State v. Haddick

ARNOLD, Judge. Defendant’s first contention that the trial court erred when it refused to instruct the jury on attempted common law robbery is without merit. We have carefully examined the record and the transcript and can find no evidence of the lesser included offense. Defendant admitted on cross-examination that he intended to rob the store and that he intended to frighten the cashier with the shotgun. He admitted also that he pointed the shotgun in her direction. The use of a weapon to frighten or intimidate a robbery victim is the main element of armed robbery. State v. Clemmons, 35 N.C. App. 192, 241 S.E. 2d 116, disc. rev. denied, 294 N.C. 737, 244 S.E. 2d 155 (1978). All of the evidence in this case points to defendant’s intention to do exactly that. There is no contrary evidence and defendant’s contentions that he neither pointed the gun at the cashier’s stomach nor intended to hurt anyone are immaterial. We note further that the evidence was clearly sufficient to support the charge of attempted armed robbery. See State v. Smith, 300 N.C. 71, 265 S.E. 2d 164 (1980). Defendant’s second contention that the court, in instructing the jury on the evidence of defendant’s flight, committed preju [526] dicial error when it phrased the instruction as a contention is likewise without merit. It is clear from the record that the court was merely reciting what the evidence from both sides indisputably showed; the court expressly refrained from stating the State’s contention as to what this evidence meant. The court’s description of the undisputed evidence that defendant fled the scene of the crime as a contention of the State was merely inadvertent, and did not give rise to an obligation to describe the defendant’s contentions about the effects of his alcoholism on his consciousness of guilt. We do not believe that the jury was misled or that the defendant was prejudiced. The error was harmless. See State v. Paige, 272 N.C. 417, 158 S.E. 2d 522 (1968). No error. Chief Judge HEDRICK and Judge PARKER concur.