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Criminal Practice – Armed Robbery – Police Interrogation – Dangerous Weapon – Lesser-Included Offense

State v. Clevinger (Lawyers Weekly No. 011-309-16, 20 pp.) (Rick Elmore, J.) Appealed from Forsyth County Superior Court (Susan Bray, J.) N.C. App.

Holding: The remarks of a police detective during defendant’s interrogation were not relevant for purposes of placing defendant’s answers “in context” because defendant made no concessions during the interrogation. This evidence was not relevant for the purpose of showing the detective’s interrogation techniques because defendant’s responses never changed. Finally, the evidence was not relevant for the purpose of impeaching defendant’s credibility because he did not testify at trial. Although the detective’s statements were not relevant to the non-hearsay purposes for which they were offered, defendant has failed to show prejudice warranting a new trial, given the trial court’s clear jury instructions and the other, overwhelming evidence against him.

We find no prejudicial error in defendant’s conviction of robbery with a dangerous weapon.

Even though the trial court left it up to the jury to decide whether the knife used in the robbery was a dangerous weapon, since all of the state’s evidence pointed to an armed robbery – and not to a common law robbery – defendant was not entitled to a jury instruction on that lesser-included offense.

The knife used was the same one missing from a new three-piece set of chef’s knives purchased hours before the robbery. During the robbery, the man identified as defendant grabbed a 15-year-old girl, pulled her head back, and held the knife against her neck as he threatened to slit her throat.

The state’s evidence was clear and positive as to the dangerous weapon element, and there was no evidence from which a rational juror could find that the knife, based on its nature and the manner in which it was used, was anything other than a dangerous weapon. Nor was there any evidence that a knife was not used during the robbery, that the knife used was different than the one from the knife set, or that the knife was used in a non-threatening manner.

If the jury believed the state’s evidence – that defendant robbed the Stanleyville Business Center with the missing chef’s knife – then it was required to find him guilty of robbery with a dangerous weapon. But if the jury was not convinced that defendant was the robber, then it was required to acquit him altogether.

Therefore, defendant was not entitled to a lesser-included instruction for common law robbery. He was either guilty of robbing the SBC by the threatened use the chef’s knife, or he was not guilty at all.

No prejudicial error.


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