STATE OF NORTH CAROLINA
v. Iredell County
No. 99 CRS 2507
JEREMY LYNN BENFIELD
Attorney General Roy Cooper, by Assistant Attorney General
Newton G. Pritchett, Jr., for the State.
Judy Dalton for defendant-appellant.
EAGLES, Chief Judge.
Defendant Jeremy Lynn Benfield appeals from a judgment
sentencing him to imprisonment for a minimum term of 117 months and
a maximum term of 150 months for a conviction by a jury of robbery
with a dangerous weapon.
The State presented evidence tending to show that on 10
February 1999, Douglas Nichols (Nichols) gave defendant's two
daughters and their mother, Shannon Anderson (Anderson), a ride to
Anderson's residence in his pickup truck. Nichols, Anderson, and
the two girls walked into Anderson's residence, and Anderson
prepared to give her daughters a bath. At trial, the accounts of
Nichols and Anderson as to what transpired after this point
conflict. Anderson testified that as she was preparing to bathe her
daughters, she saw defendant standing in the living room and
holding a gun by his side but not pointing it. Defendant asked her
why she was keeping him away from his children. He told her that
he wanted her and the children to spend some time with him that
day. Anderson finished bathing the girls, and asked defendant to
dress the youngest. At Anderson's request, defendant handed her
the gun. Defendant asked Nichols for the use of his truck so he
could spend time with Anderson and his children. Defendant told
Nichols that he would return the truck that afternoon. Defendant,
Anderson, and the two girls departed in the truck. They stayed
overnight in a motel room, and they traveled to Myrtle Beach, South
Carolina the next day. At no time did Anderson see defendant point
a gun at anyone while he was in the residence.
Conversely, Nichols testified that Anderson was giving the
girls a bath when defendant entered the residence and pointed a gun
at him. Defendant uttered a profanity and ordered Nichols to get
on the floor. Defendant entered the bathroom and argued angrily
with Anderson. During the course of the argument, defendant
pointed the gun at Anderson. Defendant subsequently asked to use
Nichols' truck. Nichols indicated that he was going with defendant
in his truck. Defendant responded, “No, I ain't that stupid. . .
. Either you let me take it or I'll force you to let me take it.”
While making this statement, defendant had the gun stuck in his
waistband. Defendant, Anderson, and the two girls departed inNichols' truck. At no time did defendant relinquish possession of
the gun to Anderson.
At trial, defendant testified on his own behalf. Defendant
testified that he picked up the gun after entering the residence,
removed the clip, and put the clip in his pocket. He did not point
the gun at Nichols or anyone else. He handed the gun to Anderson
after she asked him to dress the youngest child. Nichols allowed
him to take his truck. Anderson and the two girls rode with him.
After staying in a motel overnight, they rode to Murrill's Inlet,
South Carolina, where he subsequently surrendered to law
enforcement officers on 12 February 1999.
On appeal, defendant contends that the court erred by denying
his motions to dismiss the charge of robbery with a dangerous
weapon for insufficient evidence. A motion to dismiss requires the
trial court to determine whether there is substantial evidence to
establish every element of the offense charged and the defendant's
perpetration of the offense. State v. Lynch, 327 N.C. 210, 215,
393 S.E.2d 811, 814 (1990). Substantial evidence is that which a
reasonable mind might accept as adequate to support a conclusion.
State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). In
deciding the motion, the court must consider the evidence in the
light most favorable to the State, giving it the benefit of every
reasonable inference that may be drawn, and resolving all conflicts
and discrepancies in its favor. State v. Earnhardt, 307 N.C. 62,
67, 296 S.E.2d 649, 652-53 (1982). The essential elements of armed robbery are (1) the unlawful
taking or 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. State v. Faison, 330 N.C. 347, 358, 411
S.E.2d 143, 149 (1991). The taking or attempted taking must be
with felonious intent, i.e., the intent to permanently deprive the
owner of his property. State v. Wheeler, 122 N.C. App. 653, 656,
471 S.E.2d 636, 639 (1996). As long as there is a continuous
transaction, the temporal order of the use or threatened use of a
deadly weapon is immaterial. State v. Barnes, 125 N.C. App. 75,
78, 479 S.E.2d 236, 238 (1997).
Defendant argues that the State's evidence fails to show a
taking of Nichols' truck with felonious intent or by the use or
threatened use of a deadly weapon. We disagree.
Felonious intent may be proved by evidence demonstrating the
taker's total indifference to the owner's rights, such as when the
taker keeps the property as his own until he is apprehended. State
v. Smith, 268 N.C. 167, 173, 150 S.E.2d 194, 200 (1966). The
uncontradicted evidence shows that the truck was not returned to
Nichols by defendant, but instead, the truck was taken from
defendant by law enforcement authorities at the time of his
apprehension.
With respect to the element of use or threatened use of a
deadly weapon, the evidence, considered in the light most favorable
to the State and disregarding contradictions and discrepancies,shows that defendant pointed the gun at Nichols and kept it on his
person at all times. Additionally, Nichols testified that he was
afraid defendant would shoot him or beat him to death with the gun
if he did not allow defendant to have the truck. Thus, we conclude
that the State presented substantial evidence to establish every
element of the offense charged and defendant's perpetration of the
offense sufficient to warrant submission of the charge to the jury.
Alternatively, defendant contends that the court erred by
failing to submit the lesser offense of common law robbery to the
jury. Submission of a lesser offense is required only when there
is evidence from which it could be found that the defendant
committed the lesser offense. State v. Hicks, 241 N.C. 156, 159,
84 S.E.2d 545, 547 (1954). The presence of such evidence is the
determinative factor, and the mere contention that the jury might
accept the evidence in part and reject it in part is insufficient
to mandate submission of the instruction. Id. at 159-60, 84 S.E.2d
at 547. Common law robbery is the felonious taking of another's
money or goods from his person or in his presence without his
consent or against his will by violence or intimidation. State v.
Moore, 279 N.C. 455, 457, 183 S.E.2d 546, 547 (1971). The
difference between common law robbery and robbery with a dangerous
weapon is that the latter “is accomplished by the use or threatened
use of a firearm or other dangerous weapon whereby the life of a
person is endangered or threatened.” State v. Lee, 282 N.C. 566,
569, 193 S.E.2d 705, 707 (1973). The testimony of both Anderson and defendant was to the effect
that defendant borrowed Nichols' truck with Nichols' consent and
without force or the use or threatened use of a gun or weapon.
Nichols' testimony was that the truck was taken against his will by
the threatened use of a gun. The evidence therefore shows that
defendant either committed the offense of robbery with a dangerous
weapon or no offense at all. Thus, we conclude that the court did
not err by failing to submit common law robbery to the jury. See,
e.g., State v. Lee, 282 N.C. 566, 193 S.E.2d 705(common law robbery
properly not submitted where defendant denied robbing or holding
gun to victim); State v. Stevenson, 3 N.C. App. 46, 164 S.E.2d 24
(1968)(common law robbery properly not submitted where defendant's
evidence did not show a robbery but a loan).
By failing to argue his remaining assignments of error,
defendant has abandoned them. N.C. R. App. P. 28(a).
In sum, we hold defendant received a fair trial, free of
prejudicial error.
No error.
Judges TIMMONS-GOODSON and McCULLOUGH concur.
Report per Rule 30(e).
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