{
  "id": 8525811,
  "name": "STATE OF NORTH CAROLINA v. ROBERT GLENN JOYNER",
  "name_abbreviation": "State v. Joyner",
  "decision_date": "1984-03-06",
  "docket_number": "No. 833SC798",
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  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judge HEDRICK concurs.",
      "Judge EAGLES dissents.",
      "Judge Eagles dissenting."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. ROBERT GLENN JOYNER"
    ],
    "opinions": [
      {
        "text": "HILL, Judge.\nDefendant contends that the trial court erred in denying defendant\u2019s motion for a directed verdict at the close of the State\u2019s evidence. Defendant argues that since the rifle was found unloaded and missing a firing pin, the State failed to prove the rifle allegedly used in the commission of the robbery was a firearm. We hold that defendant\u2019s evidence did not preclude the finding that defendant perpetrated a robbery with a firearm.\nDefendant was convicted of armed robbery in violation of G.S. 14-87(a) which provides in pertinent part as follows:\nAny person . . . 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 . . . shall be guilty of a Class D felony.\nIn determining whether a particular instrument constitutes evidence of use of \u201cany firearms or other dangerous weapon, implement or means\u201d within the prohibition of G.S. 14-87, \u201cthe determinative question is whether the evidence was sufficient to support a jury finding that a person\u2019s life was in fact endangered or threatened.\u201d State v. Alston, 305 N.C. 647, 650, 290 S.E. 2d 614, 616 (1982). We feel that under the circumstances of the instant case, the purpose of G.S. 14-87(a) would be frustrated or defeated if we accepted defendant\u2019s contention that in the absence of a firing pin, a rifle is not a firearm under the statute. The robbery victim should not have to force such issues of whether the instrument actually possesses a firing pin, whether the instrument is loaded, or whether the instrument is real. See State v. Thompson, 297 N.C. 285, 254 S.E. 2d 526 (1979).\nThe evidence in the instant case established that the rifle was unloaded and missing a firing pin several hours after the robbery. It is still possible that the gun was loaded and operable at the time of the robbery, as defendant could have unloaded it and disengaged its firing pin after committing the offense. Furthermore, the weapon was an actual rifle and was held close to the victim\u2019s head; it could have been used as a bludgeon. Using the determinative test of State v. Alston, supra, we find that an employee\u2019s testimony that an actual rifle was pointed at his head during the robbery was sufficient to support a jury finding that the lives of the employees were in fact endangered or threatened by use of the rifle. Defendant\u2019s evidence, on the other hand, that the weapon possibly was unloaded and incapable of firing due to a missing firing pin indicated that the employees\u2019 lives were not endangered or threatened by use of the rifle. Defendant\u2019s evidence tended to prove the absence of an element of the offense charged and required the submission of the case to the jury on the lesser included offense of common law robbery as well as the greater offense of robbery with firearms or other dangerous implements. State v. Bailey, 278 N.C. 80, 178 S.E. 2d 809 (1971), cert. denied, 409 U.S. 948, 34 L.Ed. 2d 218, 93 S.Ct. 293 (1972). The trial court correctly submitted both issues to the jury. This assignment of error is overruled.\nLastly, defendant contends the trial court erred in instructing the jury by failing to define \u201cfirearm\u201d and by substituting the phrase \u201ctwenty-two caliber rifle\u201d for \u201cfirearm\u201d in its final mandate to the jury. By failing to object to the charge prior to the retiring of the jury and before the verdict, defendant failed to adhere to the dictates of Appellate Rule 10(b)(2). Nevertheless, having reviewed the instruction, we hold that the challenged jury instruction was not \u201cplain error\u201d such as to require a new trial. Permitting the jury to consider possible verdicts of guilty of robbery with firearms or other dangerous weapons and the lesser included offense of common law robbery, properly defining the elements of both offenses, and recapitulating the contentions of both parties rendered the charge as a whole adequate. A trial court\u2019s instructions must be read contextually as a whole, and isolated erroneous portions will not be considered prejudicial error on appeal when the instruction read as a whole is correct. See State v. Lee, 277 N.C. 205, 176 S.E. 2d 765 (1970); State v. McCall, 31 N.C. App. 543, 230 S.E. 2d 195 (1976).\nDefendant received a fair trial free from prejudicial error.\nNo error.\nJudge HEDRICK concurs.\nJudge EAGLES dissents.\nJudge Eagles dissenting.\nI respectfully dissent from the portions of the majority opinion which permit a defendant to be convicted of robbery with a firearm or other dangerous weapon when the \u201cfirearm\u201d in question was a rifle which was incapable of firing because it had no firing pin. The majority cites and relies upon State v. Thompson, 297 N.C. 285, 254 S.E. 2d 526 (1979), and State v. Alston, 305 N.C. 647, 290 S.E. 2d 614 (1982), neither of which require this result.\nState v. Thompson stands for the proposition that:\n[W]hen the State offers evidence in an armed robbery case that the robbery was attempted or accomplished by use of what appeared to the victim to be a firearm or other dangerous weapon, evidence elicited on cross-examination that the witness or witnesses could not positively testify that the instrument used was in fact a firearm or dangerous weapon is not of sufficient probative value to warrant submission of the lesser included offense of common law robbery. When a person perpetrates a robbery by brandishing an instrument which appears to be a firearm, or other dangerous weapon, in the absence of evidence to the contrary, the law will presume the instrument to be what his conduct represents it to be \u2014a firearm or dangerous weapon.\n297 N.C. at 289, 254 S.E. 2d at 528 (emphasis added). Here, as distinguished from Thompson, there was evidence to the contrary, i.e., testimony from the defendant and from the officers who seized the weapon that it contained no firing pin, that it was not capable of being fired, and that the firing pin removal process for this weapon was an intricate procedure which involved \u201cstripping\u201d the weapon.\nThe logic of State v. Alston, cited by the majority, is that a BB rifle, no matter what it looked like to the victims, was not a firearm or dangerous weapon in the sense contemplated by G.S. 14-87, because the victim\u2019s \u201clife was (not) in fact endangered or threatened.\u201d 305 N.C. at 650, 290 S.E. 2d at 616. Here, as in Alston, there was affirmative evidence that this rifle was the one used, that it had no firing pin, that it could not be fired in that condition, and that the technique for removal of the firing pin was intricate and required \u201cstripping\u201d the weapon. From these facts it is clear that the rifle without a firing pin could not in fact endanger or threaten the life of the victim. While defendant here intended for the victim to believe mistakenly that the weapon was fully operable, the fact remains that it was less capable of use as a rifle than the BB rifle used in Alston.\nI would vote to reverse the conviction for failure of the court to instruct the jury as requested on the definition of a firearm and the failure to instruct the jury as to the offense of common law robbery.",
        "type": "majority",
        "author": "HILL, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Rufus L. Edmisten by Assistant Attorney General Charles M. Hensey for the State.",
      "Assistant Public Defender Robert L. Shoffner, Jr. for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ROBERT GLENN JOYNER\nNo. 833SC798\n(Filed 6 March 1984)\n1. Robbery \u00a7 4.3\u2014 rifle without firing pin \u2014 use of firearm\nDefendant\u2019s evidence that a rifle used in a robbery was found unloaded and without a firing pin several hours after the robbery did not preclude a finding that defendant perpetrated the robbery with a firearm but did require the trial court to submit the lesser included offense of common law robbery. G.S. 14-87(a).\n2. Criminal Law \u00a7 163\u2014 failure to object to charge \u2014 no \u201cplain error\u201d\nThe trial court\u2019s failure in an armed robbery case to define \u201cfirearm\u201d and the court\u2019s use of \u201ctwenty-two caliber rifle\u201d for \u201cfirearm\u201d in its final mandate to the jury did not constitute \u201cplain error\u201d requiring a new trial although defendant failed to object to the charge prior to the retirement of the jury. App. Rule 10(b)(2).\nJudge Eagles dissenting.\nAPPEAL by defendant from Lewis, Judge. Judgment entered 1 March 1983 in Superior Court, PlTT County. Heard in the Court of Appeals 7 February 1984.\nDefendant was charged in a bill of indictment with armed robbery in violation of 6.S. 14-87. He entered a plea of not guilty.\nThe State\u2019s evidence tended to show that on 7 December 1982 at about 2:45 a.m., defendant, armed with a rifle, approached three employees of Domino\u2019s Pizza as they were closing for the night. Defendant pointed the rifle at the head of one of the employees and demanded the money bag he was carrying under his arm. The employee threw the bag on the ground and ran. Defendant picked up the bag and left the scene of the crime.\nDefendant admitted to police officers that he robbed Domino\u2019s Pizza, and told the police where he hid the rifle he had used. The rifle was not loaded when the police found it, nor did it have a firing pin.\nDefendant did not testify. The jury returned a verdict of guilty as charged, and defendant appealed from judgment imposing a sentence of fourteen years.\nAttorney General Rufus L. Edmisten by Assistant Attorney General Charles M. Hensey for the State.\nAssistant Public Defender Robert L. Shoffner, Jr. for defendant appellant."
  },
  "file_name": "0134-01",
  "first_page_order": 166,
  "last_page_order": 170
}
