{
  "id": 8527809,
  "name": "STATE OF NORTH CAROLINA v. STANLEY CURTIS WHITAKER",
  "name_abbreviation": "State v. Whitaker",
  "decision_date": "1982-02-02",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges CLARK and BECTON concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. STANLEY CURTIS WHITAKER"
    ],
    "opinions": [
      {
        "text": "WHICHARD, Judge.\nDefendant contends the evidence supported submission to the jury of the charge of assault, a lesser included offense of attempted common law robbery. We agree, and accordingly award a new trial.\nWhen 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 defendant guilty of a higher degree of the same crime.\nState v. Bell, 284 N.C. 416, 419, 200 S.E. 2d 601, 603 (1973); see also State v. Chapman, 49 N.C. App. 103, 270 S.E. 2d 524 (1980). Assault is a lesser included offense of attempted robbery. State v. Duncan, 14 N.C. App. 113, 187 S.E. 2d 353 (1972). The court must charge on the lesser included offense if the evidence is equivocal on the element or elements which would elevate the crime charged to the greater offense. State v. Riera, 276 N.C. 361, 368, 172 S.E. 2d 535, 540 (1970).\nThe State presented evidence that defendant approached the victim as she waited at the door of a friend\u2019s apartment, put a hard object against her back, and stated, \u201c[T]his is a stick-up.\u201d He further told the victim not to say anything and not to fight. The victim offered defendant her car keys and told him they were all she had. Defendant did not take the keys. Rather, he stated, \u201cWe are going to go down to the bushes.\u201d He then took the victim down a flight of stairs. Before they reached the bushes, however, the victim began to scream. Defendant released her, struck her in the face, and ran.\nTo justify failure to charge on assault, the evidence had to establish 1) defendant\u2019s specific intent to commit the crime of common law robbery and 2) a direct but ineffectual act by him toward the commission thereof. See State v. Bailey, 4 N.C. App. 407, 167 S.E. 2d 24 (1969). The State relies on defendant\u2019s statement, \u201cThis is a stick-up,\u201d to prove the specific intent to commit the crime of robbery. Intent must, however, be determined from all the facts and circumstances. Absent direct evidence, specific intent is \u201cordinarily to be proved by facts and circumstances from which it may be inferred and . . . the jury may consider the acts and conduct of the defendant and the general circumstances existing at the time . . . .\u201d State v. Norman, 14 N.C. App. 394, 399, 188 S.E. 2d 667, 670 (1972). See also State v. Evans, 279 N.C. 447, 183 S.E. 2d 540 (1971). The State\u2019s evidence indicated that after stating \u201cThis is a stick-up,\u201d defendant acted inconsistently with an intent to rob the victim. He rejected the victim\u2019s offer of a valuable possession, her car, and did not attempt to obtain any money or other valuables the victim may have possessed. Defendant\u2019s conduct was consistent with intents other than to rob the victim, such as the intent to assault sexually or to kidnap her. The State\u2019s evidence thus presented a jury question as to defendant\u2019s specific intent. It did not establish as the only reasonable interpretation of his conduct an unsuccessful intent to rob. The court thus erred in failing to submit the lesser included offense of assault.\nNew trial.\nJudges CLARK and BECTON concur.",
        "type": "majority",
        "author": "WHICHARD, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General Richard L. Kucharski, for the State.",
      "Malcolm R. Hunter, Jr., Assistant Appellate Defender, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. STANLEY CURTIS WHITAKER\nNo. 8110SC678\n(Filed 2 February 1982)\nRobbery \u00a7 5.4\u2014 common law robbery \u2014failure to instruct on lesser offense of assault error\nThe trial court erred in failing to submit to the jury the charge of assault, a lesser included offense of attempted common law robbery, where the evidence showed the defendant approached the victim, put a hard object against her back, stated \u201cthis is a stick-up,\u201d rejected an offer of her valuables, and stated \u201cwe are going to go down to the bushes.\u201d After stating \u201cthis is a stick-up,\u201d defendant acted inconsistently with an intent to rob the victim.\nAppeal by defendant from Britt, Judge. Judgment entered 4 March 1981 in Superior Court, WAKE County. Heard in the Court of Appeals 8 December 1981.\nDefendant was indicted for attempted armed robbery and kidnapping. At the close of the State\u2019s evidence the court dismissed the charge of attempted armed robbery, and at the close of all the evidence it submitted to the jury the lesser included offense of attempted common law robbery, as well as the kidnapping charge. The jury acquitted on the kidnapping charge and convicted on the attempted common law robbery charge.\nFrom a judgment of imprisonment, defendant appeals.\nAttorney General Edmisten, by Assistant Attorney General Richard L. Kucharski, for the State.\nMalcolm R. Hunter, Jr., Assistant Appellate Defender, for defendant appellant."
  },
  "file_name": "0666-01",
  "first_page_order": 698,
  "last_page_order": 700
}