Opinion
No. COA10-1010
Filed 19 April 2011 This case not for publication
Appeal by defendants from judgments entered 3 March 2010 by Judge Patrice A. Hinnant in Forsyth County Superior Court. Heard in the Court of Appeals 9 February 2011.
Attorney General Roy Cooper, by Assistant Attorneys General Kimberly W. Duffley and John A. Payne, for the State. Duncan B. McCormick for defendant-appellant Sara Singleton. Paul F. Herzog for defendant-appellant Latesha Fuller.
Forsyth County Nos. 09 CRS 57553-54.
Where indictments gave the defendants sufficient notice of the charges against them by naming the property taken, stating that the weapon used was dangerous, and alleging that the weapon was used in a manner that endangered or threatened the life of the victim, the indictments were sufficient. Where a stronger, younger defendant repeatedly struck the elderly victim with a wooden stick, knocking him to the floor, there was sufficient evidence to submit the crime of robbery with a dangerous weapon to the jury.
I. Factual and Procedural History
On the morning of 3 July 2009, Thurmond Fletcher ("Fletcher"), a caregiver for 90-year-old Calvin Wideman ("Wideman"), brought four or five women to Wideman's home, including defendants, Sara Singleton ("Singleton") and Latesha Fuller ("Fuller") (collectively "defendants"). Fletcher asked Wideman, "Which one do you want?" and Wideman stated, "I want neither one of them." Fletcher then left with all of the women except defendants. Wideman asked defendants to leave, but they did not do so, despite Wideman telling them "that they had a bad body odor." Thereafter, Singleton struck Wideman three to four times on the shoulder and arm with a broomstick. Wideman fell out of his chair to the floor, and Fuller took Wideman's wallet out of his pocket. Fuller took between $160 and $170 from Wideman's wallet. Defendants then left Wideman's house just as Fletcher returned in his car, and defendants rode off in Fletcher's car.
Both defendants were later interviewed by Winston-Salem Police Detectives Allen and Bowen, and confessed to taking the money from Wideman. Both defendants were arrested on 9 July 2009 and charged with robbery with a dangerous weapon. Both defendants were indicted by the grand jury on 14 September 2009 for robbery with a dangerous weapon. The indictments read:
The jurors for the State upon their oath present that on or about the date of offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously did steal, take, and carry away and attempt to steal, take and carry away another's personal property, U.S. CURRENCY of the value of $170.00 dollars, from the presence, person, place of business, and residence of CALVIN WIDEMAN. The defendant committed this act having in possession and with the use and threatened use of firearms and other dangerous weapons, implements, and means, A WOODEN STICK whereby the life of CALVIN WIDEMAN was endangered and threatened.
On 16 September 2009, the State filed notice of two aggravating factors as to each defendant. On 1 March 2010, the two cases were joined for trial. Defendants were tried before a jury in Forsyth County Superior Court on 2-3 March 2010. Neither defendant offered evidence. The jury found both defendants guilty of robbery with a dangerous weapon. The jury further found the aggravating factor that the victim was very old as to each defendant. Singleton was sentenced to 77 to 102 months imprisonment. Fuller was sentenced to 65 to 87 months imprisonment.
Both defendants appeal.
II. Indictments
Both defendants assert that the indictments were insufficient to charge the crime of robbery with a dangerous weapon, and that this deprived the trial court of subject matter jurisdiction over the cases. We disagree.
A. Standard of Review
An allegation that the indictment was insufficient is a pure question of law, which we review de novo. State v. Marshall, 188 N.C. App. 744, 748, 656 S.E.2d 709, 712 (2008) (citing State v. Sturdivant, 304 N.C. 293, 309, 283 S.E.2d 719, 730 (1981)), disc. review denied, 362 N.C. 369, 661 S.E.2d 890 (2008).
B. Analysis
In order for the trial court to have subject matter jurisdiction over a case, the indictment charging the defendant must properly allege every element of the offense. Marshall, 188 N.C. App at 748, 656 S.E.2d at 712-13 (quotation omitted). "`The purpose of an indictment is to give a defendant notice of the crime for which he is being charged.'" State v. Brown, 178 N.C. App. 189, 195, 631 S.E.2d 49, 53 (2006) (quoting State v. Bowen, 139 N.C. App. 18, 24, 533 S.E.2d 248, 252 (2000)).
In the instant cases, the offenses charged were robbery with a dangerous weapon. The elements of this offense "are: (1) an 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." Marshall, 188 N.C. App. at 748-49, 656 S.E.2d at 713 (quoting State v. Haselden, 357 N.C. 1, 17, 577 S.E.2d 594, 605 (2003), cert. denied, 540 U.S. 988, 157 L. Ed. 2d 382 (2003)). Defendants do not challenge the first element, but do challenge the remaining two elements.
As to the second element, we must determine whether the indictments alleged the "use or threatened use of a firearm or other dangerous weapon." Id. "A dangerous or deadly weapon `is generally defined as any article, instrument or substance which is likely to produce death or great bodily harm.'" State v. Wiggins, 78 N.C. App. 405, 406, 337 S.E.2d 198, 199 (1985) (quoting Sturdivant, 304 N.C. at 301, 283 S.E.2d at 725). While some weapons, like guns, are inherently dangerous or deadly weapons, others, such as the stick at issue in the instant cases, are only considered dangerous or deadly when "the manner of its use, and the condition of the person assaulted" so indicate. State v. Smith, 187 N.C. 469, 470, 121 S.E. 737 (1924) (citations omitted). Our Supreme Court held:
it is sufficient for indictments . . . in which one of the elements is the use of a deadly [or dangerous] weapon (1) to name the weapon and (2) either to state expressly that the weapon used was a "deadly weapon" or to allege such facts as would necessarily demonstrate the deadly character of the weapon.
State v. Palmer, 293 N.C. 633, 639-40, 239 S.E.2d 406, 411 (1977).
The first of the two Palmer requirements, naming the weapon, was clearly met. The indictments charged that each defendant had in her possession and used or threatened the "use of firearms and other dangerous weapons, implements, and means, A WOODEN STICK." While the phrasing used in the indictments was not ideal, it is clear that the State alleged that the dangerous weapon used by defendants was a wooden stick.
As to the second element, defendants argue that there were insufficient facts alleged in the indictments to demonstrate that the wooden stick was deadly or dangerous. Singleton attempts to draw a distinction between the wooden stick at issue here and the stick at issue in Palmer. In Palmer, the stick at issue was a club weighing over two and a half pounds, and measuring two inches in diameter at the club end. Palmer, 293 N.C. at 635, 239 S.E.2d at 407. The indictment there charged that "[t]he assault was intended to kill and resulted in serious bodily injury, in that some teeth were knocked out and face was beat very badly." Id. at 634, 239 S.E.2d at 407. The stick at issue in the instant cases was a broom handle, which was not as heavy or as thick as the club used in Palmer. The indictments in the instant cases state nothing about the intent of defendants or injuries inflicted upon Wideman as a result of defendants' attack. Both defendants contend that the indictments needed to specify the nature of the stick and how the stick was used to endanger the life of Wideman. This is incorrect.
The indictments specified that "the life of CALVIN WIDEMAN was endangered and threatened" by means of "firearms and other dangerous weapons, implements, and means, A WOODEN STICK." All that is necessary under N.C. Gen. Stat. § 15A-924(a)(5) (2009) is that the pleading contain "[a] plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation." See also State v. Morris, 156 N.C. App 335, 338, 576 S.E.2d 391, 393 (2003) (quotation omitted) ("An indictment is constitutionally sufficient if it identifies the offense with enough certainty 1) to enable the accused to prepare his defense, 2) to protect him from being twice put in jeopardy for the same offense, and 3) to enable the court to know what judgment to announce in the event of conviction."), cert. denied, 357 N.C. 510, 588 S.E.2d 379 (2003). The indictments meet these requirements. They allege that the wooden stick was used in a dangerous manner, such that Wideman's life was endangered. This is all that is required.
Given the statutory requirements set forth above that focus on whether the defendant has been given notice of the allegations made against him, the courts have chosen not to apply the type of hyper-technical analysis suggested by defendants. For example, in State v. Hinson, we held that stating that the weapon used was a two and a half ton truck and that this was a deadly weapon was sufficient to support an indictment for assault with a deadly weapon. 85 N.C. App. 558, 564, 355 S.E.2d 232, 235 (1987), disc. review denied, 320 N.C. 635, 360 S.E.2d 98 (1987). In order for this Court to invalidate the indictment, it must "fail[] to state some essential and necessary element of" robbery with a dangerous weapon. State v. Kelso, 187 N.C. App. 718, 722, 654 S.E.2d 28, 31 (2007) (quoting State v. Gregory, 223 N.C. 415, 418, 27 S.E.2d 140, 142 (1943)), disc. review denied, 362 N.C. 367, 663 S.E.2d 432 (2008). The indictments in the instant cases sufficiently allege each element of the crime of robbery with a dangerous weapon to comply with the statutory requirements.
The terms "dangerous weapon" and "deadly weapon" are synonymous. State v. Smallwood, 78 N.C. App. 365, 368, 337 S.E.2d 143, 144 (1985).
Additionally, "[t]he language of an indictment charging a statutory offense is sufficient where it tracks the language of the statute." State v. Wade, 161 N.C. App. 686, 692, 589 S.E.2d 379, 383 (2003) (citing State v. Floyd, 148 N.C. App. 290, 295, 558 S.E.2d 237, 241 (2002)), disc. review denied, 358 N.C. 241, 594 S.E.2d 33 (2004). The portion of the indictments to which the defendants object essentially tracks the language of N.C. Gen. Stat. § 14-87(a) (2009), defining the crime of robbery with a dangerous weapon. The indictments lay out the charge "in a plain, intelligible, and explicit manner." N.C. Gen. Stat. § 15-153 (2009). The indictments were legally sufficient to charge defendants with the felony of robbery with a dangerous weapon and gave the defendants proper notice of the crime with which they were charged. See Sturdivant, 304 N.C. at 311, 283 S.E.2d at 731.
This argument is overruled.
III. Motions to Dismiss
In their second argument, defendants contend that the trial court erred in denying their motions to dismiss because the evidence did not support each element of the offense of robbery with a dangerous weapon. They also argue that the trial court erred in failing to set aside the jury's guilty verdicts for the same reason. We disagree.
A. Standard of Review
We evaluate a trial court's ruling on a motion to dismiss de novo. See State v. McNeil, 359 N.C. 800, 803-04, 617 S.E.2d 271, 273-74 (2005). When doing so, we must verify that "there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." Id. at 803, 617 S.E.2d at 273 (quotation omitted). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990) (citation omitted). Where, as here, the defendants presented no evidence, the State's evidence is to be considered in the light most favorable to the State, and the State should receive the benefit of all reasonable inferences from that evidence. See See McNeil, 359 N.C. at 804, 617 S.E.2d at 274 (quotation omitted). The standard of review for motions to set aside the verdict in a criminal case is the same as that for a motion to dismiss. State v. Parker, 185 N.C. App. 437, 446-47, 651 S.E.2d 377, 384 (2007) (quoting State v. Duncan, 136 N.C. App. 515, 520, 524 S.E.2d 808, 811 (2000)), disc. review denied, 362 N.C. 91, 657 S.E.2d 26 (2007).
B. Analysis
Defendants contend that the stick was not a dangerous weapon and that Wideman's life was not endangered or threatened. We hold that there was sufficient evidence presented for the crimes of robbery with a dangerous weapon to be submitted to the jury.
The stick was not a deadly weapon per se. We therefore analyze its character pursuant to the test set forth in State v. Peacock: "Whether an instrument can be considered a dangerous weapon depends upon the nature of the instrument, the manner in which defendant used it or threatened to use it, and in some cases the victim's perception of the instrument and its use." 313 N.C. 554, 563, 330 S.E.2d 190, 196 (1985) (citations omitted). Peacock also holds that, in order to sustain a jury verdict that the stick was a dangerous weapon based on the circumstances, "the evidence [must have been] sufficient to support a jury finding that [Wideman's] life was in fact endangered or threatened." Id. at 563, 330 S.E.2d at 195-96 (quoting State v. Alston, 305 N.C. 647, 650, 290 S.E.2d 614, 616 (1982)).
Defendants argue that the manner in which the stick was used was not dangerous, and it did not endanger the life of Wideman. They argue that Wideman did not require or receive any medical attention. However, this is only one of the factors to be considered in determining whether a particular implement is a "dangerous weapon" under N.C. Gen. Stat. § 14-87(a). State v. Smallwood, 78 N.C. App. 365, 368, 337 S.E.2d 143, 144-45 (1985). In Smallwood, we enumerated factors such as "the extent of the threat to the victim, . . . the physical stature of the [weapon] wielder, . . . the weakened state of the victim, . . . [and] whether or not and to what extent the victim was actually injured." Smallwood, 78 N.C. App. at 368, 337 S.E.2d at 144-45 (emphasis added) (citations omitted).
In this case, Singleton repeatedly struck Wideman with the stick, knocking him out of his chair and onto the floor. In Sturdivant, our Supreme Court held that when a knife was wielded by a person considerably stronger than the victim, it took on a deadly character. Sturdivant, 304 N.C. at 302, 283 S.E.2d at 726. Similarly, it held in State v. Archbell that when a weapon is used "upon a very frail and delicate" person, it is more likely to take on a deadly or dangerous character. State v. Archbell, 139 N.C. 537, 539, 51 S.E. 801, 801 (1905). Since both defendants were stronger than Wideman, and Wideman was "frail and delicate" due to his advanced age, these factors weigh in favor of the stick being used as a dangerous weapon. The actual injuries, while relevant, are not determinative. We hold that when considering all of the evidence, in the light most favorable to the State, there was sufficient evidence that the stick was used as a dangerous weapon and that Wideman's life was threatened or endangered for the crime of robbery with a dangerous weapon to be submitted to the jury. See also State v. Newton, No. COA02-1312, 2003 N.C. App. LEXIS 1784, at *9 (unpublished) (holding that a single blow with a wooden closet rod that did not cause injury was sufficient for a reasonable jury to find that the rod was a dangerous weapon).
All other arguments were explicitly abandoned by Fuller. They were not argued in Singleton's brief, and thus are deemed abandoned. N.C. R. App. P. 28(a).
NO ERROR.
JUDGES ELMORE and ERVIN concur.
Report per Rule 30(e).