Is It Armed Robbery if a Defendant Has a Gun but Doesn’t Expressly Menace the Victim?

Last week, the Court of Appeals of North Carolina decided State v. Wright, a case that answers an interesting question: Does a defendant commit armed robbery when he takes a victim’s property after displaying a gun, even if he doesn’t point the gun at the victim or expressly threaten to shoot the victim — and even if the victim denies having being scared?
Yes, said the court.

Facts. The case arose out of a series of convenience store robberies in Cleveland County. In the robbery most pertinent to the issue on appeal, the defendant entered a Kangaroo Express and told the clerk that he was robbing the store but didn’t want to hurt her. The clerk saw that the defendant had a gun, but he didn’t point it at her or threaten to shoot her. He eventually took some coins from the register area and fled.

At least according to her trial testimony, the clerk was totally unfazed by all this. At one point, she told the defendant that she was busy taking the trash out, so if he wanted to get into the register he needed to do it himself. At another point she advised the defendant, “young man, you better hurry because there are going to be people coming in.” At trial, she said that she was “never scared.”

Argument on appeal. The defendant was charged with, and convicted of, armed robbery. He appealed, arguing that the evidence of armed robbery was weak enough that the trial judge should have instructed the jury on the lesser-included offense of common law robbery.

Robbery with a dangerous weapon has the following elements:

• Taking property from the person of another
• By the use or threatened use of a dangerous weapon
• Whereby the life of a person is endangered or threatened

The defendant’s position was that the third element was questionable. He noted that he never pointed the gun at the clerk and didn’t expressly threaten to shoot her.

Mere possession of a weapon during a robbery is not enough. The court of appeals disagreed. But first, it acknowledged that the mere fact that a defendant possesses a weapon during a robbery is not enough to satisfy the endangered/threatened element. The weapon must be employed in some manner. But the court noted that the cases in which a defendant’s mere possession of a weapon had been deemed insufficient to establish the third element all involved weapons that were possessed secretly — concealed to the point that the victims and bystanders were unaware of their presence.

Possessing a visible weapon is sufficient. By contrast, the court ruled that “where the State’s evidence establishes that a defendant held a dangerous weapon that was seen by the victim or a witness during the course of the robbery, the third element of armed robbery is satisfied,” even if the weapon is not pointed at the victim and even if the defendant does not expressly menace the victim with the weapon. The court did not discuss the rationale for this holding in depth, but it is plausible to view a defendant who displays or brandishes a weapon as implicitly threatening to use it.

Victim’s lack of fear is irrelevant. The court also rejected the defendant’s argument that the victim’s professed lack of fear showed that her life was not endangered or threatened. In essence, it is the objective threat or danger, and not the victim’s subjective experience of danger, that is determinative of the existence of the third element.