NO. COA02-259
Appeal by defendant from judgment dated 19 October 2001 by
Judge Richard L. Doughton in Forsyth County Superior Court. Heard
in the Court of Appeals 30 December 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Kathryn J. Thomas, for the State.
Russell J. Hollers, III for defendant appellant.
GREENE, Judge.
Devon Lester Webster (Defendant) appeals a judgment dated 19
October 2001 entered consistent with a jury verdict finding him
guilty of robbery with a dangerous weapon.
Defendant was indicted for robbery with a dangerous weapon on
22 January 2001. At trial, the evidence revealed that, at
approximately 2:30 p.m. on 10 November 2000, Defendant entered a
Fairway One Stop convenience store on South Broad Street in
Winston-Salem, North Carolina, which was operated by Hyeon Jung
(Jung). Jung observed Defendant asking other customers for money.
When Jung told him to stop, Defendant asked Jung for some beer “on
credit.” Jung refused and instructed Defendant to leave the store. Defendant became confrontational and began grabbing cigarettes,
cigars, and other merchandise off the checkout counter and putting
the items into his pockets. When Jung said he was going to
telephone the police, Defendant pulled a knife from his pocket,
showed it to Jung, and demanded money. Jung went behind the store
counter and retrieved a handgun. As Jung came back around the
counter, Defendant brandished his knife at Jung with the blade
open. Jung then pointed his gun at Defendant and took away the
knife. Jung walked back behind the store counter to telephone the
police.
Winston-Salem Police Officer Catrin Giles (Officer Giles)
arrived at the store within a few minutes of Jung's call. Jung
described Defendant to Officer Giles and gave her the knife
Defendant had used during the incident. Defendant was subsequently
spotted by another police officer while walking down South Broad
Street approximately 400 yards from Jung's store. When approached
by the officer, Defendant attempted to run but was taken into
custody. The police found cigarettes and cigars on Defendant,
although these were not presented to Jung for identification.
At the end of the State's evidence and at the end of all the
evidence, Defendant moved to dismiss the charge against him. The
trial court denied both motions.
___________________________
The issue is whether there was substantial evidence to
withstand Defendant's motion to dismiss at the close of all the
evidence. Defendant contends the trial court erred in denying his motion
to dismiss for want of sufficient evidence. He claims the State
made no showing he endangered or threatened Jung's life with a
dangerous weapon or that he accomplished a taking by violence or by
putting Jung in fear of violence. Defendant notes his behavior
during the robbery did not deter Jung from retrieving his gun and
“did nothing to further the theft of the cigarettes.”
In order to withstand a motion to dismiss, the State must
present substantial evidence of each essential element of the
offense and of the defendant's identity as the perpetrator.
See
State v. Riddle, 300 N.C. 744, 746, 268 S.E.2d 80, 81 (1980).
“Substantial evidence is such relevant evidence that a reasonable
mind might accept as adequate to support a conclusion.”
State v.
Morgan, 111 N.C. App. 662, 665, 432 S.E.2d 877, 879 (1993). In
reviewing the trial court's denial of a motion to dismiss, the
evidence must be construed in the light most favorable to the
State.
State v. Neal, 109 N.C. App. 684, 686, 428 S.E.2d 287, 289
(1993)
.
The elements of robbery with a dangerous weapon are: (1) a
taking or attempted taking of property from the person or presence
of another; (2) the use or threatened use of a dangerous weapon to
accomplish the taking; and (3) a threat to or endangerment of the
person's life. N.C.G.S. § 14-87(a) (2001);
State v. Wiggins, 334
N.C. 18, 35, 431 S.E.2d 755, 765 (1993). “[T]he temporal order of
the threat or use of a dangerous weapon and the taking is
immaterial.”
State v. Cunningham, 97 N.C. App. 631, 634, 389S.E.2d 286, 288
(1990). Rather, the offense occurs when “the
threat or use of the dangerous weapon and the taking are 'so joined
in time and circumstances as to be inseparable.'”
State v. Barnes,
125 N.C. App. 75, 78, 479 S.E.2d 236, 238 (quoting
State v. Lilly,
32 N.C. App. 467, 469, 232 S.E.2d 495, 497 (1977)),
aff'd, 347 N.C.
350, 492 S.E.2d 355 (1997).
The State introduced substantial evidence Defendant stole or
attempted to steal merchandise from the counter of Jung's
convenience store. When Jung protested, Defendant pulled a knife
on Jung and demanded money. Defendant subsequently opened the
knife blade and pointed it at Jung. The knife was introduced into
evidence at trial, creating at least a jury question on its status
as a dangerous weapon.
See generally State v. Smallwood, 78 N.C.
App. 365, 369, 337 S.E.2d 143, 145 (1985) (“[i]n cases where the
knife has not been produced or described in detail, and the victim
has not suffered injury or death, the question of whether a knife
is a dangerous weapon is generally for the jury”). Moreover, the
display of a dangerous weapon accompanied by a demand for money
“conveys the message loud and clear that the victim's life is being
threatened.”
State v. Green, 2 N.C. App. 170, 173, 162 S.E.2d 641,
643 (1968);
accord State v. Harris, 71 N.C. App. 141, 144, 321
S.E.2d 480, 483 (1984)
. Even assuming Defendant placed the
merchandise in his pockets before producing the knife, his display
of a weapon when confronted by Jung was an act in furtherance of
and inseparable from the actual taking.
See Barnes, 125 N.C. App.
at 79, 479 S.E.2d at 238-39. Finally, the fact that Jung was notintimidated by the knife does not affect the sufficiency of the
State's proffer. “The question in an armed robbery case is whether
a person's life was in fact endangered or threatened by [the]
defendant's . . . threatened use of a dangerous weapon, not whether
the victim was scared or in fear of his life.”
State v. Joyner,
295 N.C. 55, 63, 243 S.E.2d 367, 373 (1978). Accordingly,
Defendant's motion to dismiss was properly denied. Although the
record on appeal contains additional assignments of error, we deem
them abandoned as they were not addressed in Defendant's brief to
this Court.
See N.C.R. App. P. 28(b)(6).
No error.
Judges TIMMONS-GOODSON and TYSON concur.
Report per Rule 30(e).
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