In North Carolina, the general rule is that “an attempt to commit a . . . felony is punishable under the next lower classification as the offense which the offender attempted to commit.” G.S. 14-2.5. However, the armed robbery statute, G.S. 14-87, makes it a class D felony to “take or attempt to take” property from another while in possession of a dangerous weapon. The specific terms of the statute therefore create an exception to the general rule, and render attempted armed robbery the same offense class as the completed crime. The fact that attempted armed robbery is specifically set out in the armed robbery statute and is the same offense class as armed robbery has created considerable doctrinal trouble. In the past month, the General Assembly has tried to fix the problems and the state supreme court has weighed in on an analogous issue. Continue reading
Tag Archives: armed robbery
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? Continue reading →
The court of appeals recently held that a defendant who was initially unarmed, then stole a weapon from a victim, was properly convicted of armed robbery because the defendant was armed with the weapon that he stole. Sound circular? Read on.
First off, the recent case is State v. McMillan. In brief, the evidence suggested that the defendant was a drug dealer; that he went to a car wash unarmed to talk to two people, at least one of whom was a customer; that the defendant somehow obtained a gun from the victims; that he used it to shoot and kill both victims; and that he ran off with the gun. The court of appeals found that the defendant had committed armed robbery, stating that “defendant’s taking and use of the weapon were part of a continuous transaction, such that it was proper to convict defendant of the armed robbery of the same instrument used to commit the robbery.”
McMillan cites State v. Manness, 363 N.C. 261 (2009), a case in which the defendant took an officer’s gun, shot and killed the officer, and fled. Among many other offenses, the defendant was convicted of armed robbery. On appeal, he argued that he could not properly be “convicted of robbery with a dangerous weapon when the object taken in the robbery is also the firearm used to perpetrate the offense.” The supreme court disagreed. First, it observed that the armed robbery statute, G.S. 14-87, requires a taking “with the use or threatened use of any firearms or other dangerous weapon.” Second, it noted that “an armed robbery can be a continuous transaction,” i.e., that the use of the weapon may come after the taking. (For example, the continuous transaction theory applies when a defendant takes an item from a victim, the victim gives chase, and the defendant brandishes a weapon to scare the victim off.) Finally, the court concluded that “defendant’s use of the gun [to shoot the officer] was inseparable from the taking of it and defendant’s efforts to flee.” Therefore, it affirmed the defendant’s armed robbery conviction.
Manness, in turn, cites State v. Black, 286 N.C. 191 (1974). In Black, the defendant asked a shopkeeper to see a knife the shopkeeper had for sale. When the shopkeeper handed the knife to the defendant, the defendant told her “[i]f you don’t give us this knife, we’re going to get you,” then beat her into unconsciousness. After he was convicted of armed robbery, he appealed, claiming that the jury should have been instructed on common law robbery. The supreme court disagreed, stating that “defendant robbed [the victim] with a knife, or he did not rob [her] at all.” The case is not completely on point, though, because the defendant does not seem to have argued that it was improper to convict him of armed robbery with the same weapon being both the object of the theft and what made the robbery “armed.” Further, there was some evidence that the defendant tried to take money from the victim, which would have provided an alternate basis for sustaining the armed robbery conviction.
Even though Black doesn’t provide much support, the results in Manness and McMillan seem right. They’re not much different than the example I gave above about the defendant who brandishes a weapon to dissuade a victim from giving chase. In each case, the defendant uses a weapon to complete a taking that was initially accomplished without the use of a weapon. Of course, not every robbery in which a firearm is taken will amount to armed robbery. For example, if an unarmed defendant approaches a victim who is carrying a firearm in a locked case and, by threatening to punch the victim in the nose, takes the gun away from the victim and runs off with it, that’s regular robbery, not armed robbery.
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!
The court of appeals decided State v. Cole, __ N.C. App. __ (2009), yesterday. Simplifying the facts a bit, the two defendants planned to rob two victims, and, brandishing firearms, went to the home the victims shared. One of the victims claimed to be unsure about where her money was. She led one of the defendants on a half-hour wild goose chase to various locations. (They never “found” her money, which was in her pocket the entire time!) Meanwhile, the other defendant remained with the other victim at the victims’ home. At some point, that defendant stole some of the victims’ property. The latter defendant was convicted of, inter alia, kidnapping and armed robbery. On appeal, he argued that he did not restrain the victim beyond the level of restraint inherent in the robbery, and so could not be convicted of kidnapping under State v. Fulcher, 294 N.C. 503 (1978) (“[C]ertain felonies [such as] forcible rape and armed robbery . . . cannot be committed without some restraint of the victim. . . . [T]he Legislature [did not intend] to make a restraint, which is an inherent, inevitable feature of such other felony, also kidnapping so as to permit the conviction and punishment of the defendant for both crimes.”). As a later case explained the Fulcher rule, “[T]he key question is whether the kidnapping charge is supported by evidence from which a jury could reasonably find that the necessary restraint for kidnapping exposed the victim to greater danger than that inherent in the underlying felony itself.” State v. Muhammad, 146 N.C. App. 292, 295 (2001).
The court of appeals agreed with the Cole defendant that his kidnapping conviction could not stand, even though the defendant restrained the victim for 30 minutes, considerably longer than necessary to effectuate the robbery. The court relied in part on State v. Allred, 131 N.C.App. 11 (1998), which in turn relied on State v. Irwin, 304 N.C. 93 (1981). Those cases hold that when a victim is briefly restrained at gunpoint during an armed robbery, or even is moved a small distance as part of the robbery — for example, from the front of a store to the back — a kidnapping conviction cannot be sustained. Neither case involved the sort of protracted restraint at issue in Cole.
Of course, the fact that Cole does not strictly follow from Allred or Irwin does not mean that Cole was wrongly decided. Rather, Cole is a close case in an area where bright lines are difficult to draw. Among the factors that the appellate courts consider when deciding whether a kidnapping conviction can be sustained are (1) whether the victim was bound, (2) whether the victim was injured, (3) whether the victim was moved, and (4) how long the victim was restrained. In Cole, only the fourth factor cut in favor of sustaining the kidnapping conviction, while the others weighed against.
This issue arises with remarkable frequency, and often results in relief on appeal. Among other recent cases in this area, consider State v. Payton, __ N.C. App. __, 679 S.E.2d 502 (2009) (kidnapping conviction not proper where victim was moved to a bathroom during a robbery, but not bound or harmed, following Irwin); State v. Gayton-Barbosa, __ N.C. App. __, 676 S.E.2d 586 (2009) (where the defendant grabbed the victim and assaulted her, the grabbed her again as she attempted to flee, both kidnapping and assault convictions were proper because “[d]etaining [the victim] in her home and then again outside was not necessary to effectuate the assaults charged”); State v. Thomas, __ N.C. App. __, 676 S.E.2d 56 (2009) (rape and kidnapping convictions were both proper where the defendant dragged the victim into his car and drove her around in addition to restraining her during the rape); State v. Taylor, __ N.C. App. __, 664 S.E.2d 375 (2008) (kidnapping conviction vacated because ordering a store employee into the back of the store during a robbery was necessary to the commission of the robbery); and State v. Boyce, 361 NC 670 (2007) (kidnapping conviction proper where the defendant dragged the victim back into her home and then proceeded to rob her).