State v. Chavis

278 N.C.App. 482

863 S.E.2d 225

STATE of North Carolina

v.Shannon Nicole CHAVIS, Defendant.

No. COA20-139

Court of Appeals of North Carolina.

Filed July 20, 2021

Attorney General Joshua H. Stein, by Assistant Attorney General Kenzie M. Rakes, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Aaron Thomas Johnson, for defendant-appellant.

STROUD, Chief Judge.

¶ 1 Defendant appeals judgments for her convictions of robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. Defendant raises several arguments on appeal but after consideration of each issue, we conclude there was no error with these convictions. However, defendant was also found guilty of direct criminal contempt; as to the contempt order and judgment, we reverse.

I. Background

¶ 2 The State's evidence tended to show that in May of 2015 defendant and her boyfriend entered Mr. Jones's home wanting his "gun and pills." Mr. Jones had previously dated defendant's mother. Defendant's boyfriend pinned down Mr. Jones, and they hit him with a stick. Defendant also tased Mr. Jones "two or three times" around the head and neck area. Defendant's boyfriend took Mr. Jones's wallet. As a result of the attack, Mr. Jones had blood coming out of his ear, a knot on his head, and a taser burn. Defendant was indicted for robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. The jury found defendant guilty of both charges; the trial court entered judgments, and defendant appeals.

II. Use of Dangerous Weapon

¶ 3 During her trial defendant moved to dismiss the charges against her without giving any specific reason, and the trial court denied the motion. Defendant first contends that "[t]he trial court erred by denying" her "motion to dismiss because the evidence showed that the taser at issue was not a ‘dangerous weapon[,]’ " an essential element of both robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. See generally State v. Gwynn , 362 N.C. 334, 337, 661 S.E.2d 706, 707-08 (2008) ("Under N.C.G.S. § 14–87(a), the essential elements of robbery with a dangerous weapon are: (1) an 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." (quotation marks and brackets omitted)); see also State v. Lyons , 268 N.C. App. 603, 608, 836 S.E.2d 917, 921 (2019), disc. review denied , 374 N.C. 744, 842 S.E.2d 592 (2020) ("To ultimately convict a defendant of conspiracy, however, the State must prove there was an agreement to perform every element of the underlying offense[.]" (quotation marks and brackets omitted)).

A. Standard of Review

¶ 4 Though defendant did not state the reason for her motion to dismiss, "defendant's simple act of moving to dismiss at the proper time preserved all issues related to the sufficiency of the evidence for appellate review." State v. Golder , 374 N.C. 238, 246, 839 S.E.2d 782, 788 (2020).

When a defendant moves for dismissal, the trial court is to determine whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant's being the perpetrator of the offense. If so, the motion to dismiss is properly denied.

Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. In borderline or close cases, our courts have consistently expressed a preference for submitting issues to the jury, both in reliance on the common sense and fairness of the twelve and to avoid unnecessary appeals.

State v. Rivera , 216 N.C. App. 566, 567-68, 716 S.E.2d 859, 860 (2011) (emphasis added) (citations and quotation marks omitted). Furthermore, "[t]his Court reviews the trial court's denial of a motion to dismiss de novo. Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal." State v. Southerland , 266 N.C. App. 217, 219, 832 S.E.2d 168, 170 (2019) (citation and quotation marks omitted).

B. Analysis

¶ 5 Defendant contends the taser was not a dangerous weapon. In Rivera , an assailant used a stun gun on the victim. Rivera , 216 N.C. App. at 567, 716 S.E.2d at 860. An officer testified during the defendant's trial that "the overall potential for serious physical injury or death from a stun gun is minimal, and the overall potential for serious physical injury or death from a stun gun would be consistent with being struck with a hand or foot." Id. (quotation marks and brackets omitted). The defendant in Rivera moved to dismiss the charge against him, robbery with a dangerous weapon. See id. The trial court denied the motion, and the jury found the defendant guilty of robbery with a dangerous weapon. Id. The defendant appealed, and this Court noted, "The dispositive issue in this case is whether there was sufficient evidence presented at trial to establish that the stun gun was a dangerous weapon that endangered or threatened [the victim's] life." Id. at 568, 716 S.E.2d at 860-61.

¶ 6 This Court explained,

When deciding whether an object is a dangerous weapon, our Supreme Court has stated:

The rules are: (1) When a robbery is committed with what appeared to the victim to be a firearm or other dangerous weapon capable of endangering or threatening the life of the victim and there is no evidence to the contrary, there is a mandatory presumption that the weapon was as it appeared to the victim to be. (2) If there is some evidence that the implement used was not a firearm or other dangerous weapon which could have threatened or endangered the life of the victim, the mandatory presumption disappears leaving only a permissive inference, which permits but does not require the jury to infer that the instrument used was in fact a firearm or other dangerous weapon whereby the victim's life was endangered or threatened. (3) If all the evidence shows the instrument could not have been a firearm or other dangerous weapon capable of threatening or endangering the life of the victim, the armed robbery charge should not be submitted to the jury.

We must look at the circumstances of use to determine whether an instrument is capable of threatening or endangering life.

Id. at 568–69, 716 S.E.2d at 861 (citations and quotation marks omitted).

¶ 7 In Rivera , this Court first determined that a stun gun can be a dangerous weapon. Id. at 569-570, 716 S.E.2d at 861-62. Here, we conclude that a taser is "what appeared to the victim to be a firearm or other dangerous weapon capable of endangering or threatening the life of the victim[.]" Id. at 568, 716 S.E.2d at 861. But since there was "some evidence that the implement used was not a firearm or other dangerous weapon which could have threatened or endangered the life of the victim, the mandatory presumption disappears leaving only a permissive inference, which permits but does not require the jury to infer that the instrument used was in fact a firearm or other dangerous weapon whereby the victim's life was endangered or threatened." Id. at 571, 716 S.E.2d at 862.

Further, in this case, the trial court instructed the jury it should determine whether a taser was a dangerous weapon, and thus we turn to the second rule described in Rivera "which permits but does not require the jury to infer that the instrument used was in fact a firearm or other dangerous weapon whereby the victim's life was endangered or threatened." Id. at 569, 716 S.E.2d at 861.

¶ 8 Rivera notes that "our courts have consistently held that an object can be considered a dangerous or deadly weapon based on the manner in which it was used even if the instrument is not considered dangerous per se and the weapon does not cause death or a life threatening injury." Id. at 571, 716 S.E.2d at 862. In Rivera , the victim "suffered significant pain from the shock, fell, and injured her rotator cuff. She endured two surgeries and extensive physical therapy. Two years after the robbery, Scott was still experiencing pain and a limited range of motion in her left arm." Id. at 570, 716 S.E.2d at 86. In fact, as noted in Rivera, "in State v. Gay , 151 N.C. App. 530, 566 S.E.2d 121 (2002), a stun gun was deemed as a dangerous weapon where the defendant did not actually use the stun feature but instead placed it against the victim's neck in order to take her backpack. Id. at 570, 716 S.E.2d at 861-82.

¶ 9 Here, the evidence regarding the manner of use of the taser would permit the jury to find it was a dangerous weapon. After the attack, Mr. Jones was bleeding from his ear, had a knot on his head, and had a taser burn. Defendant argues that the bleeding and head injury were caused by her boyfriend "punching Mr. Jones or hitting him with the walking stick[,]" but defendant used the taser as Mr. Jones was being beaten and held by her boyfriend when he removed Mr. Jones's wallet from his pocket. In other words, defendant incapacitated, with the taser, Mr. Jones while he was being beaten, including on his head, to ensure he could not defend himself. The jury could conclude the taser was used as a deadly weapon. Accordingly, the trial court did not err in denying defendant's motion to dismiss. This argument is overruled.

III. Judicial Opinion

¶ 10 Defendant next contends that the trial court violated North Carolina General Statutes §§ 15A-1222 and -1232 by expressing the opinion that a taser was a dangerous weapon in its instructions to the jury. Defendant failed to raise this before the trial court but citing State v. Johnson , 253 N.C. App. 337, 801 S.E.2d 123 (2017), contends because it was a statutory violation it is preserved on appeal without objection and reviewable de novo. We agree. See generally id. at 345, 801 S.E.2d at 128 ("When a trial court acts contrary to a statutory...