Opinion
No. 544, 1998.
August 16, 1999.
Appeal from the Superior Court, Sussex County, CrA S98020562I, S98020565I, S98020566I, S98100417I.
AFFIRMED
Unpublished Opinion is below.
LEE M. SCOTT, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 544, 1998. Supreme Court of Delaware. Submitted: July 20, 1999. Decided: August 16, 1999.
Court Below: Superior Court of the State of Delaware in and for Sussex County, Cr. A. Nos. S98020562I, S98020565I, S98020566I, S98100417I.
Before VEASEY, Chief Justice, WALSH and HOLLAND, Justices.
ORDER
This 16th day of August 1999, upon consideration of the briefs of the parties, it appears to this Court that:
(1) On February 16, 1998, at approximately 10:00 p.m., Dr. Earl Bradley left work at Beebe Hospital in Lewes, Delaware to walk home. As he walked through the hospital parking lot, an individual grabbed him from behind and held an object to his head while demanding money. Bradley recognized the object as a gun due to its size and general appearance. According to Bradley, the individual also threatened him several times, saying "I will shoot you, this is a gun." Bradley did not have his wallet with him. This caused the individual to become upset and strike Bradley twice on the side of his head with the object before walking away slowly. Due to the presence of a street lamp, Bradley got a good look at his assailant during the attempted robbery.
(2) Bradley returned to the hospital where he called the police and received treatment for his injuries. At about 2:00 a.m., the Lewes police found a man in the hospital parking lot matching the description given by Bradley. Bradley positively identified that man, Lee M. Scott, as his assailant. After searching the vicinity and Scott's person, the police were unable to recover any firearm or ammunition.
(3) Following a one-day trial on October 26, 1998, a Superior Court jury found Scott guilty of one count first degree attempted robbery, one count possession of a deadly weapon during commission of a felony, one count second degree assault and one count terroristic threatening. Prior to deliberations, Scott requested jury instructions on lesser included offenses for the charges of attempted robbery and assault, arguing that the State did not present sufficient credible evidence of a firearm to support the charged offenses. The trial court rejected this request and Scott now appeals the trial court's denial of his requested jury instructions.
Scott only appeals the denial of the requested jury instructions for the lesser included offense of second degree attempted robbery. As he does not raise the identical issue with respect to the denial of the requested jury instructions for the lesser included offense of third degree assault, we deem this argument abandoned. See Somerville v. State, Del. Supr., 703 A.2d 629, 631 (1997).
(4) This Court reviews the trial court's denial of a requested jury instruction for abuse of discretion so long as the instruction given is a correct statement of the substantive law.
See Atkins v. State, Del. Supr., 523 A.2d 539, 549 (1987).
(5) A person is guilty of second degree robbery when, "in the course of committing theft, the person uses or threatens the immediate use of force upon another person with intent to. . . . [c]ompel the owner of the property . . . to deliver up the property. . . ." A person is guilty of first degree robbery when that person has met the elements for second degree robbery and has met an additional element, such as displaying "what appears to be a deadly weapon." Attempted robbery is an offense of the same grade and degree as robbery.
(6) The trial court need not instruct the jury concerning a lesser included offense "unless there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense." In other words, the record must contain evidence that would allow conviction of the lesser included offense to the exclusion of the charged offense.
11 Del. C. § 206(c); See also Slater v. State, Del. Supr., 606 A.2d 1334, 1338 (1992).
See Ward v. State, Del. Supr., 575 A.2d 1156, 1159 (1990).
(7) In this case, the only "evidence" relied upon by Scott for his contention that the trial court erred in denying his request are the facts that the police never recovered a gun and the State never introduced any gun into evidence. He claims that without a gun in evidence, the jury reasonably might have found that he did not meet the "extra" element required for first degree attempted robbery. But Scott misconstrues the "extra" element defined in 11 Del. C. § 832(a)(2). In determining when a defendant has displayed "what appears to be a deadly weapon" within the meaning of § 832(a)(2), this Court has applied an analysis that focuses primarily on the subjective, reasonably based beliefs of the victim. As this Court held in Deshields, "[w]hen the victim's subjective belief is accompanied by an objective physical manifestation that the robber appears to be displaying a deadly weapon, it is sufficient evidence to establish that necessary element of Robbery in the First Degree."
See Deshields v. State, Del. Supr., 706 A.2d 502, 507 (1998); State v. Smallwood, Del. Supr., 346 A.2d 164, 166 (1975).
(8) Based on the only evidence presented at trial, the jury either had to convict Scott of first degree attempted robbery or acquit him of attempted robbery. Under 11 Del. C. § 206(c), the evidence did not support a rational basis for conviction of second degree robbery to the exclusion of first degree robbery, unless the jury completely ignored the words used by Scott when he accosted Bradley and Bradley's own recognition of the object as a gun. Absent evidence contradicting the State's establishment of the "extra" element under 11 Del. C. § 832(a)(2), we find no merit in Scott's claim of error.
NOW, THEREFORE, IT IS HEREBY ORDERED that the decision of the Superior Court is AFFIRMED.
BY THE COURT:
E. Norman Veasey Chief Justice