{ "id": 8560781, "name": "STATE OF NORTH CAROLINA v. STANLEY CURTIS WHITAKER", "name_abbreviation": "State v. Whitaker", "decision_date": "1982-11-03", "docket_number": "No. 105PA82", "first_page": "115", "last_page": "119", "citations": [ { "type": "official", "cite": "307 N.C. 115" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "286 S.E. 2d 640", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": -1 }, { "cite": "55 N.C. App. 666", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527809 ], "year": 1982, "opinion_index": -1, "case_paths": [ "/nc-app/55/0666-01" ] }, { "cite": "172 S.E. 2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "540" } ], "opinion_index": 0 }, { "cite": "276 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561421 ], "year": 1970, "pin_cites": [ { "page": "368" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0361-01" ] }, { "cite": "187 S.E. 2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "14 N.C. App. 113", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547088 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/14/0113-01" ] }, { "cite": "49 S.E. 2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "pin_cites": [ { "parenthetical": "defining elements of common law robbery" } ], "opinion_index": 0 }, { "cite": "229 N.C. 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12165305 ], "year": 1948, "pin_cites": [ { "parenthetical": "defining elements of common law robbery" } ], "opinion_index": 0, "case_paths": [ "/nc/229/0229-01" ] }, { "cite": "52 S.E. 2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "pin_cites": [ { "parenthetical": "defining elements of attempt" } ], "opinion_index": 0 }, { "cite": "230 N.C. 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629576 ], "year": 1949, "pin_cites": [ { "parenthetical": "defining elements of attempt" } ], "opinion_index": 0, "case_paths": [ "/nc/230/0272-01" ] }, { "cite": "167 S.E. 2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "parenthetical": "citing State v. Surles, 230 N.C. 272, 52 S.E. 2d 880 (1949) (defining elements of attempt), and State v. Lunsford, 229 N.C. 229, 49 S.E. 2d 410 (1948) (defining elements of common law robbery)" } ], "opinion_index": 0 }, { "cite": "4 N.C. App. 407", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553792 ], "year": 1969, "pin_cites": [ { "parenthetical": "citing State v. Surles, 230 N.C. 272, 52 S.E. 2d 880 (1949) (defining elements of attempt), and State v. Lunsford, 229 N.C. 229, 49 S.E. 2d 410 (1948) (defining elements of common law robbery)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/4/0407-01" ] } ], "analysis": { "cardinality": 517, "char_count": 9918, "ocr_confidence": 0.832, "pagerank": { "raw": 1.6072339709989357e-07, "percentile": 0.6849459176963599 }, "sha256": "a21d32f288e9fe850c7d950416204b2455f88ce2bd8ff6fe046b7b6b692c566a", "simhash": "1:6534d0af6124b4d4", "word_count": 1716 }, "last_updated": "2023-07-14T20:07:32.557624+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. STANLEY CURTIS WHITAKER" ], "opinions": [ { "text": "EXUM, Justice.\nThe sole question in this appeal is whether the trial court erred in failing to submit to the jury the crime of assault as a lesser included offense of attempted common law robbery. The Court of Appeals believed it did and ordered a new trial. We conclude that even if an assault is a lesser included offense of attempted common law robbery, a point we do not decide, the evidence does not justify submission of it to the jury. We reverse.\nDefendant was tried on two indictments. One charged him with kidnapping Jo Ellen Inman by removing her from one place to another for the purpose of facilitating the commission of the felony of armed robbery. The other charged him with attempted armed robbery of Ms. Inman.\nThe state\u2019s evidence at trial tended to show the following:\nThe principal witness for the state was Jo Ellen Inman, the victim. She testified that on 20 September 1980 she went to a friend\u2019s apartment near North Carolina State University in Raleigh about midnight. She knocked on the apartment door but there was no answer. There was a light above the door and a street lamp to the side of the apartment. While she waited for her friend to answer, she saw a young black man walking along the sidewalk. She asked the man if he knew if anyone was at home; he responded, \u201cHunh?\u201d\nSuddenly the man jumped toward her, grabbed her around the waist, and shoved a \u201chard object\u201d into her rib cage. He told her, \u201c[T]his is a stick up,\u201d and not to say anything or fight. She held up her car keys and told him that was all she had. The man did not take the keys; instead, he told her they were going down to the bushes. He began pulling her down the steps but she held onto the rail and pushed against him. Before they got to the bushes she kicked him in the thigh, causing him to jump back and loosen his grip. She began screaming and he reacted by backing away. He then hit her in the face and \u201ctook off running.\u201d\nMs. Inman did not believe the object with which the man threatened her was a knife, although he told her it was. He pressed it against her so hard that she believed if it had actually been a knife it would have cut through her clothing into her body. Instead, it left a bruise about one-and-one-half inches long by one-half inch wide. She also suffered swelling of the forehead and a black eye from the blow to her head.\nA neighbor who heard her screams came out to check on her. He did not see her attacker but called police officers and relayed a description of the attacker and Ms. Inman\u2019s statement that a man tried to rape her. She identified defendant as her attacker less than an hour later at a \u201cshow up\u201d in a restaurant parking lot. She also made a voice identification at the police station a short time later.\nDefendant testified in his defense, offering evidence of an alibi.\nIn the robbery case Judge Britt submitted to the jury only the offense of attempted common law robbery, instructing the jury that it could find defendant guilty of that offense or not guilty. Judge Britt submitted the kidnapping case to the jury on the theory as charged that the removal of the victim was for the purpose \u201cof facilitating his [defendant\u2019s] commission of common law robbery,\u201d instructing the jury that it could find defendant guilty of that offense or not guilty.\nThe jury returned verdicts of guilty of attempted common law robbery and not guilty of kidnapping.\nDefendant contends, and the Court of Appeals agreed, that Judge Britt erred in the robbery case by not instructing the jury on the offense of assault. Defendant and the Court of Appeals reason as follows: Attempted common law robbery consists of (1) defendant\u2019s specific intent to commit the crime of common law robbery, and (2) a direct but ineffectual act by defendant leading toward the commission of this crime. See State v. Bailey, 4 N.C. App. 407, 167 S.E. 2d 24 (1969) (citing State v. Surles, 230 N.C. 272, 52 S.E. 2d 880 (1949) (defining elements of attempt), and State v. Lunsford, 229 N.C. 229, 49 S.E. 2d 410 (1948) (defining elements of common law robbery)). Assault is a lesser included offense of attempted robbery. State v. Duncan, 14 N.C. App. 113, 187 S.E. 2d 353 (1972). The trial judge must charge on a lesser included offense if: (1) the evidence is equivocal on an element of the greater offense so that the jury could reasonably find either the existence or the nonexistence of this element; and (2) absent this element only a conviction of the lesser included offense would be justified. State v. Riera, 276 N.C. 361, 368, 172 S.E. 2d 535, 540 (1970). Since defendant in the instant case refused to take the victim\u2019s car keys but, instead, told her they were going down into the bushes and attempted to pull her down the steps, he could have had the intent to commit a crime other than robbery, e.g., kidnapping, rape or some other kind of sexual assault. Thus, the state\u2019s evidence that defendant intended to commit common law robbery is at best equivocal so that the jury could reasonably find that defendant lacked this intent. Therefore assault should have been submitted to the jury as a lesser included offense of common law robbery.\nAssuming, without deciding, that assault is a lesser included offense of attempted common law robbery, we nevertheless disagree with the proposition that the state\u2019s evidence on defendant\u2019s intent to commit common law robbery is equivocal. Although it may never be possible to determine with absolute certainty someone\u2019s intent, a particular combination of speech and action may constitute such overwhelming evidence that the one who speaks and acts is motivated by a specific intent that no other conclusion is reasonable. Here the uncontradicted evidence is that Ms. Inman\u2019s assailant grabbed her and said, \u201c[T]his is a stick up.\u201d She offered him her car keys, declaring they were all she had. Defendant refused to take them. At this point, if the state\u2019s evidence is believed, the offense of attempted common law robbery was complete and the state\u2019s evidence that defendant intended to rob Ms. Inman is overwhelming and unequivocal.\nWhen Ms. Inman said, \u201c[A]ll I have are my car keys,\u201d defendant began to pull her down the steps saying, \u201c[W]e are going down to the bushes.\u201d We agree with the state that this conduct is perfectly consistent with Ms. Inman\u2019s assailant\u2019s intent to rob. It is reasonable to infer that, not wanting the car keys, he was attempting to get Ms. Inman in a more secluded spot to determine whether, indeed, she had other property susceptible to being taken. Even if, as defendant argues and the Court of Appeals concluded, defendant\u2019s actions in trying to take Ms. Inman into the bushes give rise to a reasonable inference that he intended to commit some sexual assault upon her, they do not constitute evidence requiring the submission of a lesser included offense for two reasons. First, if Ms. Inman\u2019s assailant did intend to commit a sexual assault when he first accosted her, he may have committed the crimes of attempted second degree rape or attempted second degree sexual offense, different but not lesser included offenses of attempted robbery. Second, the only reasonable inference to be drawn from the evidence is that if Ms. Inman\u2019s assailant did form an intent to sexually assault her, it arose only after his attempt to rob her was complete, and constituted an offense separate from the attempted robbery but not included in it.\nIt was not error, therefore, to fail to submit assault as a lesser included offense of attempted common law robbery. The judgment and verdict of the trial court are, therefore, reinstated and the decision of the Court of Appeals awarding a new trial is\nReversed.\n. We reiterate that defendant was charged with kidnapping but was acquitted of that offense.", "type": "majority", "author": "EXUM, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Richard L. Kuchar-ski Assistant Attorney General, for the plaintiff appellant.", "Adam Stein, Appellate Defender, by Malcolm R. Hunter, Jr., Assistant Appellate Defender, for defendant appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. STANLEY CURTIS WHITAKER\nNo. 105PA82\n(Filed 3 November 1982)\nRobbery \u00a7 5.4\u2014 common law robbery \u2014 failure to instruct on lesser offense of assault \u2014 no error\nThe trial court did not err in failing to submit assault as a lesser included offense of attempted common law robbery where the evidence tended to show that the victim\u2019s assailant grabbed her and said \u201c[t]his is a stickup\u201d; that she offered him her car keys, declaring they were all she had, and that defendant refused to take them. If this evidence is believed, the offense of attempted common law robbery was complete and the State\u2019s evidence that defendant intended to rob the victim was overwhelming and unequivocable. Even if defendant\u2019s actions in trying to take the victim into the bushes, after the above exchange, gave rise to a reasonable inference that he intended to commit some sexual assault upon her, they did not constitute evidence requiring the submission of lesser included offense for two reasons: (1) If defendant did intend to commit a sexual assault when he first accosted her, he may have committed crimes different from but not lesser included offenses of attempted robbery. (2) If defendant did form an intent to sexually assault her, it arose only after his attempt to rob her was complete, and constituted an offense separate from the attempted robbery but not included in it.\nBEFORE Judge Samuel E. Britt and a jury at the 2 March 1981 Session of WAKE Superior Court, defendant was convicted of attempted common law robbery. He was sentenced to a maximum term of three years\u2019 imprisonment as a committed youthful offender. The Court of Appeals ordered a new trial in an opinion written by Judge Whichard and joined by Judges Clark and Bec-ton. 55 N.C. App. 666, 286 S.E. 2d 640 (1982). This Court granted the state\u2019s petition for discretionary review under G.S. 7A-31(a) on 4 May 1982.\nRufus L. Edmisten, Attorney General, by Richard L. Kuchar-ski Assistant Attorney General, for the plaintiff appellant.\nAdam Stein, Appellate Defender, by Malcolm R. Hunter, Jr., Assistant Appellate Defender, for defendant appellee." }, "file_name": "0115-01", "first_page_order": 143, "last_page_order": 147 }