{ "id": 8523551, "name": "STATE OF NORTH CAROLINA v. MICHAEL J. THOMPSON", "name_abbreviation": "State v. Thompson", "decision_date": "1980-12-02", "docket_number": "No. 8014SC760", "first_page": "690", "last_page": "693", "citations": [ { "type": "official", "cite": "49 N.C. App. 690" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "255 S.E. 2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "396-98" } ], "opinion_index": 0 }, { "cite": "297 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570297 ], "year": 1979, "pin_cites": [ { "page": "359-62" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0349-01" ] }, { "cite": "84 S.E. 2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1954, "opinion_index": 0 }, { "cite": "241 N.C. 156", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604316 ], "weight": 2, "year": 1954, "pin_cites": [ { "page": "159-60" } ], "opinion_index": 0, "case_paths": [ "/nc/241/0156-01" ] }, { "cite": "265 S.E. 2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "195" } ], "opinion_index": 0 }, { "cite": "300 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559740 ], "year": 1980, "pin_cites": [ { "page": "47" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0041-01" ] }, { "cite": "136 S.E. 2d 595", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "596-97" } ], "opinion_index": 0 }, { "cite": "262 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566138 ], "year": 1964, "pin_cites": [ { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0162-01" ] } ], "analysis": { "cardinality": 385, "char_count": 6907, "ocr_confidence": 0.758, "pagerank": { "raw": 5.676830387708631e-08, "percentile": 0.3566848878062003 }, "sha256": "3f5dc0190f9bec315438900e6848d5aa831974dcd48a98ce1354b2fd2288efc1", "simhash": "1:0bf6402f666ab0fd", "word_count": 1182 }, "last_updated": "2023-07-14T18:45:37.060516+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges VAUGHN and Martin (Robert) concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL J. THOMPSON" ], "opinions": [ { "text": "WELLS, Judge.\nPrior to the trial court\u2019s charge to the jury, defendant submitted a written request for a charge on the lesser included offense of misdemeanor assault. The court denied the request and instructed upon common law robbery only. Defendant assigns error to the court\u2019s refusal to charge on misdemeanor assault, arguing that the evidence warranted such an instruction. We do not agree. Common law robbery is the felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear. State v. Lawrence, 262 N.C. 162, 163, 136 S.E. 2d 595, 596-97 (1964); see also State v. Brown, 300 N.C. 41, 47, 265 S.E. 2d 191, 195 (1980). The crime of common law robbery includes an assault on the person. State v. Hicks, 241 N.C. 156, 84 S.E. 2d 545 (1954). However, as stated in Hicks, 241 N.C. at 159-60, 84 S.E. 2d at 547:\nThe 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\u2019s evidence tends to show a completed robbery and there is no conflicting evidence relating to elements of the crime charged.\nIn the present case State\u2019s evidence tended to show the taking of Earl\u2019s money by defendant against Earl\u2019s will by violent means. State\u2019s evidence was not open to the interpretation that defendant committed only the lesser included offense of assault. Defendant specifically denied assaulting Earl, but admitted taking Earl\u2019s money. On the basis of this evidence the court did not err by failing to instruct the jury on the lesser included offense of misdemeanor assault.\nDefendant has also assigned as error the court\u2019s summarization of his evidence in its charge to the jury that defendant was \u201cflabbergasted\u201d when June Bug began hitting Earl and that on the day following the alleged robbery Earl and his brothers \u201caccosted\u201d defendant but that \u201cstrangely nothing came of it.\u201d Defendant contends that in so charging the jury the trial judge indicated to the jury that he gave little if any weight to defendant\u2019s evidence. We find the statements objected to by defendant to be sufficiently supported by the evidence and not contrary to what defendant contended. Therefore such statements did not constitute an expression of opinion by the court. See State v. Joyner, 297 N.C. 349, 359-62, 255 S.E. 2d 390, 396-98 (1979). Defendant also contends that the trial court expressed an opinion as to the validity of defendant\u2019s defense when it charged on the illegality of collecting a debt by the use of force. Again we find no expression of opinion since the legal issue arose on the evidence. Defendant\u2019s own testimony tended to show that he was attempting to collect a debt owed to him by Earl\u2019s brother at the time of the robbery of Earl.\nIn defendant\u2019s trial we find\nNo error.\nJudges VAUGHN and Martin (Robert) concur.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Attorney General Rufus L. Edmisten, by Special Deputy Attorney General David S. Crump, for the State.", "Pulley, Wainio & Stephens, P.A., by Ronald L. Stephens, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL J. THOMPSON\nNo. 8014SC760\n(Filed 2 December 1980)\n1. Robbery \u00a7 5.4\u2014 common law robbery \u2014 refusal to instruct on assault\nThe trial court in a prosecution for common law robbery did not err in refusing to instruct on the lesser included offense of misdemeanor assault where the State\u2019s evidence tended to show that defendant took the victim\u2019s money by violent means, and defendant admitted taking the victim\u2019s money but denied assaulting him.\n2. Criminal Law \u00a7 114.2\u2014 statement of defendant\u2019s evidence \u2014 no expression of opinion\nThe trial judge in a common law robbery case did not express an opinion on defendant\u2019s evidence when he stated during his summarization of his evidence that defendant was \u201cflabbergasted\u201d when a third person began hitting the victim, and that on the day following the robbery the victim and his brothers \u201caccosted\u201d defendant but that \u201cstrangely nothing came of it,\u201d since the court\u2019s statements were sufficiently supported by the evidence and not contrary to what defendant contended.\n3. Criminal Law \u00a7 114.3\u2014 instructions \u2014 no expression of opinion on defense\nThe trial judge in a common law robbery case did not express an opinion as to the validity of defendant\u2019s defense when he charged on the illegality of collecting a debt by the use of force since defendant\u2019s own testimony tended to show that he was attempting to collect a debt owed to him by the victim\u2019s brother at the time of the incident in question, and the legal issue thus arose on the evidence.\nAPPEAL by defendant from Bailey, Judge. Judgment entered 11 March 1980 in Superior Court, DURHAM County. Heard in the Court of Appeals 12 November 1980.\nDefendant was indicted, tried and convicted for the common law robbery of $115 from the person of Eric C. Earl.\nAt trial, the evidence for the State tended to show that on the night of 23 November 1979 defendant and George \u201cJune Bug\u201d Cleveland were riding around drinking with Eric Earl and some other friends in a friend\u2019s car. Defendant purchased gasoline for the car and beer for the group and subsequently got into an argument with Earl about paying for the gasoline and beer. Earl gave defendant $2.00 and began walking to his mother\u2019s house. Defendant and June Bug followed him, and defendant began feeling in Earl\u2019s pockets. Defendant stated, \u201cGive me your money, man, or June Bug is going to hurt you.\u201d Defendant and June Bug then began beating Earl. They knocked him to the ground and took his money out of his pocket and left. Earl had been paid that afternoon and had approximately $115 in his pocket. Earl and two of his brothers went to defendant\u2019s home the next day and confronted him about the robbery, but defendant said nothing and left.\nDefendant testified that after Earl paid him $2.00, defendant remembered that Earl\u2019s brother owed him $60 for some stereo speakers. He followed Earl across the street to discuss this debt at which time, to defendant\u2019s surprise, June Bug grabbed Earl and began beating him, knocking him to the ground. Defendant was \u201cin shock\u201d and pulled June Bug off of Earl. While lying on the ground Earl pulled $32 from his pocket which defendant picked up. Defendant then left the scene and subsequently gave some of Earl\u2019s money to the other people who had been riding around in the car with them. The following day Earl and two of his brothers approached defendant and told him he was wrong to let June Bug jump on Earl. Defendant did not know what to expect so he just left.\nUpon the jury\u2019s verdict of guilty of common law robbery, defendant was sentenced to a prison term of not less than eight nor more than ten years.\nAttorney General Rufus L. Edmisten, by Special Deputy Attorney General David S. Crump, for the State.\nPulley, Wainio & Stephens, P.A., by Ronald L. Stephens, for defendant appellant." }, "file_name": "0690-01", "first_page_order": 716, "last_page_order": 719 }