NO. COA14-997
NORTH CAROLINA COURT OF APPEALS
Filed: 7 April 2015
STATE OF NORTH CAROLINA
v. Wake County
No. 12CRS228467
JAMAR ISHMEAL WRIGHT
Defendant.
Appeal by Defendant from judgment entered 11 February 2014 by
Judge Henry W. Hight, Jr. in Wake County Superior Court. Heard in
the Court of Appeals 5 February 2015.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General James M. Stanley, Jr., for the State.
Kevin P. Bradley for Defendant-appellant.
DILLON, Judge.
Jamar Ishmeal Wright (“Defendant”) appeals from a conviction
of robbery with a dangerous weapon. For the following reasons, we
find no error in Defendant’s trial.
I. Background
Defendant was indicted for robbery with a dangerous weapon
and other charges arising from an incident which occurred when
allegedly he entered the residence of another and brandished a
gun. Defendant was tried by a jury. At trial, the State offered
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evidence which tended to show as follows: Chanel Brown asked
Michael Kurz to repair her car by buying and installing a new
alternator. She gave him $150.00. However, on the day in
question, Mr. Kurz used the $150.00 to post bond for a crime he
was charged with, planning to replace the money and repair Ms.
Brown’s car the next day. Hours after Mr. Kurz posted bond using
Ms. Brown’s money, Ms. Brown and two others forcibly entered the
home of Mr. Kurz that he shared with his mother in order to get
back Ms. Brown’s money. After some discussion, Ms. Brown left the
Kurz residence only to return soon later with Defendant. Defendant
threatened the Kurzes, pulling out an automatic handgun. Mr. Kurz
told Defendant that he would make arrangements with Ms. Brown for
the next morning, but Defendant responded that Mr. Kurz’ proposal
was unacceptable.
Defendant and the others decided to take a computer belonging
to Mr. Kurz’ mother as “collateral[,]” which was worth
approximately $1,000.00. They informed Mr. Kurz that when he gave
Ms. Brown the $150.00 they would return the computer, “maybe,” and
that he “might get it back[.]” They further threatened to kill
Mr. Kurz and his mother if Mr. Kurz called the police.
The next day police went to Ms. Brown’s apartment, but she
informed them that she and her companions had not taken anything
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from the Kurz residence. However, in fact, Ms. Brown had hidden
the computer from the police. The computer was never returned to
the Kurzes.
Defendant did not present any evidence at trial.
The jury found Defendant guilty of robbery with a dangerous
weapon. The trial court sentenced Defendant to a term of 64 to 89
months of imprisonment. Defendant timely filed a written notice
of appeal.
II. Analysis
Defendant argues on appeal that extortion, a Class F felony,
is a lesser included offense of robbery with a dangerous weapon,
a Class D felony, and that the trial court committed plain error
in failing to instruct the jury on this lesser included offense.
Essentially, Defendant contends that there was evidence from which
a jury could have convicted Defendant of extortion based on the
testimony that Defendant took the computer as collateral and
brandished the gun to coerce Mr. Kurz to refund to Ms. Brown the
$150.00 she had given him. We disagree.
A. Lesser included offense
Defendant argues that “[b]ecause the essential elements of
extortion—obtaining something of value by coercion—are essential
elements of armed robbery, extortion is a lesser included offense
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of robbery with a dangerous weapon.” Defendant further contends
that “[a]rmed robbery refines the elements of extortion by
requiring the coercion to be by use or threatened use of a firearm
or other dangerous weapon, by requiring property to be taken and
not just anything of value, and by requiring intent to deprive the
victim of the property permanently.” As Defendant’s argument
presents a question of law, our standard of review is de novo.
State v. Nickerson, 365 N.C. 279, 281, 715 S.E.2d 845, 846 (2011).
“It is well-settled that the trial court must submit and
instruct the jury on a lesser included offense when . . . there is
evidence from which the jury could find that defendant committed
the lesser included offense.” State v. Porter, 198 N.C. App. 183,
189, 679 S.E.2d 167, 171 (2009) (marks omitted).
Here, we must first determine whether extortion is a lesser
included offense of robbery with a dangerous weapon. In State v.
Weaver, our Supreme Court adopted a “definitional” test rather
than a “factual” test for determining whether one crime is a lesser
included offense of another crime:
We do not agree with the proposition that the
facts of a particular case should determine
whether one crime is a lesser included offense
of another. Rather, the definitions accorded
the crimes determine whether one offense is a
lesser included offense of another crime. In
other words, all of the essential elements of
the lesser crime must also be essential
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elements included in the greater crime. If the
lesser crime has an essential element which is
not completely covered by the greater crime,
it is not a lesser included offense. The
determination is made on a definitional, not
a factual basis.
State v. Weaver, 306 N.C. 629, 635, 295 S.E.2d 375, 378-79 (1982)
(emphasis in original), overruled in part on other grounds by State
v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993). Thus,
the test is whether the essential elements of the lesser crime are
essential elements of the greater crime. If the lesser crime
contains at least one essential element that is not an essential
element of the greater crime, then the lesser crime is not a lesser
included offense.
On the one hand, N.C. Gen. Stat. § 14-118.4 (2012) provides,
in pertinent part, that a person is guilty of extortion if that
person “threatens or communicates a threat or threats to another
with the intention thereby wrongfully to obtain anything of value
or any acquittance, advantage, or immunity . . . .” Although not
defined in the statute, “obtain” means “[t]o succeed in gaining
possession of as the result of planning or endeavor; acquire.”
The American Heritage College Dictionary 943 (3d ed. 1997). “The
definition of extortion in G.S. 14-118.4 covers any threat made
with the intention to wrongfully obtain ‘anything of value or any
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acquittance, advantage, or immunity.’” State v. Greenspan, 92
N.C. App. 563, 567, 374 S.E.2d 884, 886 (1989).
On the other hand, the elements necessary to constitute armed
robbery under this section are: (1) the 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; and (3) whereby the life of a person is
endangered or threatened. N.C. Gen. Stat. § 14-87 (2012).
Both armed robbery and extortion involve a threat. However,
the subject matter of the threat is much broader for the crime of
extortion. Specifically, where armed robbery requires that the
subject matter be personal property which is taken and carried
away, extortion permits obtaining “anything of value or any
acquittance, advantage, or immunity.” See N.C. Gen. Stat. § 14-
118.4. A thing “of value or acquittance, advantage, or immunity”
could involve coercing someone not to file a civil suit or to go
to the police rather than coercing someone to hand over an item of
personal property. Therefore, Defendant’s contention that the
crime of extortion is a lesser included offense of armed robbery
fails the definitional test adopted by our Supreme Court. See
Weaver, 306 N.C. at 635, 295 S.E.2d at 378-79. Accordingly, we
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hold that the trial court did not commit error, much less plain
error, in failing to instruct the jury on the charge of extortion.
NO ERROR.
Judges GEER and STEPHENS concur.