forth
evidence that the weapon used was a .22 rifle. Id. at 649, 290 S.E.2d at 615. But the
State also put on evidence from another witness that the weapon used was a BB gun.
Id. at 650, 290 S.E.2d at 616. Our Supreme Court held that the latter testimony “that
the rifle was a BB rifle constituted affirmative evidence . . . [and] that the victims’
-4- STATE V. WISE
lives were not endangered . . . required the submission of the case to the jury on the
lesser included offense of common law robbery as well as the greater offense of
robbery with firearms or other dangerous weapons.” Id. at 651, 290 S.E.2d at 616.
See also State v. Allen, 317 N.C. 119, 123, 343 S.E.2d 893, 896 (1986) (recognizing
that a BB rifle is not a firearm or dangerous weapon within the meaning of the
robbery statute).
Based on our Supreme Court precedent, had that State’s witness not testified
that Defendant had claimed the weapon he used was a BB gun, then an instruction
on the crime of common law robbery would not have been required. But since the
witness did so testify, the trial court was required to instruct on common law robbery.
Defendant’s hearsay statement that the gun was a BB gun made to the detective is
substantive evidence on this issue, though offered by the State. See N.C. Gen. Stat.
§ 8C-1, Rule 801(d) (out-of-court statement by party-opponent is an exception to
hearsay); see also Joyner, 312 N.C. at 782, 324 S.E.2d at 844 (a defendant is entitled
to instruction on lesser included offense of common law robbery where either the
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
State v. Wise, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wise-ncctapp-2019.