STATE OF NORTH CAROLINA
v. Cumberland County
No. 99 CRS 66126
SHAREEF RIQE SHAHEED
Attorney General Roy Cooper, by Assistant Attorney General
Bart Njoku-Obi, for the State.
John T. Hall for defendant-appellant.
TYSON, Judge.
Shareef Riqe Shaheed (“defendant”) was charged with robbery
with a dangerous weapon and conspiracy to commit robbery with a
dangerous weapon. The jury returned a verdict of not guilty of
conspiracy, and guilty of robbery with a dangerous weapon on the
theories of acting in concert and aiding and abetting. The State's
evidence tended to show that on the night of 8 September 1999, two
men, later identified as Christopher Mitchell (“Mitchell”) and
Montez McDougal (“McDougal”), entered the Knight Brothers Food
Mart, where Erin Rebecca Reiner (“Reiner”) worked as a cashier.
Mitchell jumped over the sales counter, looked through cupboards
and demanded money. McDougal showed Reiner a gun tucked in hispant waistband and ordered her to lie on the floor. Reiner
testified that she was scared when she saw the gun. After Mitchell
again demanded money, Reiner gave the two men money from the cash
register and a bag of money the store used for change. The two men
took approximately $600 in cash.
Mitchell and McDougal left the store and ran to Mitchell's
car, which was parked outside the store. Defendant, who was in the
driver's seat, drove Mitchell and McDougal to the home of
Mitchell's girlfriend. After defendant parked the car, all three
men walked to the backyard of the residence to split the money.
Police subsequently apprehended defendant, Mitchell and McDougal
outside the residence.
Defendant admitted during the trial that he dropped Mitchell
and McDougal off outside the store and picked them up. He denied
planning and/or receiving any money from the robbery. The trial
court sentenced defendant to fifty to sixty-nine months
imprisonment. Defendant appeals.
In his first assignment of error, defendant contends the trial
court erred by denying his motion to dismiss the charge of robbery
with a dangerous weapon. Defendant argues there was insufficient
evidence to show the “use or threatened use” of a firearm to
accomplish the robbery.
Under the North Carolina Rules of Appellate Procedure a motion
to dismiss made at the close of the State's evidence is waived if
the defendant presents evidence, and a defendant must renew his
motion to dismiss at the close of all the evidence in order tochallenge the sufficiency of the evidence on appeal. N.C.R. App.
P. 10(b)(3). Defendant admits that although he moved to dismiss
the charge against him at the close of the State's evidence, he
presented evidence and failed to renew his motion at the close of
all the evidence. Defendant is precluded from challenging the
sufficiency of the evidence presented at trial. See State v.
Elliott, 69 N.C. App. 89, 316 S.E.2d 632, appeal dismissed and
disc. review denied, 311 N.C. 765, 321 S.E.2d 148 (1984).
By his third assignment of error, defendant requests that this
Court review this issue under plain error. Our Supreme Court,
however, has stated that “plain error analysis applies only to
instructions to the jury and evidentiary matters.” State v.
Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578 (2000); see also
State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109 (1998), cert.
denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999). The application
of plain error does not extend to situations where a party has
failed to renew his motion at the close of all the evidence after
presenting evidence. State v. Goodman, ___ N.C. App. ___, ___, 560
S.E.2d 196, 199 (2002) (citations omitted). Defendant has waived
this issue pursuant to Rule 10(b)(3) of the Rules of Appellate
Procedure.
Defendant also contends the trial court erred by accepting the
jury's guilty verdict on the grounds that there was insufficient
evidence of the use or threatened use of a firearm to accomplish
the robbery. The denial of a motion to set aside the verdict as
being against the greater weight of the evidence is within thediscretion of the trial court and is reviewable on appeal under an
abuse of discretion standard. State v. Wilson, 313 N.C. 516, 538,
330 S.E.2d 450, 465 (1985). Defendant failed to object to the
entry of the judgment following the jury's guilty verdict, and
failed to preserve this question for appellate review. See N.C.R.
App. P. 10(b)(1)(“to preserve a question for appellate review, a
party must have presented to the trial court a timely request,
objection or motion, stating the specific grounds for the ruling
the party desired the court to make if the specific grounds were
not apparent from the context.”).
No error.
Judges GREENE and HUDSON concur.
Report per Rule 30(e).
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