State v. Clevinger

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA15-1292

Filed: 6 September 2016

Forsyth County, No. 13 CRS 057326

STATE OF NORTH CAROLINA

v.

DOMINIC IAN CLEVINGER, Defendant.

Appeal by defendant from judgment entered 4 November 2014 by Judge Susan

E. Bray in Forsyth County Superior Court. Heard in the Court of Appeals 25 May

2016.

Attorney General Roy Cooper, by Special Deputy Attorney General Ann W.

Matthews, for the State.

Jarvis John Edgerton, IV for defendant.

ELMORE, Judge.

A jury found Dominic Clevinger (defendant) guilty of robbery with a dangerous

weapon. On appeal, defendant contends that the trial court erred in admitting

prejudicial statements by a detective during defendant’s interrogation, and in failing

to instruct the jury on the elements of common law robbery. We conclude that

defendant received a trial free from prejudicial error.

I. Background

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The State’s evidence at trial tended to show the following: On 11 June 2013,

Crystal Lynn McDade was working as the manager and cashier at the Stanleyville

Business Center (SBC). The SBC was an Internet sweepstakes café where customers

could purchase Internet time to play games and win cash prizes. McDade had

brought her fifteen-year-old daughter, Alyssia Hicks, to work with her that morning.

Around 9:00 a.m., McDade observed a man walk into the SBC to use the

restroom and leave a few seconds later. She thought it was unusual because “he did

not purchase anything” and “did not speak to anyone . . . . We don’t usually have

people [ ] walk off the street to use the restroom.” Around 10:30 a.m., the same man

returned to the SBC and approached McDade at the cashier’s station. He handed her

a twenty-dollar bill and began patting himself down, searching for his driver’s license.

He told McDade that he could not find his license and left to look for it in his car.

The man returned a few seconds later and dropped a plastic Dollar General

bag on the counter in front of McDade. He grabbed Hicks, jerked her head back, and

held a knife to her exposed neck, telling McDade to “put the money in the bag or he

was going to slit [Hicks’] throat.” At trial, Hicks described the knife as “cold and

hard.” McDade testified that she saw the knife but could not recall how big it was.

McDade opened the register and started pulling out money. Before she could put it

into the bag, the man snatched the money and fled the store. Hicks was left with a

red mark on her throat where the knife was held, but she was not bleeding.

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Officers responded to the scene and took a statement from McDade. She

described the suspect as a white male with reddish-brown hair, a slender build, and

freckles on his arms and face. He was wearing a red polo-style shirt and long plaid

shorts. Sergeant Gomez, one of the responding officers, located a red shirt on the side

of the road in a gravel area near the SBC. It was preserved for evidence and sent to

the state crime lab for testing, where Agent Hannan obtained DNA samples from the

shirt. A few days after the robbery, McDade identified defendant in a photographic

line-up as the robbery suspect.

McDade provided Detective Watkins with a series of videos captured that

morning on the SBC’s surveillance cameras. As he watched the videos, Detective

Watkins noticed that, in addition to McDade’s description, the male suspect was

wearing “a low cut shoe” and “had what appeared to be the end of a belt hanging down

the right side of his body that is kind of flapping against his leg as he walked.” He

also noticed that before the male suspect entered the SBC, a woman wearing a

bandana, a t-shirt with writing across the top and a design in the center, and red

Capri pants walked into the SBC to use the restroom and leave. Video surveillance

taken earlier that morning from a nearby Target showed the same woman leaving

the store with a man who matched the physical description of the male robbery

suspect.

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After learning from McDade that the male suspect had used what appeared to

be a new Dollar General bag during the robbery, Detectives Watkins and Olivo went

to a nearby Dollar General to follow up on the lead. When they entered the store,

they noticed a woman in a bright green tank-top checking out at the cash register.

She caught their attention because of the bright color of her shirt, her tattoos, and

her noticeable hairstyle.

The detectives made contact with the assistant manager of the Dollar General

to review the surveillance footage taken earlier that day—approximately one hour

before the robbery. The video showed the same woman in the bright green tank-top

purchasing a three-piece set of chef’s knives and a DVD at 9:09 a.m. One minute

later, a white male walked into the store, stood next to her at the cash register, picked

up the DVD to look at it, and then set it back down. He was wearing a red polo shirt,

long plaid shorts, a belt hanging down the right side of his leg, and otherwise matched

the physical description of the robbery suspect.

After reviewing the surveillance footage, detectives returned to the front of the

store looking for the woman in the green tank-top. The Dollar General cashier,

Tiffany Perdue, informed the detectives that the woman had left, but she had spoken

to Perdue about tattoos while she was in the store and had given Perdue her

telephone number. A reverse search of the number revealed that it belonged to

defendant’s cousin, Krystal Clevinger. Detective Olivo secured an address for Ms.

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Clevinger and her photo. He recognized her as the woman in the green tank-top he

had seen at Dollar General and on the surveillance video.

The detectives went to Ms. Clevinger’s home to ask about her purchase earlier

that day at Dollar General. She produced a three-piece set of chef’s knives, one of

which was missing from the opened package. At that point, Ms. Clevinger agreed to

go with the detectives to the public safety center for an interview. She also consented

to a search of her vehicle, where the detectives found the DVD she had purchased at

Dollar General. The knife set and the DVD packaging were submitted for latent

fingerprint examination.

At trial, the State called Cindy Persinger as a witness, with whom defendant

and his girlfriend had lived several years ago. Persinger recalled that on 10 June

2013, the day before the robbery, defendant came to her house accompanied by an

older woman. Persinger testified that the woman was wearing a bandana, a white t-

shirt, and red Capri pants, and that defendant was wearing a black shirt, plaid

shorts, black hat, and was carrying a red shirt over his shoulder. Defendant told

Persinger that he was in town from Florida for a “quick visit,” and was waiting for

his cousin, Ms. Clevinger, to pick him up. Defendant and the woman waited for about

three hours until they decided to walk. He called Persinger shortly after leaving her

house to tell her that Ms. Clevinger had picked him up as he was walking down the

road. When Detective Watkins interviewed Persinger and showed her still images of

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the male and female suspects in the Target video, she identified them as defendant

and the woman who had been at her house.

Defendant was arrested in Florida in October 2013 on an unrelated charge,

and extradited to North Carolina on 15 December 2013. Detectives obtained a saliva

sample from defendant, which was sent to the state crime lab for testing. A

comparison of the DNA results from the red polo shirt found near the SBC matched

the predominant profile of defendant’s DNA. In addition, defendant’s fingerprints

were identifiable on both the DVD and the set of chef’s knives purchased from Dollar

General on the same day as the robbery.

During a video-taped interrogation, defendant repeatedly denied any

involvement in the robbery. He filed a motion in limine to redact portions of the

interrogation video in which Detective Watkins: (1) expressed his opinion that all of

the evidence “points to [defendant]”; (2) referenced alleged statements by Ms.

Clevinger that defendant had a drug problem; (3) asserted that the “same exact

person” seen in the SBC surveillance video is seen with Ms. Clevinger in surveillance

footage from other stores; (4) opined that it was defendant on the SBC video and

stated that he had “seen the video himself”; (5) referenced alleged statements by Ms.

Clevinger that defendant was with her at the other stores; (6) referenced alleged

statements by Ms. Clevinger that defendant looked thinner than usual because of his

drug use; (7) referenced an alleged statement by Ms. Clevinger that defendant took

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one of the knives she bought at Dollar General; (8) referenced defendant’s prior

arrest; (9) told defendant he had phone records and proof that defendant and Ms.

Clevinger changed their phone numbers after the robbery; (10) alleged that defendant

“called the shit out of [Ms. Clevinger]” while she was being interviewed by law

enforcement; and (11) told defendant that he was “one cold dude.”

In response to defendant’s motion, the State argued that it was not offering the

statements for their truth, but to provide “context to defendant’s responses” and “to

explain how a detective conducts an interview and interview techniques.” Over

defendant’s objections, the trial court admitted the challenged portions of the video

with the following limiting instruction:

THE COURT: Members of the jury, in the exhibit that you

are about to see, Detective Watkins and Olivo interviewed

the defendant, Mr. Clevinger, after he had been arrested.

During the course of the interview it may be that one of the

detectives expresses his opinion that the defendant,

Dominic Clevinger, is the person shown in one or more of

the surveillance videos.

You are not to consider this opinion evidence for the truth

of whether Mr. Clevinger is pictured in the videos. It is

your duty to determine whether the defendant is depicted

in any of the surveillance videos. You may consider any

such statement or opinion only for the impact that opinion

or statement may have had on the defendant as an

interviewing technique by the detectives.

Officers are permitted to employ investigative and

questioning techniques designed to elicit information.

During the course of the interview it may be that the

detective accuses the defendant of being untruthful or lying

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to him. You can consider the detective’s remarks not for

the truth of what the detective is alleging but as an

investigative technique designed to elicit information from

a suspect.

Similarly, if the detective makes any statements to the

defendant about what other people told him or about any

alleged evidence against the defendant or what that

alleged evidence is, you can consider such statements in

the context of interrogation techniques used by law

enforcement officers to secure confessions. You are not to

consider the statements the detective attributes to others

as being made for the truth of those statements because

they were not made under oath and admitted at this trial.

The trial court repeated the instruction at the close of the evidence, at which point it

also instructed the jury on the elements of robbery with a dangerous weapon. The

court declined the State’s request to declare the knife a dangerous weapon as a matter

of law, leaving the question for the jury, and denied defendant’s request for an

instruction on the lesser-included offense of common law robbery.

The jury found defendant guilty of robbery with a dangerous weapon, and he

pled guilty to an aggravating factor of willful violation of probation or parole. The

trial court entered a judgment and commitment in the aggravated range, sentencing

defendant to an active term of 140 to 180 months of imprisonment. Defendant gave

notice of appeal in open court.

II. Discussion

A. Hearsay and Relevance

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Opinion of the Court

First, defendant argues that the trial court erred in admitting the challenged

portions of the video-taped interrogation. Defendant contends that no portion of the

interview was relevant, and that the State’s reasons for admitting the video—to show

the detective’s interrogation techniques and provide context for defendant’s

responses—were a pretext to put before the jury what was otherwise inadmissible

hearsay and improper lay opinion testimony.

“Preserved legal error is reviewed under the harmless error standard of

review.” State v. Lawrence, 365 N.C. 506, 512, 723 S.E.2d 326, 330 (2012) (citing N.C.

Gen. Stat. § 15A-1443 (2009); N.C. R. App. P. 10(a)(1); State v. Bishop, 346 N.C. 365,

385, 488 S.E.2d 769, 779 (1997)). Where, as here, “the error relates to a right not

arising under the United States Constitution, North Carolina harmless error review

requires the defendant to bear the burden of showing prejudice.” Id. at 513, 723

S.E.2d at 331 (citing N.C. Gen. Stat. § 15A-1443(a)). “In such cases the defendant

must show ‘a reasonable possibility that, had the error in question not been

committed, a different result would have been reached at the trial out of which the

appeal arises.’ ” Id. (quoting N.C. Gen. Stat. § 15A-1443(a)).

“Hearsay” is a an out-of-court statement “offered in evidence to prove the truth

of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 801 (2015). “Hearsay is not

admissible except as provided by statute or by [the rules of evidence].” N.C. Gen.

Stat. § 8C-1, Rule 802 (2015). Where an out-of-court statement is offered for a

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purpose other than to prove the truth of the matter asserted, it is not hearsay because

it does not fit the legal definition. State v. Call, 349 N.C. 382, 409, 508 S.E.2d 496,

513 (1998); Long v. Asphalt Paving Co. of Greensboro, 47 N.C. App. 564, 569, 268

S.E.2d 1, 4–5 (1980). To be admissible, however, the statement must still be relevant

to the nonhearsay purpose for which it was offered. See N.C. Gen. Stat. § 8C-1, Rule

402 (2015) (“Evidence which is not relevant is not admissible.”).

“Relevant evidence” is “evidence having any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule

401 (2015). “In order to be relevant, . . . evidence need not bear directly on the

question in issue if it is helpful to understand the conduct of the parties, their

motives, or if it reasonably allows the jury to draw an inference as to a disputed fact.”

State v. Roper, 328 N.C. 337, 356, 402 S.E.2d 600, 611 (1991) (citing State v. Potter,

295 N.C. 126, 132, 244 S.E.2d 397, 401–02 (1978)). While “a trial court’s rulings on

relevancy technically are not discretionary and therefore are not reviewed under the

abuse of discretion standard applicable to Rule 403, such rulings are given great

deference on appeal.” State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228

(1991) (citation omitted), appeal dismissed and disc. review denied, 331 N.C. 290, 416

S.E.2d 398, cert. denied, 506 U.S. 915, 121 L. Ed. 2d 241 (1992).

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This Court has previously addressed the admissibility of statements made by

law enforcement during video-taped interrogations. In State v. Miller, 197 N.C. App.

78, 676 S.E.2d 546 (2009), the defendant argued that “statements attributed to non-

testifying third parties, which were contained in the detectives’ questions, should

have been redacted before the [interrogation] was presented to the jury.” Id. at 85,

676 S.E.2d at 551. We held that the detectives’ questions were relevant to give

context to concessions made by the defendant during the interrogation, and to explain

the defendant’s subsequent conduct in changing his story when confronted with

purported statements of others through the detectives’ questions. Id. at 87, 676

S.E.2d at 552.

Similarly, in State v. Castaneda, 215 N.C. App. 144, 715 S.E.2d 290 (2011), the

defendant moved to redact portions of a transcript from an interrogation in which the

detectives referred to statements from “other witnesses” about events surrounding a

homicide, “as well as portions in which the detectives told [the] defendant that his

version of events was a ‘lie.’ ” Id. at 146, 715 S.E.2d at 292. During his post-arrest

interview, the defendant’s story shifted significantly in response to a detective’s

allegations that the defendant was not being truthful. Id. at 150, 715 S.E.2d at 295.

We held that the statements were admissible to show the effect that they had on the

defendant. Id. More specifically, as “part of an interrogation technique designed to

show [the] defendant that the detectives were aware of the holes and discrepancies

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in his story,” the detectives’ statements were relevant because they yielded

inculpatory responses from the defendant which were “relevant to the murder

charge.” Id. at 150–51, 715 S.E.2d at 295; see also id. at 151, 715 S.E.2d at 295 (“[A]n

interrogator’s comments that he or she believes the suspect is lying are only

admissible to the extent that they provide context to a relevant answer by the

suspect.” (quoting State v. Cordova, 137 Idaho 635, 641, 51 P.3d 449, 455 (Idaho Ct.

App. 2002))).

Finally, in State v. Garcia, 228 N.C. App. 89, 743 S.E.2d 74 (2013), disc. review

denied, 367 N.C. 326, 755 S.E.2d 619 (2014), the defendant initially denied any

knowledge of a homicide during an interview with police. Id. at 98, 743 S.E.2d at 80.

At trial, however, he admitted to killing the victim but claimed he did so in self-

defense. Id. at 99, 743 S.E.2d at 80. We held that the challenged statements made

by the detectives during the interrogation were admissible because the “[d]efendant’s

credibility was a key issue for the jury to decide,” and his willingness “to repeatedly

lie, in spite of [the detective’s] pressuring interrogation techniques, was highly

probative of [the] defendant’s credibility.” Id.

Consistent with its position at trial, the State maintains that Detective

Watkins’ statements were “relevant and admissible, not for the truth of the matter

asserted, but to show the interrogation techniques of the detectives and to provide

context for defendant’s responses.” Its reliance on the above-cited cases, however, is

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misplaced. First, unlike Miller, the evidence was not relevant for the purpose of

placing defendant’s answers in “context” because defendant made no concessions

during the interrogation. Instead, he repeatedly denied any involvement in the

robbery, and we cannot agree with the State that defendant’s denials were

incriminating and, therefore, relevant and admissible. Second, unlike Castaneda, the

evidence was not relevant for the purpose of showing the detective’s interrogation

techniques because defendant’s responses never changed—much less due to any

method used by the detective. And a demonstration of even the most impressive

interrogation tactics, standing alone, would not have “made facts of consequence to

this case more probable or less probable than they would be otherwise.” Miller, 197

N.C. App. at 87, 676 S.E.2d at 552. Finally, although we declined to limit Miller as

allowing an interrogator’s statements to be admitted into evidence “only if they

caused the defendant to concede the truth or change his story,” Garcia, 228 N.C. App.

at 98, 743 S.E.2d at 80, here, unlike Garcia, the evidence was not relevant for the

purpose of impeaching defendant’s credibility because he did not testify at trial.

While we agree with defendant that the statements were not relevant to the

nonhearsay purposes for which they were offered, he has failed to show prejudice to

warrant a new trial. We presume that the jury follows the trial court’s instructions,

State v. Gregory, 340 N.C. 365, 408, 459 S.E.2d 638, 663 (1995) (citation omitted), and

in this case, the court instructed the jury twice that it was not to consider the

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detective’s statements for their truth. Moreover, this was not a situation where the

State relied on the detective’s statements to develop its central theory or build its

case against defendant. Cf. State v. Canady, 355 N.C. 242, 249, 559 S.E.2d 762, 766

(2002) (holding that officer’s testimony received to explain his subsequent actions was

inadmissible hearsay where it went “so far beyond the confines of the instruction”

and the State relied on it “as substantive evidence of the details of the murders and

to imply defendant had given a detailed confession of his alleged crimes”). In fact,

based on the overwhelming evidence against defendant, there appears to have been

no need for the State to publish the video to the jury. Surveillance footage captured

a male suspect matching defendant’s description leaving Target, standing with Ms.

Clevinger at Dollar General as she purchased the knife set, and subsequently

entering the SBC. Persinger identified the male suspect as defendant, whom she had

seen the day before the robbery, and McDade identified defendant as the perpetrator

in a photographic line-up. In addition, the DNA results from the red polo shirt found

near the SBC matched defendant’s DNA profile. Defendant’s fingerprints were also

found on both the DVD and the chef’s knife set purchased from the Dollar General

store. In light of this evidence, we are not convinced there is a reasonable possibility

that without the video, the jury would have reached a different result. Any error in

the admission of the challenged evidence was harmless.

B. Jury Instructions

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Defendant also argues that the trial court erred in failing to submit his

requested instruction for common law robbery. Because the court left it to the jury

to determine if the alleged weapon was a dangerous weapon, defendant contends, it

was also required to submit the lesser-included instruction to the jury.

We review de novo the trial court’s decision regarding its jury instructions.

State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009) (citations omitted).

The trial court must “instruct the jury on all substantial features of a case raised by

the evidence.” State v. Shaw, 322 N.C. 797, 803, 370 S.E.2d 546, 549 (1988). “Failure

to instruct upon all substantive or material features of the crime charged is error.”

State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748 (1989). On the other hand, “a

trial judge should not give instructions to the jury which are not supported by the

evidence produced at the trial.” State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186,

191 (1973), cert. denied, 418 U.S. 905, 41 L. Ed. 2d 1153 (1974).

“An instruction on a lesser-included offense must be given only if the evidence

would permit the jury rationally to find defendant guilty of the lesser offense and to

acquit him of the greater.” State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771

(2002); see also State v. Bailey, 278 N.C. 80, 86, 178 S.E.2d 809, 812 (1971) (“When

there is evidence of defendant’s guilt of common law robbery, it is error for the court

to fail to submit the lesser offense to the jury.” (citations omitted)). If, however, “the

State’s evidence is clear and positive with respect to each element of the offense

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charged and there is no evidence showing the commission of a lesser included offense,

it is not error for the trial judge to refuse to instruct on the lesser offense.” State v.

Hardy, 299 N.C. 445, 456, 263 S.E.2d 711, 718–19 (1980) (citing State v. Alston, 293

N.C. 553, 238 S.E.2d 505 (1977)).

Robbery with a dangerous weapon consists of the following elements: (1) the

unlawful taking or an attempt to take personal property from the person or in the

presence of another (2) by use or threatened use of a firearm or other dangerous

weapon (3) whereby the life of a person is endangered or threatened. N.C. Gen.

Stat. § 14-87(a) (2015). Common law robbery is a lesser-included offense of robbery

with a dangerous weapon. State v. Frazier, 150 N.C. App. 416, 418–19, 562 S.E.2d

910, 913 (2002). The difference between the two offenses is that robbery with a

dangerous weapon is “accomplished by the use or threatened use of a dangerous

weapon whereby the life of a person is endangered or threatened.” Id. (quoting State

v. Peacock, 313 N.C. 554, 562, 330 S.E.2d 190, 195 (1985)).

“A deadly weapon is generally defined as any article, instrument or substance

which is likely to produce death or great bodily harm.” State v. Sturdivant, 304 N.C.

293, 301, 283 S.E.2d 719, 725 (1981) (citations omitted). Relevant here, “the evidence

in each case determines whether a certain kind of knife is properly characterized as

a lethal device as a matter of law or whether its nature and manner of use merely

raises a factual issue about its potential for producing death.” Id. at 301, 283 S.E.2d

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at 726 (citations omitted). “The dangerous or deadly character of a weapon with

which [the] accused was armed in committing a robbery may be established by

circumstantial evidence.” State v. Rowland, 263 N.C. 353, 357, 139 S.E.2d 661, 664

(1965) (citation and internal quotation marks omitted).

In support of his argument, defendant relies on State v. Jackson, 85 N.C. App.

531, 355 S.E.2d 224 (1987), and State v. Brandon, 120 N.C. App. 815, 463 S.E.2d 798

(1995), for the proposition that where the trial court submits to the jury the question

of whether a dangerous weapon was used to commit a robbery, it must also submit

an instruction for common law robbery. That may be the rule when there is evidence

of common law robbery, but as our Supreme Court has held repeatedly, an instruction

for the lesser-included offense is not required when there is no evidence to support it:

The necessity for instructing the jury as to an included

crime of lesser degree than that charged arises when and

only when there is evidence from which the jury could find

that such included crime of lesser degree was committed.

The presence of such evidence is the determinative factor.

Hence, there is no such necessity if the State’s evidence

tends to show a completed robbery and there is no

conflicting evidence relating to elements of the crime

charged. Mere contention that the jury might accept the

State’s evidence in part and might reject it in part will not

suffice.

State v. Hicks, 241 N.C. 156, 159–60, 84 S.E.2d 545, 547 (1954); see Peacock, 313 N.C.

at 564, 330 S.E.2d at 196 (holding that common law robbery instruction was not

required where “all of the State’s uncontradicted evidence, if believed, tend[ed] to

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compel the conclusion that the vase as wielded by defendant, ‘endangered or

threatened’ the victim’s life” and “[t]here was no evidence to support an instruction

on a lesser included offense”); State v. Porter, 303 N.C. 680, 686, 281 S.E.2d 377, 382

(1981) (“As a general rule, when there is evidence of defendant’s guilt of a crime which

is a lesser included offense of the crime stated in the bill of indictment, the defendant

is entitled to have the trial judge submit an instruction on the lesser included offense

to the jury.” (citations omitted)); State v. Lee, 282 N.C. 566, 569, 193 S.E.2d 705, 707

(1973) (“In a prosecution for armed robbery the court is not required to submit the

lesser included offense of common law robbery unless there is evidence of defendant’s

guilt of that crime.”); State v. Richardson, 279 N.C. 621, 627, 185 S.E.2d 102, 107

(1971) (rejecting defendant’s argument that an instruction on common law robbery

was required because “[t]here was no evidence that would warrant or support a

finding that defendant was guilty of a lesser included offense”); State v. Wenrich, 251

N.C. 460, 460, 111 S.E.2d 582, 583 (1959) (“[T]he court should not submit to the jury

an included lesser crime where there is no testimony tending to show that such lesser

offense was committed.”), overruled on other grounds by State v. Hurst, 320 N.C. 589,

359 S.E.2d 776 (1987), overruled by State v. White, 322 N.C. 506, 369 S.E.2d 813

(1988); see also State v. Rowland, 89 N.C. App. 372, 377, 366 S.E.2d 550, 553 (“[T]here

is no requirement to submit the lesser included offense to the jury when there is no

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evidence to sustain a verdict of defendant’s guilt of such lesser offense.” (citations

omitted)), disc. review improvidently allowed, 323 N.C. 619, 374 S.E.2d 116 (1988).

In this case, the circumstantial yet uncontroverted evidence shows that the

knife was the same one missing from a new three-piece set of chef’s knives purchased

hours before the robbery. It also shows that during the robbery, the man identified

as defendant grabbed McDade’s fifteen-year-old daughter, 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 SBC 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. See

State v. Black, 286 N.C. 191, 196, 209 S.E.2d 458, 462 (1974). On the facts of this

case, 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

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Opinion of the Court

of the chef’s knife, or he was not guilty at all. See State v. Fletcher, 264 N.C. 482, 485,

141 S.E.2d 873, 875 (1965); Rowland, 89 N.C. App. at 379, 366 S.E.2d at 554.

III. Conclusion

Defendant received a trial free from prejudicial error. While we agree that the

challenged portions of the interrogation video were not relevant to the nonhearsay

purposes for which they were offered, any error in their admission was harmless in

light of the trial court’s limiting instructions and the overwhelming evidence of

defendant’s guilt. In addition, the trial court did not err in denying defendant’s

request for an instruction on the lesser-included offense of common law robbery

because there was no evidence to support it.

NO PREJUDICIAL ERROR; NO ERROR.

Judges DAVIS and DIETZ concur.

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