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Criminal Practice – Armed Robbery – Acting in Concert – Armed Brother – Lesser Included Offense

Defendant was not entitled to dismissal of the armed robbery charge against him. A reasonable inference that defendant was acting in concert with his armed brother and with assailant Lonnie Degraffenreidt arises from the state’s evidence: Defendant and Degraffenreidt were hiding behind trashcans when defendant’s brother, Xavier, drove up in a car and pointed a gun at the victim. At the same time, defendant and Degraffenreidt moved toward the victim from behind, and Degraffenreidt started punching and taking the victim’s property while defendant stood behind Degraffenreidt. Finally, defendant and Degraffenreidt got into Xavier’s car, and they left together after the robbery was completed. The evidence raises more than suspicion or conjecture as to defendant acting in concert to commit robbery with a dangerous weapon and assault.

We find no error in defendant’s convictions for robbery with a dangerous weapon and assault.

Defendant was also not entitled to a jury instruction on the lesser included offense of common law robbery. Defendant argues that the taking of the victim’s property was the result of Degraffenreidt’s assault rather than Xavier’s firearm.

However, defendant and Degraffenreidt approached the victim while he was under the threat of a firearm. Although the transcript is unclear whether Xavier pointed the gun at the victim during the entire robbery, the victim’s property was taken at the same place where, and immediately after, Xavier pointed the gun at him. There remained an actual threat to the victim by Xavier’s possession, use, and threatened use of a dangerous weapon.

Further, the robbery was one continuous transaction. The criminal transaction began the moment Xavier held the victim at gunpoint a few feet away from defendant and Degraffenreidt, who were waiting behind trashcans as part of a common plan to rob the victim. The assault was another way of inflicting fear and violence on the victim in concert with the gun; the assault did not mark the commencement of a new transaction. Thus, the trial court did not err when it refused to instruct on common law robbery.

No error.

State v. Hodges (Lawyers Weekly No. 012-109-20, 12 pp.) (Hunter Murphy, J.) Appealed from Orange County Superior Court (G. Bryan Collins, J.) Sarah Zambon for the state; Michael Casterline for defendant. N.C. App. Unpub.

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