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An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 3 April 2012
STATE OF NORTH CAROLINA
No. 10 CRS 58673
Appeal by Defendant from judgments dated 23 May 2011 by
Judge Michael R. Morgan in Durham County Superior Court.
in the Court of Appeals 6 March 2012.
Attorney General Roy Cooper, by Assistant Attorney General
Alexandra M. Hightower, for the State.
Parish & Cooke, by James R. Parish, for Defendant.
Defendant Dennis Royster was indicted on one count each of
robbery with a dangerous weapon and assault with a deadly weapon
with intent to kill, inflicting serious injury.
not guilty to the charges and was tried before a jury in Durham
The evidence presented at trial tended to show that
on 8 August 2009, Ulisses Gurgel and Tanya Lake were approached
-2in the street by a man later identified as Royster.
brandished a firearm, instructed Gurgel and Lake to put their
hands in the air, and took Gurgel’s wallet and keys.
During a struggle with Royster, Gurgel was shot
in the abdomen.
Thereafter, Royster “limped away” with his gun.
When police arrived at the scene, they obtained a hat identified
as the assailant’s and which contained Royster’s DNA.
Royster was identified by Lake as her and Gurgel’s assailant.
instructed on potential verdicts of robbery with a dangerous
inflicting serious injury.
The jury returned verdicts finding
Royster guilty of robbery with a dangerous weapon and assault
with a deadly weapon inflicting serious injury.
The trial court
sentenced Royster to 133 to 169 months imprisonment for the
robbery charge and 47 to 66 months imprisonment for the assault
erroneously denied his motion to dismiss the charge of assault
with a deadly weapon because there was insufficient evidence
-3that Royster used a deadly weapon.
This argument is frivolous.
showed that Royster committed the assault with a gun:
Gurgel and Lake testified that Royster brandished a gun; Gurgel
testified that he was injured by a projectile fired from the
hospital; and bullet fragments were found in Gurgel’s torso.
This evidence, taken in the light most favorable to the State,
is clearly sufficient to show that Royster used a deadly weapon.
This is so despite testimony by Gurgel and Lake, who professed
to having very limited experience with firearms, indicating that
the firearm was smaller than the two victims expected a gun to
We conclude that the trial court did not err by denying
Royster’s motion to dismiss.1 See State v. Abshire, 363 N.C. 322,
327-28, 677 S.E.2d 444, 449 (2009) (stating that a motion to
dismiss on the basis of sufficiency of evidence should be denied
if the State’s evidence, taken in the light most favorable to
the State, constitutes substantial evidence in support of each
We note that Royster’s appellate counsel raised a nearly
identical argument regarding the sufficiency of the evidence to
support the robbery with a dangerous weapon charge, but conceded
that issue in the reply brief once he reviewed the State’s trial
evidence “in its entirety,” which he had not done at the time he
filed his principal brief.
For the same reasons he conceded
that issue, Royster’s counsel should have conceded the three
other arguments on appeal.
-4element of the charged offense and that the defendant is the
trial court plainly erred by failing to instruct the jury on the
inflicting serious injury.
A trial court is not
required to instruct the jury on common law robbery when the
defendant is indicted for armed robbery if the uncontradicted
evidence indicates that the robbery was perpetrated by the use
of a dangerous weapon. State v. Porter, 303 N.C. 680, 686-87,
charged with assault with a deadly weapon, a trial court need
not instruct the jury on the lesser included offense of assault
inflicting serious injury where there is uncontradicted evidence
that the assault was perpetrated by the use of a deadly weapon.
See State v. Millsaps, 356 N.C. 556, 562, 572 S.E.2d 767, 772
element of the offense charged and there is no contradictory
evidence relating to any element, no instruction on a lesser
included offense is required.” (quoting State v. Thomas, 353
supra, there is uncontradicted evidence that Royster perpetrated
-5the crimes by use of a firearm.
Accordingly, it was proper for
the trial court not to instruct the jury on the lesser included
offenses urged by Royster.
Royster’s argument is overruled.
Based on the foregoing, we conclude that Royster received a
fair trial, free of error.
Chief Judge MARTIN and Judge HUNTER, ROBERT C. concur.
Report per Rule 30(e).