Armed Robbery and Representations about Weapons

Twice each year, the School of Government welcomes newly-appointed magistrates for two weeks of training. Part of the curriculum involves learning the elements of common crimes. When I teach the elements of armed robbery, an exchange like this always ensues:

Me: Imagine that a bad guy comes into a convenience store and tells the clerk “I have a gun, give me all the money in the register or I’ll use it.” The bad guy gets the money, but is apprehended as he leaves the store and doesn’t actually have a gun. Should he be charged with armed robbery?

Magistrate: Of course. The bad guy said he had a gun and the clerk had no reason to doubt that. He was probably scared to death!

Me: Good try. But the bad guy wasn’t actually armed, so he didn’t actually endanger the clerk’s life and so didn’t actually commit armed robbery.

Magistrate: What are you talking about? G.S. 14-87 includes the “threatened use of any firearm.” The bad guy threatened to use a gun, and that’s good enough.

I have always taken the position that armed robbery can’t be charged on the posited facts, but every year, I struggle to convince the group of that. Sometimes I get the same question, or a variant thereof, from a prosecutor. So I thought I’d look into the issue more closely and write a post about it, in the hopes of putting it to bed.

Here’s the statute:

Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time, either day or night, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of a Class D felony.

The two elements relevant to this issue are:

  • “[H]aving in possession or with the use or threatened use” of a dangerous weapon
  • “[W]hereby the life of a person is endangered or threatened”

Looking at the text of the statute and at the elements, the magistrate’s argument is plausible: the bad guy arguably threatened to use a dangerous weapon, and in so doing, threatened the life of the clerk. There’s also some support in the case law for that argument. The best case for the magistrate is State v. Jarrett, 167 N.C. App. 336 (2004). There, the court of appeals affirmed two armed robbery convictions where the defendant told each victim that he had a gun, but did not display a gun and was eventually arrested without a gun. The court emphasized the “threatened use” language in the statute and held that the evidence was sufficient because “the defendant represented he had a firearm and . . . circumstances led the victim reasonably to believe the defendant had a firearm and might use it.” Id. (internal quotation marks and citations omitted).

But consider State v. Allen, 317 N.C. 119 (1986), where the state’s evidence suggested that the defendant used a .22 caliber pistol during a robbery while the defendant’s evidence suggested that it was a cap pistol. Because the trial judge instructed the jury that items that “look like firearms” count as dangerous weapons, the state supreme court reversed the defendant’s armed robbery conviction. It stated that “the law does not transform [a cap pistol] into a dangerous weapon merely because it appears to be one.” In essence, the court held that the endangerment element is not satisfied when a defendant falsely represents that he has a weapon. And that rationale applies equally to the scenario I discuss with the magistrates. In other words, if a defendant cannot be convicted of armed robbery based on the representation that he has a gun when in fact he has a toy pistol, surely it follows that a defendant cannot be convicted of armed robbery based on the representation that he has a gun when in fact he has no weapon at all. Indeed, the court stated, “[i]f all the evidence shows the instrument could not have been a firearm or other dangerous weapon capable of threatening or endangering the life of the victim, the armed robbery charge should not be submitted to the jury.” Id. Based on Allen – a supreme court decision, unlike Jarrett – I believe that my answer to the magistrate in the dialogue above is correct. See also State v. Williams, 127 N.C. App. 464 (1997) (“It is reversible error for a trial court to submit an armed robbery charge to the jury where conclusive evidence at trial establishes that no actual gun was used.”)

I’m inclined to view the quoted language in Jarrett as dicta. The court was surely correct to affirm the defendant’s convictions, under the rule that “[w]hen a robbery is committed with what appeared to the victim to be a firearm or other dangerous weapon capable of endangering or threatening the life of the victim and there is no evidence to the contrary, there is a mandatory presumption that the weapon was as it appeared to the victim to be.” Allen, supra. The fact that the defendant didn’t have a gun on his person when he was arrested hours later doesn’t undercut the presumption, because it is entirely plausible that the defendant had a gun at the time of the robbery, but disposed of it before his arrest. Cf. State v. Joyner, 312 N.C. 779 (1985) (the defendant robbed the victim at gunpoint; he was arrested six hours later and led officers to the gun he said he used, an unloaded .22 rifle with no firing pin; sufficient evidence supported his armed robbery conviction because the gun might have been altered in the interim between crime and arrest).

To sum up, when a defendant claims he has a gun but the evidence clearly shows otherwise – as in the scenario I use with new magistrates – he shouldn’t be charged with armed robbery. When a defendant claims he has a gun and there’s no evidence to the contrary, he may be charged and the state is entitled to a mandatory presumption on the deadly weapon element. When a defendant claims he has a gun and there’s only inconclusive evidence to the contrary, he may be charged but there is no mandatory presumption. Of course, some fact patterns will fall in a gray area – for example, when a robber claims he has a gun but doesn’t show it, then is apprehended on foot a few minutes thereafter, and the police find no gun on his person and no gun along his flight path. But making tough decisions like that is why magistrates get paid the big bucks!

9 thoughts on “Armed Robbery and Representations about Weapons”

  1. The real problem is the jury instruction which is utterly unclear.

    Now, I charge that for you to find the defendant guilty of robbery with a dangerous weapon, the State must prove seven things beyond a reasonable doubt:

    …Sixth, the defendant had a dangerous weapon in his possession at the time he obtained the property or that it reasonably appeared to the victim that a dangerous weapon was being used, in which case you may infer, but you are not required to infer, that said instrument was what the defendant’s conduct represented it to be. . .

    This seems to say that jury must find D had a gun but that they can infer that from the representation

    In Jarrett the jury had sought clarification on that point twice.

    It doesn’t seem to much to ask that if a jury asks a yes or no question the court should be able to answer it yes or no

  2. Ok that’s great but how about this. A suspect enters your shop or approches you. He has a gun in plain site in his belt. He informs you he wants your money & you shoot the suspect. Did you protect property or life. Remember the gun was in plain site but the suspect never touched it. The same can happen during any robbery with the threat of firearm use. So now where does the victim stand with the use of deadly force? Look like someone will get killed & the victim might go to jail.

  3. To Tim Jones: The victim may get charged (I doubt it), he may go to trial (I seriously doubt it), but he will never get convicted and, therefore, will not “go to jail.” The implied threat to use the gun was enough (for most reasonable people and probably all prosecutors) to justify his use of force. Unlike on TV and in the movies, you do not have to wait for the bad guy to point the gun at you before you can shoot. By the time he points the gun at you, it’s too late for you if he is actually going to shoot (and, of course, you don’t know if he is actually going to shoot). Rich.

  4. For all the “tinkering” the august legislature engages in to appear they’ve done something, why don’t they simply settle the issues by legislation-A person is guilty of armed robbery if they possess a firearm, whether loaded or not, or represent that they possess a firearm?” It is absurd to be guilty of common-law robbery in some situations when a gun is involved, yet always be guilty of armed robbery when the weapon is a knife or broken bottle.

  5. To Richard McMahon: Thanks for the reply & I agree with you but there is a but/if. I believe there are people confined to D.O.C who are not gulity of anything. The use of deadly force is confusing & a DIstrict Attorney is voted into a a Polictical Office. Add Politics, Federal funding, Confusing of the law & you Sir might enter into D.O.C. I am a retired Law Enforcement Officer who has seen the cost & the fall from grace of people who have done nothing. Getting arrested & being found not guilty is still not fun. It starts with Law Enforcement taking the time to sort the evidence & the facts of the incident. Please read the use of deadly force in NC. I would always retreat if I could to avoid any involvement with the Government. I like the fact that you have implied common judgement in your reply. Tell me Sir where I can go an find some of this so I can inform most people in this business who don’t have none!

  6. Interesting Post, I remember having this same conversation with you a few years ago. I beleive I was on the losing side of the debate.

    Side note, while most of this blog deals with subject matter for a higher level of court than the Magistrate’s level, it is both intriguing and helpful and I enjoy reading. Thanks.

  7. This is all very tantalizing, but how I am supposed to answer this essay question on the Bar exam?

    I think in the past, the Examiners have loved to test on armed robbery.

    Any advice would be most appreciated!


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