STATE of North Carolina
v.
Michael TARRANT.
STATE of North Carolina
v.
Bernard DAVIS.
No. 8326SC1202.
Court of Appeals of North Carolina.
September 18, 1984.*293 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. James E. Magner, Jr., Raleigh, for the State.
Scott T. Pollard and Dozier, Brackett, Miller, Pollard & Murphy by Fritz Y. Mercer, Jr., Charlotte, for defendants-appellants.
EAGLES, Judge.
I
The trial judge submitted two possible verdicts to the jury, guilty of robbery with a dangerous weapon and not guilty. Defendants argue on appeal that the trial court erred in failing to instruct on and to submit as possible verdicts the lesser included offenses of common law robbery and simple assault.
As a general rule, when there is evidence of a defendant's guilt of a crime which is a lesser included offense of the crime stated in the bill of indictment, the defendant is entitled to have the trial judge submit an instruction on the lesser included offense to the jury. State v. Redfern, 291 N.C. 319, 230 S.E.2d 152 (1976). Common law robbery is a lesser included offense of armed robbery or robbery with a firearm *294 or other dangerous weapon and an indictment for armed robbery will support a conviction of common law robbery. State v. Black, 286 N.C. 191, 209 S.E.2d 458 (1974); State v. Allen, 47 N.C.App. 482, 267 S.E.2d 514 (1980). Nevertheless, the trial judge is not required to instruct on common law robbery when the defendant is indicted for armed robbery if the uncontradicted evidence indicates that the robbery, if perpetrated, was accomplished by the use of what appeared to be a dangerous weapon. State v. Porter, 303 N.C. 680, 281 S.E.2d 377 (1980).
The uncontradicted evidence offered by the State from the victim and eyewitnesses tends to show that, for whatever reason, the defendant Tarrant held a knife, which he had taken from the victim, to the victim's throat and had the defendant Davis to go through the victim's pockets. If there was a robbery, it was accomplished while Tarrant was holding a knife to the victim's throat.
Defendants contend that they were committing no crime at this point, that nothing was taken and that the knife was used in self-defense. Nevertheless, a knife was used and we hold that the trial judge was correct in refusing to instruct as to common law robbery.
II
We next consider whether the trial judge erred in refusing to instruct and charge the jury on the crime of simple assault, which is also a lesser included offense of robbery with a dangerous weapon. The necessity for instructing the jury as to a lesser included crime arises only when there is evidence from which the jury could find that the included crime of lesser degree was committed. The presence of evidence is the determinative factor. State v. Hicks, 241 N.C. 156, 159-60, 84 S.E.2d 545, 547 (1954); State v. Allen, supra.
Defendants' evidence tended to show that defendant Tarrant assaulted the victim by pushing and tripping him after the victim insulted him, that the knife was taken from the victim in self-defense and used only to restrain the victim until defendant Davis searched him for other weapons and that nothing was stolen from the victim. There is, at least, conflicting evidence relating to the elements of the crime charged. For this reason it was error for the trial judge not to instruct the jury as to the crime of simple assault.
However, Rule 10(b)(2) of our Appellate Rules of Procedure as amended 10 June 1981 and applicable to cases tried on and after 1 October 1981, requires that a party assigning as error any portion of the jury charge or an omission therefrom make an objection before the jury retires to consider its verdict. There is nothing in the record that indicates an objection was timely made prior to the jury retiring to consider its verdict. Further, defendants failed to identify the omitted instructions and set out their substance immediately following the instructions given as is also required by Rule 10(b)(2). Our Rules of Appellate Procedure are mandatory and failure to follow the rules subjects an appeal to dismissal. Marisco v. Adams, 47 N.C.App. 196, 266 S.E.2d 696 (1980).
III
We next consider whether the trial judge's error in failing to charge on simple assault as a lesser included offense of robbery with a dangerous weapon constituted "plain error." The "plain error" rule is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record it can be said that the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done. The error must have probable impact on the jury's finding of guilt. State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983).
We have carefully reviewed the entire record in this case and we hold that the error in the charge did not have probable impact on the jury's finding of guilt. We reach this conclusion after due consideration of State v. Brown, 300 N.C. 41, 265 *295 S.E.2d 191 (1980) which was decided prior to the Supreme Court's adoption of the current amendment to Rule 10(b)(2), Rules of Appellate Procedure. Here, the State's evidence was more than sufficient to support a conviction for robbery with a dangerous weapon.
On the facts of this case, the trial judge's refusal to charge on the crime of simple assault as a lesser included offense of robbery with a dangerous weapon is not prejudicial error and does not rise to "plain error."
No error.
ARNOLD and WHICHARD, JJ., concur.