IN THE SUPREME COURT OF NORTH CAROLINA

No. 233PA16

Filed 29 September 2017

STATE OF NORTH CAROLINA

v.

ALONZO ANTONIO MURRELL

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous, 

unpublished decision of the Court of Appeals, ___ N.C. App. ___, ___ S.E.2d ___ (2016), 

arresting a judgment entered on 15 May 2015 by Judge John E. Nobles, Jr., in 

Superior Court, Onslow County, and remanding for resentencing. Heard in the 

Supreme Court on 10 April 2017.

Joshua H. Stein, Attorney General, by Oliver G. Wheeler, IV, Assistant Attorney 

General, for the State-appellant.

Glenn Gerding, Appellate Defender, by Daniel L. Spiegel, Assistant Appellate 

Defender, for defendant-appellee.

ERVIN, Justice.

The issue before us in this case is whether an indictment returned for the 

purpose of charging defendant with the offense of robbery with a dangerous weapon

sufficed to give the trial court jurisdiction to enter judgment against defendant based 

upon his conviction for having committed that offense. After careful consideration of 

the record in light of the applicable law, we hold that the challenged indictment was 

fatally defective because it did not sufficiently allege all of the essential elements of
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Opinion of the Court

-2-

the offense of robbery with a dangerous weapon and, for that reason, affirm the Court 

of Appeals’ decision.

At 11:45 a.m. on 13 September 2013, Stacy Phillips, a teller at a PNC Bank 

branch located in Jacksonville, was the victim of a robbery. At that time, a man 

entered the bank and laid a note on the counter in front of Ms. Phillips. “[T]he first 

thing [Ms. Phillips] saw on [the note] was ‘armed,’ ” which led her to believe that a 

robbery was in progress. More specifically, the note that the man placed before Ms. 

Phillips read “armed” and instructed, “eyes down, 2,000 — or two straps of hundreds, 

two straps of fifties, two straps of twenties, no devices.” In spite of the fact that the 

only item that she saw in the robber’s possession was a case that he carried under his 

arm, Ms. Phillips believed that the robber was armed based upon the information 

contained in the note that he presented to her.

Although Ms. Phillips attempted to grab the note, the robber said, “Don’t touch 

it.” At that point, Ms. Phillips gave the robber a bait strap, which included $330 in

marked bills; some additional $20, $50, and $100 bills; and a dye pack, all of which 

the robber placed in the case. As the robber reached the door and began to leave the 

bank, Ms. Phillips activated a silent alarm and complied with PNC’s robbery protocol

by calling the police, locking the facility’s doors, preparing an account of what she had

experienced, and providing assistance to the other persons present at the time of the 

robbery.
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Detective Gary Manning of the Jacksonville Police Department, accompanied 

by several other officers, arrived at the bank shortly after the robbery. After securing 

the crime scene and obtaining information from other witnesses, Detective Manning

viewed surveillance video footage related to the robbery. As he did so, Detective 

Manning observed that a “red bloom . . . emanat[ed] from the . . . front passenger area 

of the vehicle” apparently used by the robber to facilitate his escape. According to

Karen Salefsky, the bank manager, the “red bloom” that could be seen in the 

surveillance video resulted from the explosion of the dye pack contained in the bait 

strap.

On the following day, Detective Manning received a call from an individual

who “had found money in a dumpster in Phoenix Park Apartments.” While searching

the dumpster, Detective Manning retrieved money “stained with a bright red” dye

“consistent with the manner in which a dye pack is prepared.” In addition, Detective 

Manning determined that the serial numbers of the currency retrieved from the 

dumpster matched those printed on the currency taken during the robbery.

On 23 September 2013, Crime Stoppers received a tip identifying the suspect

depicted in the surveillance footage, which had been released to the public, as 

defendant, a resident of Kinston. After noticing “a striking resemblance between 

photographs . . . of [defendant] and the person depicted in the surveillance footage,” 

Detective Manning began to investigate defendant’s possible connection to the 

robbery. Detective Manning learned that defendant had access to a vehicle 
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Opinion of the Court

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resembling the one shown in the surveillance video footage, which was a black Suzuki 

XL7 that was registered to defendant’s girlfriend, Heather Crider. On 4 October 

2013, Ms. Crider’s Suzuki XL7 was located in downtown Kinston. While searching 

the vehicle with Ms. Crider’s consent, Detective Manning observed red smudges on 

the vehicle’s exterior consistent with those that would have been made during the 

release of the dye pack contained in the bait strap.

At the time that he was arrested in Kinston on 11 October 2013, defendant 

possessed a duffle bag that contained, among other things, a green bed sheet stained 

with red material that was consistent with the color of certain stains found in the 

dumpster and on the exterior of Ms. Crider’s Suzuki XL7. After waiving his Miranda

rights, defendant admitted that he had robbed the Jacksonville PNC Bank and gave 

an account of that episode consistent with the information that Detective Manning

developed during his investigation. Although defendant told Detective Manning that 

he had been “provided” with a “pee shooter,” which Detective Manning “took to mean 

a small caliber pistol,” before entering the PNC Bank, investigating officers never 

recovered it or any other weapon believed to have been used during the robbery.

On 12 August 2014, the Onslow County grand jury returned a bill of indictment

that was intended to charge defendant with robbery with a dangerous weapon. The

indictment alleged, in pertinent part, that:

defendant [ ] unlawfully, willfully and feloniously did steal, 

take and carry away another’s personal property, U.S. 

Money from PNC Financial Services Group, Inc., at the 
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Opinion of the Court

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location of “PNC Bank” . . . when a bank employee, Stacy 

Phillips was present. The defendant committed this act by 

way of it reasonably appearing to the victim Stacy Phillips 

that a dangerous weapon was in the defendant’s 

possession, being used and threatened to be used by 

communicating that he was armed to her in a note with 

demands and instructions for her to complete, whereby the 

life of Stacy Phillips was threatened and endangered.

The charges against defendant came on for trial before the trial court and a jury at 

the 11 May 2015 criminal session of the Superior Court, Onslow County. On 15 May 

2015, the jury returned a verdict convicting defendant as charged. Based upon the 

jury’s verdict, the trial court entered a judgment sentencing defendant to a term of

fifty-three to seventy-six months imprisonment. Defendant noted an appeal from the 

trial court’s judgment to the Court of Appeals.

In seeking relief from the trial court’s judgment before the Court of Appeals, 

defendant argued, among other things, that the trial court had erred by failing to 

dismiss the indictment returned against him in this case on the grounds that it failed 

to properly charge him with the commission of robbery with a dangerous weapon. 

According to defendant, “[t]he requirements for an indictment charging a crime in 

which one of the elements is the use of a deadly weapon are (1) to ‘name the weapon 

and (2) either to state expressly that the weapon used was a “deadly weapon” or to 

allege such facts as would necessarily demonstrate the deadly character of the 

weapon,’ ” quoting State v. Brinson, 337 N.C. 764, 768, 448 S.E.2d 822, 824 (1994) 
STATE V. MURRELL

Opinion of the Court

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(emphasis omitted) (quoting State v. Palmer, 293 N.C. 633, 639-40, 239 S.E.2d 406, 

411 (1997)). More specifically, defendant asserted that

[a]lthough the language “robbery with a dangerous 

weapon” appears in the caption, the indictment fails to 

name any weapon. Since no weapon was named, the State 

could not expressly state that the weapon was a deadly 

weapon or allege facts that demonstrate the deadly 

character of the weapon. The indictment also fails to allege 

any facts of how the victim’s life was threatened or 

endangered. The indictment simply states that it appeared 

to the victim that Mr. Murrell possessed a “dangerous 

weapon.”

In defendant’s view, “[b]ecause the dangerous weapon [that] Mr. Murrell allegedly 

possessed inside the bank was not named[,] the trial court was without subject matter 

jurisdiction.” In support of this contention, defendant pointed out that “the 

‘implement’ alleged in the indictment is a note which contained the word ‘armed,’ ” 

which “is not an article, instrument or substance likely to produce death or great 

bodily harm,” citing State v. Wiggins, 78 N.C. App. 405, 406, 337 S.E.2d 198, 199 

(1985), and which “cannot[, for that reason,] constitute a dangerous weapon for

purposes of robbery with a dangerous weapon pursuant to N.C.[G.S.] § 14-87.”

The State, on the other hand, argued that the indictment intended to charge 

defendant with robbery with a dangerous weapon sufficed to establish the trial court’s

jurisdiction because it alleged “that Defendant handed a note saying ‘armed’ to the 

victim, and that it reasonably appeared to the victim that Defendant possessed a 

‘dangerous weapon.’ ” According to the State, the indictment at issue in this case 
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alleged the essential elements of the crime of robbery with a deadly weapon, citing 

State v. Beaty, 306 N.C. 491, 496, 293 S.E.2d 760, 764 (1982), disapproved of on other 

grounds by State v. White, 322 N.C. 506, 518, 369 S.E.2d 813, 819 (1988), given that 

the indictment included references to “deadly weapon” and “armed.”

On 19 April 2016, the Court of Appeals filed an opinion holding that the 

indictment intended to charge defendant with robbery with a dangerous weapon was 

fatally defective because it failed to name any dangerous weapon that defendant 

allegedly employed. State v. Murrell, ___ N.C. App ___, ___ S.E.2d ___, 2016 WL 

1565576, at *5, (Apr. 19, 2016) (No. COA15-1097) (unpublished). As a result, the 

Court of Appeals arrested judgment with respect to the charge of robbery with a 

dangerous weapon. Id. However, given that the challenged indictment sufficiently 

alleged the commission of a common law robbery, the Court of Appeals remanded this

case to the Superior Court, Onslow County, “for entry of judgment and resentencing 

on common law robbery.” Id. (quoting State v. Marshall, 188 N.C App. 744, 752, 656 

S.E.2d 709, 715, disc. rev. denied, 362 N.C. 368, 661 S.E.2d 890 (2008)). On 22 

September 2016, this Court granted the State’s discretionary review petition.

In seeking to persuade this Court to reverse the Court of Appeals’ decision, the 

State argues that the indictment at issue in this case sufficed to charge the 

commission of a robbery with a dangerous weapon because it alleged all of the 

elements of that criminal offense. As an initial matter, the State notes that this Court

has held that “[i]t is sufficient for indictments or warrants seeking to charge a crime 
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Opinion of the Court

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in which one of the elements is the use of a deadly weapon (1) to name the weapon 

and (2) either to state expressly that the weapon used was a ‘deadly weapon’ or to 

allege such facts as would necessarily demonstrate the deadly character of the 

weapon,” quoting Palmer, 293 N.C. at 639-40, 239 S.E.2d at 411 (emphasis omitted). 

The indictment at issue in this case satisfies the first of these two approaches, 

according to the State, because “the indictment did name a weapon” given the

allegation that defendant presented a “note saying that [he] was armed,” and because 

this statement “amounts to [an allegation concerning the] actual threatened use of a 

dangerous weapon.” In addition, the State asserts that the indictment at issue in 

this case satisfies the second of the approaches delineated in Palmer because “the 

indictment here expressly states that it appeared that Defendant possessed a 

‘dangerous weapon.’ ” As a result, contrary to the Court of Appeals’ decision, the 

State contends that “the indictment meets the aforementioned requirements for 

robbery with a dangerous weapon.”

On the other hand, defendant asserts that the indictment that was intended to 

charge defendant with robbery with a dangerous weapon in this case failed to satisfy 

either of the approaches delineated in Palmer and did not, for that reason, suffice to 

support defendant’s conviction for robbery with a dangerous weapon given its failure 

to “specify a dangerous weapon,” to “set forth any facts describing a dangerous 

weapon,” or to “allege that Mr. Murrell possessed any weapon at all.” According to 

defendant, Palmer requires “some minimal degree of specificity in describing the 
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Opinion of the Court

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dangerous weapon at issue in an indictment for robbery with a dangerous weapon.” 

In defendant’s view, “[t]he State . . . must prove that the instrument in question is a 

dangerous weapon”; in the event that “the State cannot name a dangerous weapon 

nor describe one, the State cannot allege nor prove [armed robbery].” A note 

containing the word “armed,” cannot, in defendant’s view, constitute a “dangerous 

weapon.” According to defendant, the indictment fails to allege that defendant 

possessed a dangerous weapon while committing the robbery, citing State v. Keller, 

214 N.C. 447, 449, 199 S.E. 620, 621 (1938) (holding that robbery with a dangerous 

weapon “requires as a constituent element the presence of firearms [or some other 

dangerous weapon]”). A mere allegation that defendant informed the bank teller that 

he was armed simply “fails to allege that Mr. Murrell in fact possessed a dangerous 

weapon.” (Emphasis omitted.) Put another way, defendant argues that the

indictment alleged that defendant “conveyed the impression that he possessed some 

type of weapon” while failing to allege the actual possession of a dangerous weapon. 

As a result, defendant asserts that “[t]he indictment was fatally defective and 

conferred jurisdiction only for common law robbery.”

According to well-established North Carolina law, a valid indictment is 

necessary to confer jurisdiction upon the trial court. See, e.g., State v. Morgan, 226 

N.C. 414, 415, 38 S.E.2d 166, 167 (1946); see also State v. Snyder, 343 N.C. 61, 65, 

468 S.E.2d 221, 224 (1996). Generally speaking, an indictment is sufficient if it: (1) 

“apprises the defendant of the charge against him with enough certainty to enable 
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Opinion of the Court

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him to prepare his defense”; (2) “protect[s] him from subsequent prosecution for the 

same offense”; and (3) “enable[s] the court to know what judgment to pronounce in 

the event of conviction.” State v. Coker, 312 N.C. 432, 434-35, 323 S.E.2d 343, 346 

(1984) (citations omitted); see also N.C.G.S. § 15A-924(a)(5) (2015) (requiring that a 

criminal pleading contain “[a] plain and concise factual statement in each count 

which, without allegations of an evidentiary nature, asserts facts supporting every 

element of a criminal offense and the defendant’s commission thereof with sufficient 

precision clearly to apprise the defendant . . . of the conduct which is the subject of 

the accusation”). In order to satisfy the relevant statutory requirements, including 

the provision of adequate notice, an “indictment must allege lucidly and accurately 

all the essential elements of the offense endeavored to be charged.” State v. Ellis, 368 

N.C. 342, 344, 776 S.E.2d 675, 677 (2015) (quoting State v. Hunt, 357 N.C. 257, 267, 

582 S.E.2d 593, 600, cert. denied, 539 U.S. 985, 124 S. Ct. 44, 156 L. Ed. 2d 702 

(2003)). Consistent with this general rule, “[a]n indictment charging a statutory 

offense must allege all of the essential elements of the offense.” Snyder, 343 N.C. at 

65, 468 S.E.2d at 224 (citation omitted). “A criminal pleading . . . is fatally defective 

if it ‘fails to state some essential and necessary element of the offense of which the 

defendant is found guilty,’ ” Ellis, 368 N.C. at 344, 776 S.E.2d at 677 (quoting State 

v. Gregory, 223 N.C. 415, 418, 27 S.E.2d 140, 142 (1943)), with the presence or absence 

of such a fatal defect to be “judged based solely upon the language of the criminal 

pleading in question without giving any consideration to the evidence that is 
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Opinion of the Court

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ultimately offered in support of the accusation contained in that pleading,” id. at 347, 

776 S.E.2d at 679.

Any person or persons who, having in possession or 

with the use or threatened use of any firearms or other 

dangerous weapon, implement or means, whereby the life 

of a person is endangered or threatened, unlawfully takes 

or attempts to take personal property from another or from 

any place of business, residence or banking institution or 

any other place where there is a person or persons in 

attendance, at any time, either day or night . . . shall be 

guilty of a Class D felony.

N.C.G.S. § 14-87(a) (2015) (defining “Robbery with firearms or other dangerous 

weapons”). As a result, the essential elements of the offense of robbery with a 

dangerous weapon are (1) the unlawful taking or attempted taking of personal 

property from another; (2) the possession, use, or threatened use of firearms or other 

dangerous weapon,1 implement, or means; and (3) a danger or threat to the life of the 

victim. See State v. Moore, 279 N.C. 455, 458, 183 S.E.2d 546, 548 (1971); see also 

N.C.G.S. § 14-87(a). Although the indictment at issue in this case clearly alleges that

defendant unlawfully took the personal property of another while threatening the life 

 

1 A “well-accepted definition of a deadly weapon in this State” is “a weapon which is 

likely to cause death or serious bodily injury.” State v. Sturdivant, 304 N.C. 293, 303, 283 

S.E.2d 719, 727 (1981) (citations omitted); see also State v. Watkins, 200 N.C. 692, 694, 158 

S.E. 393, 394 (1931) (stating that “[a]ny instrument which is likely to produce death or great 

bodily harm, under the circumstances of its use, is properly denominated a deadly weapon”). 

“Whether an instrument can be considered a dangerous weapon depends upon the nature of 

the instrument, the manner in which defendant used it or threatened to use it, and in some 

cases the victim’s perception of the instrument and its use.” State v. Peacock, 313 N.C. 554, 

563, 330 S.E.2d 190, 196 (1985) (citations omitted) (finding that the victim’s “life was 

endangered by defendant’s use of the glass vase,” with which he struck her head).
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Opinion of the Court

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of the victim, we do not believe that the indictment adequately alleges the possession, 

use, or threatened use of firearms or other dangerous weapon, implement, or means.

As this Court has previously stated, “robbery with firearms of necessity 

requires as a constituent element the presence of firearms,” Keller, 214 N.C. at 449, 

199 S.E. at 621, or, by logical extension, the presence of a dangerous weapon. See 

also State v. Joyner, 295 N.C. 55, 63, 243 S.E.2d 367, 373 (1978) (stating that “[t]he 

question in an armed robbery case is whether a person’s life was in fact endangered 

or threatened by defendant’s possession, use or threatened use of a dangerous 

weapon, not whether the victim was scared or in fear of his life”). In evaluating the 

meaning of the statutory reference to “the use or threatened use of any firearms,” 

N.C.G.S. § 14-87(a), we have previously determined that

the word “use” as a noun has the meaning of an “act of 

employing anything, or state of being employed; 

application; employment . . . . The words “threatened use” 

coupled, as they are, with the preceding words clearly 

indicate the threatened act of employing. Hence, construed 

contextually the clause “with the use or threatened use” of 

a weapon, requires, in the one instance, or presupposes, in 

the other, the presence of the weapon with which the act 

may be executed or threatened.

Keller, 214 N.C. at 449, 199 S.E. at 621-22 (internal citations omitted); see also State 

v. Hinton, 361 N.C. 207, 211-12, 639 S.E.2d 437, 440 (2007) (stating that “the General 

Assembly intended to require the State to prove that a defendant used an external 

dangerous weapon before conviction under the statute is proper”); State v. Williams, 

335 N.C. 518, 520, 438 S.E.2d 727, 728 (1994) (stating that, “[t]o establish robbery or 
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Opinion of the Court

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attempted robbery with a dangerous weapon, the State was required to prove beyond 

a reasonable doubt that the defendant possessed a firearm or other dangerous 

weapon at the time of the robbery or attempted robbery and that the victim’s life was 

in danger or threatened”) (citing N.C.G.S. § 14-87 (1986)); State v. Gibbons, 303 N.C. 

484, 491, 279 S.E.2d 574, 578 (1981) (stating that “[o]ur interpretation, which 

requires both an act of possession and an act with the weapon which endangers or 

threatens the life of the victim gives substance to all of the terms of the statute”). As

a result, an indictment sufficient to charge the offense of robbery with a dangerous 

weapon must allege the presence of a firearm or dangerous weapon used to threaten 

or endanger the life of a person.

In State v. Palmer, this Court, in addressing the manner in which the use of a

“dangerous weapon” must be alleged,

2 held

that it is sufficient for indictments . . . seeking to charge a 

crime in which one of the elements is the use of a deadly 

weapon (1) to name the weapon and (2) either to state 

expressly that the weapon used was a “deadly weapon” or 

to allege such facts as would necessarily demonstrate the 

deadly character of the weapon. Whether the state can 

prove the allegation is, of course, a question of evidence 

which cannot be determined until trial.

 

2 “The terms ‘dangerous’ and ‘deadly,’ when used to describe a weapon, are practically 

synonymous.” Sturdivant, 304 N.C. at 303, 283 S.E.2d at 727 (citing Black’s Law Dictionary

355, 359 (5th ed. 1979)).
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Opinion of the Court

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293 N.C. at 639-40, 239 S.E.2d at 411.3 For instance, in State v. Brinson, an 

indictment purporting to charge an assault with a deadly weapon alleged, in 

pertinent part, that the defendant “unlawfully, willfully and feloniously did assault 

John Delton Eason, Jr. . . . by . . . slamming his head against the cell bars, a deadly 

weapon, and floor. The assault was intended to kill and resulted in serious injury, a 

broken neck . . . and . . . left the victim paralyzed.” Brinson, 337 N.C. at 767, 448 

S.E.2d at 824. This Court determined that the indictment satisfied the first of the 

two approaches delineated in Palmer because it “specifically referred to the cell bars 

and cell floor” and satisfied the second of the two approaches delineated in Palmer by 

stating that “the victim’s broken neck and paralysis resulted from the ‘assault,’ ” 

“ ‘necessarily demonstrat[ing] the deadly character’ of’ the cell bars and floor.” Id. at 

768, 448 S.E.2d at 825 (quoting Palmer, 293 N.C. at 640, 239 S.E.2d at 411 (emphasis 

omitted)).

The indictment at issue in this case alleged that defendant took money “by way 

of it reasonably appearing to the victim . . . that a dangerous weapon was in the 

defendant’s possession, being used and threatened to be used by communicating that 

he was armed to her in a note.” An allegation that it “reasonably appear[ed] . . . that 

 

3 As a result of the fact that “[t]he crime of armed robbery defined in [N.C.]G.S. [§] 14-

87 includes an assault on the person with a deadly weapon,” State v. Richardson, 279 N.C. 

621, 628, 185 S.E.2d 102, 107 (1971), this case is controlled by Palmer. The State does not, 

in its brief before this Court, question Palmer’s validity or suggest that it is not controlling 

in this case. Instead, the State appears to argue that the allegations contained in the 

indictment at issue in this case are fully Palmer-compliant.
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Opinion of the Court

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a dangerous weapon was in the defendant’s possession” is simply not equivalent to 

an allegation that defendant actually possessed a weapon.4 In the event that the

allegation that defendant was “armed” was intended to suggest that defendant 

possessed an unidentified weapon, the nature, identity, or deadly character of that 

unidentified weapon is not described at any point in the indictment. See State v. 

Hines, 166 N.C. App. 202, 207, 600 S.E.2d 891, 895 (2004) (addressing a fatal variance 

claim, rather than a challenge to the indictment’s sufficiency, arising under an 

indictment describing the weapon used in a robbery as “an unknown blunt force object 

causing trauma to the head of the victim.”). Simply put, the indictment at issue in 

this case provides no basis for a determination that defendant was “armed” with any 

implement that was inherently dangerous or used in such a manner as to threaten 

the infliction of death or serious injury.

5 As a result, since the indictment returned 

 

4 The absence of a reference to any weapon differentiates this case from Marshall, 188 

N.C. App. at 749-50, 656 S.E.2d at 713-14, in which the Court of Appeals determined that, 

while an allegation that the defendant’s action in “keeping his hand in his coat” sufficiently 

“nam[ed] the weapon,” the indictment was still fatally defective because “pretending to 

possess a dangerous weapon is not a dangerous weapon” and because the indictment “fail[ed] 

either to state expressly that the weapon was dangerous or to allege facts that necessarily 

demonstrat[ed] the dangerous nature of the weapon.” Instead, the indictment at issue in this 

case resembles the indictment at issue in State v. Moses, 154 N.C. App. 332, 335, 572 S.E.2d 

223, 226 (2002), in which the count of the indictment returned for the purpose of charging 

defendant with assault with a deadly weapon inflicting serious injury alleged that the 

defendant “assault[ed] Mateo Mendez Jimenez with a deadly weapon” resulting “in the 

infliction of a serious injury, knocking out his teeth.”

5 Although the indictment does allege that it “reasonabl[y] appear[ed]” to Ms. Phillips 

that “a dangerous weapon was in the defendant’s possession,” that allegation is not 

tantamount to an assertion that defendant was, in fact, in possession of a dangerous weapon 

or that any such weapon was used to threaten Ms. Phillips with death or serious bodily harm. 
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Opinion of the Court

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against defendant in this case failed to sufficiently allege that defendant possessed, 

used, or threatened to use a dangerous weapon,6 the Court of Appeals correctly held 

that the indictment returned against defendant in this case for the purpose of 

charging him with the commission of a robbery with a dangerous weapon was fatally 

defective.

AFFIRMED.

Justice JACKSON dissenting.

When bank employees resist robbery attempts, tragedy often results. The 

policy that bank employees should comply with a robber’s demands has protected 

countless lives. Here, because no one resisted defendant’s threat, no one was injured. 

 

To be sure, this Court has found the evidence sufficient to support a defendant’s conviction 

for robbery with a dangerous weapon based upon a presumption or inference arising from 

“the defendant’s use of what appeared to the victim to be a firearm or other dangerous 

weapon.” State v. Joyner, 312 N.C. 779, 786, 324 S.E.2d 841, 846 (1985). Rather than 

obviating the necessity for proof that the defendant actually possessed or utilized an 

implement that was, in fact, a dangerous weapon, Joyner and similar decisions allow a jury 

to find the possession or use of such an implement based upon testimony describing what the 

item reasonably appeared to be. As a result, there is no conflict between Palmer and decisions 

such as Joyner, none of which allow a defendant to be convicted of robbery with a dangerous 

weapon on the basis of a threat divorced from the actual possession or use of a deadly weapon.

6 The State suggests that the indictment identifies the note that defendant allegedly 

displayed to Ms. Phillips as the required weapon. However, when the relevant portions of 

the indictment are read in their ordinary sense, the indictment simply asserts that the note 

was the means by which defendant informed Ms. Phillips that he was “armed.”
STATE V. MURRELL

JACKSON, J., dissenting

-17-

Law enforcement eventually apprehended defendant, and the grand jury issued an 

indictment that notified defendant of the charge against him. Based upon this 

indictment, defendant was able to prepare adequately for trial. The jury considered 

the evidence and convicted defendant. Now, the majority sets aside the jury’s verdict 

based upon an alleged error in wording. The indictment charging defendant with the 

offense of robbery with a dangerous weapon was sufficient to confer jurisdiction upon 

the trial court because the indictment clearly notified defendant of the charge against 

him, thus allowing him ample opportunity to prepare a defense. Accordingly, I 

respectfully dissent from the majority opinion. 

In this case the indictment alleged that defendant:

[u]nlawfully, willfully and feloniously did steal, take and 

carry away another’s personal property, U.S. Money from 

PNC Financial Services Group, Inc. . . . when a bank 

employee, Stacy Phillips[,] was present. The defendant 

committed this act by way of it reasonably appearing to the 

victim[,] Stacy Phillips[,] that a dangerous weapon was in 

the defendant’s possession, being used and threatened to 

be used by communicating that he was armed to her in a 

note with demands and instructions for her to complete, 

whereby the life of Stacy Phillips was threatened and 

endangered. 

The majority holds that the indictment “clearly alleges that defendant unlawfully 

took the personal property of another while threatening the life of the victim” but is 

nonetheless “fatally defective because it did not sufficiently allege all of the essential 

elements of the offense of robbery with a dangerous weapon.” Specifically, the 
STATE V. MURRELL

JACKSON, J., dissenting

-18-

majority notes that the indictment fails to “adequately allege[ ] the possession, use or 

threatened use of firearms or other dangerous weapon, implement or means.” In 

reaching this conclusion, the majority essentially holds that the indictment is only 

sufficient to support the lesser included offense of common law robbery. 

Unlike common law robbery, the offense of robbery with a dangerous weapon 

requires the use or threatened use of a dangerous weapon. According to section 14-

87(a): 

Any person or persons who, having in possession or with 

the use or threatened use of any firearms or other 

dangerous weapon, implement or means, whereby the life 

of a person is endangered or threatened, unlawfully takes 

or attempts to take personal property from another or from 

any place of business, residence or banking institution or 

any other place where there is a person or persons in 

attendance, at any time, either day or night, or who aids or 

abets any such person or persons in the commission of such 

crime, shall be guilty of a Class D felony.

N.C.G.S. § 14-87(a) (2015) (emphases added). “The critical and essential difference 

between” the offense set forth in N.C.G.S. § 14-87—robbery with a dangerous weapon 

or armed robbery—and common law robbery is that for a jury to find a defendant 

guilty of armed robbery, “the victim must be endangered or threatened by the use or 

threatened use of a ‘firearm or other dangerous weapon, implement or means.’ ” State 

v. Bailey, 278 N.C. 80, 87, 178 S.E.2d 809, 813 (1971) (emphasis added) (quoting State 

v. Covington, 273 N.C. 690, 700, 161 S.E.2d 140, 147 (1968)). If the threatened use 

of a dangerous weapon is sufficient to sustain a conviction for the offense, then the 
STATE V. MURRELL

JACKSON, J., dissenting

-19-

same allegation must be sufficient to place defendant on notice of that same charged 

offense. To rule otherwise seems to create the classic chicken and egg dilemma. How 

can the State convict a person of a crime for which he cannot be indicted? Adopting 

the majority’s logic would inhibit, if not outright prohibit, such prosecutions. This 

cannot be what the legislature intended.

In so doing, the majority also discounts the effect of this threat upon the person 

subjected to such a threat—an effect specifically contemplated by both the statute 

and our precedent. Our cases make clear that it is not only the possession of a weapon

that meets the threshold for robbery with a dangerous weapon but also the threat 

resulting from such possession, whether real or merely implied. As we noted in State 

v. Williams, there is a presumption that (1) a defendant has used a firearm or other 

dangerous weapon when he commits a robbery by the use or threatened use of an 

implement which appears to be a firearm or other dangerous weapon, and (2) such 

conduct endangered or threated the victim’s life. 335 N.C. 518, 520-21, 438 S.E.2d 

727, 728 (1994); see also State v. Thompson, 297 N.C. 285, 288-89, 254 S.E.2d 526, 

528 (1979). The presumption may be rebutted with a showing of “some evidence” that 

the victim was not endangered or threatened, at which point a permissive inference 

survives. Williams, 335 N.C. at 521, 438 S.E.2d at 729 (emphasis omitted) (quoting 

State v. White, 300 N.C. 494, 507, 268 S.E.2d 481, 489 (1980)). 
STATE V. MURRELL

JACKSON, J., dissenting

-20-

Our case law addressing the purpose of indictments is both long-standing and 

clear. As the majority opinion correctly notes, and thoroughly discusses, the 

fundamental purpose of an indictment is to place a criminal defendant on notice of 

the charges being brought against him in order to allow him to prepare an adequate 

defense. In short, the indictment notifies defendant of the charge against him; the 

jury determines if the evidence is adequate to support the charge. The information 

provided in the indictment—including the reference to section 14-87—clearly was 

sufficient to place defendant on notice that he was being tried for robbery with a 

dangerous weapon and that the gravamen of his offense was the bank employee’s 

reasonable apprehension based upon the note he showed her stating that he was 

armed. 

The majority cites our previous decision in State v. Palmer for the proposition 

that an indictment alleging the use of a dangerous weapon must “name the weapon.” 

Palmer, 293 N.C. 633, 639, 239 S.E.2d 406, 411 (1977). Palmer does require an 

indictment for assault with a deadly weapon to identify a particular weapon; 

however, I am troubled by the analytical framework set forth in Palmer in that it 

appears to be inconsistent with the long-standing precedents of this Court and places 

significant reliance upon a case that depended in large part on a legal treatise for the 

foundation of its legal analysis. See id. at 639-40, 239 S.E.2d at 410-11. 
STATE V. MURRELL

JACKSON, J., dissenting

-21-

Palmer actually concerned the sufficiency of an indictment for assault with a 

deadly weapon—a wholly different statute than the one at issue here. Therefore, 

Palmer’s utility in analyzing this case is of limited value. Moreover, there are three 

additional reasons Palmer should not guide our inquiry in this case. First, Palmer

stated that indictments for crimes involving the use of a deadly weapon must “name 

the weapon,” 293 N.C. at 639, 239 S.E.2d at 411, but, to the extent that this rule 

applied to statutes other than the one at issue in Palmer, that requirement was 

dictum. In addition, Palmer based its rule on a case that relied substantially on an 

entry from Corpus Juris Secundum (C.J.S.). See id. at 639, 239 S.E.2d at 410-11 

(quoting State v. Wiggs, 269 N.C. 507, 513, 153 S.E.2d 84, 89 (1967)). But legal 

treatise entries are not binding authority on this Court—nor should they be—so the 

source of Palmer’s rule is troubling. Finally, a review of the pertinent C.J.S. entry 

quoted in Palmer fails to support the rule that Palmer set forth. That C.J.S. entry 

suggests only that an indictment must either (1) name the weapon (if its dangerous 

or deadly nature is obvious), (2) assert that a dangerous or deadly weapon was used, 

or (3) state enough facts to show that the weapon was deadly or dangerous. For all 

these reasons, we should not extend Palmer’s dictum to cover the statute at issue 

here.

Because Palmer is inconsistent with Williams and its forebears and progeny, 

however, Palmer has erroneously engrafted a requirement not included within the 

plain meaning of the words of the assault with a deadly weapon statute. Therefore, 
STATE V. MURRELL

JACKSON, J., dissenting

-22-

I cannot agree with the majority’s determination that it is appropriate to engraft that 

same requirement on the statute at issue here—namely, robbery with a dangerous 

weapon—because the plain meaning of that statute does not include the requirement.

Simply considering the statutory requirements for a conviction for robbery 

with a dangerous weapon, I find it impossible to conclude that the majority opinion 

has reached the correct conclusion in this case. In addition, in practice the majority’s 

holding will place a high burden on law enforcement and prosecutors who prepare 

indictments to ensure that the dangerous weapon actually utilized during the robbery 

has been located. This seems to be a quantum shift in the jurisprudence of both this 

Court and our Court of Appeals.1 According to our current precedents, a serious 

crime has been committed, but the majority’s analysis will make it far more difficult 

to prosecute these types of offenses in the absence of the actual weapon utilized in 

the commission of a crime.

 

1

 See, e.g., State v. Waters, ___ N.C. App. ___, 799 S.E.2d 287, 2017 WL 2118718, at 

*4 (2017) (unpublished) (holding that a defendant’s threat of possessing a bomb, which 

provoked victim’s reasonable belief in the veracity of that threat, was sufficient to overcome 

the defendant’s motion to dismiss a charge of robbery with a dangerous weapon even though 

police failed to “discover a bomb, evidence of a bomb, or any bomb-making materials”); State 

v. Jarrett, 167 N.C. App. 336, 337, 341, 607 S.E.2d 661, 662, 664 (2004) (holding no error in 

the defendant’s trial and conviction for robbery with a dangerous weapon even though “[a] 

gun was not found on defendant’s body nor in the house from which [law enforcement] saw 

defendant exit”), cert. denied, 359 N.C. 324, 611 S.E.2d 840 (2005); State v. Coatney, 164 N.C. 

App. 599, 596 S.E.2d 472, 2004 WL 1191779, at *1, *3 (2004) (unpublished) (concluding that, 

on a charge of robbery with a dangerous weapon, “the evidence here entitled the State to a 

mandatory presumption that defendant used a firearm or dangerous weapon and endangered 

or threatened the victim's life,” while noting that police did not recover a gun).
STATE V. MURRELL

JACKSON, J., dissenting

-23-

For the foregoing reasons, I dissent.

Chief Justice MARTIN and Justice NEWBY join in this dissenting opinion.