A knife blade does not have to be open and exposed to be “dangerous” during a robbery, the North Carolina Court of Appeals unanimously ruled in a case of first impression.
In State v. Whisenant, the court rebuked Jackson Whisenant’s contentions that his December 2014 Kmart heist did not warrant a subsequent robbery with a dangerous weapon conviction because the knife he used to threaten a security officer was unopened.
The unanimous panel cited decisions from other jurisdictions in holding that Whisenant’s “brandishing and use of the knife satisfied the element of a dangerous weapon.”
“The manner and circumstances in which Defendant displayed the knife alludes to its purpose,” Judge John Tyson wrote for the court.
Whisenant was represented by Aaron Young of Grassy Creek, who declined to comment on the case.
According to court documents, it was five days before Christmas when Whisenant walked into a Waynesburg Kmart and tried to walk out without paying for nearly $100 worth of necklaces and watches. He didn’t go unnoticed, however, and was approached by a loss prevention associate, identified only as “Mr. Pate,” who questioned him about the theft. Whisenant denied having anything on him and cursed Pate, repeatedly placing his hands into his pockets where Pate says he saw a knife.
Pate said he told Whisenant to get his hand off the knife, but instead, Whisenant pulled the unopened knife out of his pocket and tried to leave the store. At some point, documents say, Pate threatened to call the police. Pate wrestled the knife away as Whisenant repeatedly said, “I will kill you.”
When a second security officer approached, Whisenant pepper sprayed both men and fled to a pizza shop across the parking lot.
According to police, a pizza shop employee whose truck was parked nearby saw Whisenant toss the stolen items under the truck and hide what turned out to be methamphetamine between the windshield and hood.
Whisenant was charged with robbery with a dangerous weapon, possession with intent to sell methamphetamine and three counts of simple assault.
He was convicted on all counts in July 2015 but argued on appeal that the robbery charge should have been dismissed because the weapon was unopened and the state failed to establish that the Pate’s life was in danger or threatened.
According to state law, a dangerous weapon is any instrument or substance likely to produce death or great bodily harm. And as established in 1985’s State v. Peacock, not only the nature of the instrument is considered, but “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.”
Tyson noted that the appeals court has “repeatedly” addressed what includes a dangerous weapon in North Carolina, citing cases where a knife unseen by the victim and a robber’s finger — inside his pockets and pointed at his victims — qualified.
The opinion also noted that while it was an issue of first impression for this court, other jurisdictions have ruled that closed knives used in robberies satisfy the dangerous weapon element.
The Georgia Court of Appeals, for instance, held that a gesture toward another person with an unopened knife satisfies the element. And in Texas, the appeals court held that an unopened knife is “legally sufficient to support a conviction” where the defendant placed the victim in imminent fear of serious harm or death and exhibited a knife that “in the manner of its use or intended use, was capable of causing serious bodily injury or death.”
“Both cases,” Tyson wrote, “rely on the manner and conduct in which the respective defendants displayed the knives.”
The court added that Pate feared for his life when Whisenant wielded the knife with “dire threats.”
“Mr. Pate testified he felt afraid ‘when the knife came out’ of Defendant’s pocket,” Tyson wrote. “The State’s evidence clearly shows more than mere possession of a dangerous weapon.”
Durham criminal defense attorney T. Greg Doucette said he isn’t surprised by the ruling, likening an unopened knife to a gun with an empty magazine.
Kevin Boxberger, a defense attorney with The Law Offices of Anna Smith Felts in Raleigh, believes the decision is the correct one, given precedence and the broad definition of a dangerous weapon.
“The facts in Whisenant clearly show through the defendant’s behavior and words that the unopened pocket knife was a dangerous weapon that endangered or threatened the loss prevention officer’s life,” Boxberger said. “It would have taken less than a second for the defendant to open up and display the blade. Even if the defendant did not intend to open pocket knife, during the struggle, it could have inadvertently opened and caused serious injury to either party.”
The 11-page decision is State v. Whisenant (Lawyers Weekly No. 011-314-16). A digest of the opinion is available online at nclawyersweekly.com.
Follow Heath Hamacher on Twitter @NCLWHamacher