State v. Owens

327 S.E.2d 42 (1985)

STATE of North Carolina v. Allen Mitchell OWENS.

No. 844SC520.

Court of Appeals of North Carolina.

March 19, 1985.

*43 Appellate Defender Adam Stein by Asst. Appellate Defender James A. Wynn, Jr., Raleigh, for defendant.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. James Peeler Smith, Raleigh, for the State.

JOHNSON, Judge.

Defendant's sole contention on appeal is that common law robbery is not definitionally a lesser included offense of robbery with a dangerous weapon, therefore the court erred in submitting common law robbery as a possible verdict. We disagree.

Defendant was indicted under G.S. 14-87(a) which reads as follows:

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 such person or persons in the commission of such crime, shall be guilty of a Class D felony.

Under the statute a defendant may be convicted of robbery with a dangerous weapon when it is charged that he took or attempted to take property from the person of another and that he did so by using or threatening to use a dangerous weapon. State v. Joyner, 295 N.C. 55, 243 S.E.2d 367 (1978). On the other hand, however, common law robbery requires an actual taking of property with violence or intimidation. State v. King, 299 N.C. 707, 264 S.E.2d 40 (1980).

Because common law robbery requires an actual taking of property, defendant argues that it is not definitionally a lesser included offense of robbery with a dangerous weapon which requires either an actual taking or an attempted taking of property. Although defendant acknowledges the precedent of cases holding that common law robbery is a lesser included offense of robbery with a dangerous weapon, See, e.g., State v. Swaney, 277 N.C. 602, 178 S.E.2d 399, appeal dismissed, 402 U.S. 1006, 91 S. Ct. 2199, 29 L. Ed. 2d 428 (1971); State v. Wenrich, 251 N.C. 460, 111 S.E.2d 582 (1959); State v. Hare, 243 N.C. 262, 90 S.E.2d 550 (1955), defendant submits that State v. Weaver, 306 N.C. 629, 295 S.E.2d 375 (1982) redefined the test for determining what is a lesser included offense and that Weaver, therefore, requires *44 this Court to hold that common law robbery is not a lesser included offense of robbery with a dangerous weapon.

In Weaver, the primary question was whether the offense of taking indecent liberties with a child under the age of sixteen, G.S. 14-202.1 is a lesser included offense of first degree rape of a child of the age of twelve or less, G.S. 14-27.2(a)(1). In addressing this issue, the Court stated that the determination is made on a definitional, not a factual basis. The court then reiterated the well-established rule in this jurisdiction that:

[w]hen a defendant is indicted for a criminal offense, he may be convicted of the charged offense or a lesser included offense when the greater offense charged in the bill of indictment contains all of the essential elements of the lesser, all of which could be proved by proof of the allegations in the indictment. Further, when there is some evidence supporting a lesser included offense, a defendant is entitled to a charge thereon even when there is no specific prayer for such instruction, and error in failing to do so will not be cured by a verdict finding a defendant guilty of a higher degree of the same crime.

Weaver, supra, at 633-34, 295 S.E.2d at 377.

The Weaver Court broke no new ground. It merely restated that a lesser included offense is one in which the greater offense contains all of the essential elements of the lesser offense. Thus, the traditional standard is applicable in the case at bar. Robbery with a dangerous weapon contains all of the essential elements of common law robbery. Thus, common law robbery is a lesser included offense. State v. Swaney, supra; State v. Tarrant, 70 N.C.App. 449, 320 S.E.2d 291 (1984). Consequently, defendant's assignment of error is without merit.

In the trial of defendant's case, we find no error.

No error.

HEDRICK, C.J., and COZORT, J., concur.