STATE OF NORTH CAROLINA
v. Wake County
No. 00CRS39864
JERRY LEE McDANIEL,
Defendant.
Attorney General Roy A. Cooper, by Special Deputy Attorney
General Thomas R. Miller, for the State.
John T. Hall for defendant-appellant.
EAGLES, Chief Judge.
Jerry Lee McDaniel (“defendant”) appeals from judgment entered
on a jury verdict finding him guilty of robbery with a dangerous
weapon. After careful consideration of the briefs and record, we
discern no error.
The State's evidence tended to show that Tish Ford (“Ford”)
was a night manager at the McDonald's restaurant on Highway 64 in
Wendell, North Carolina. Terry Kellam (“Kellam”) and his
girlfriend, Ford, planned to rob Ford's place of employment.
According to their plan, Ford would leave the back door of the
restaurant open so that Kellam could gain entry. When Kellam drove
Ford to work on 4 November 1999, the couple agreed that the robberywould occur that evening. Kellam then drove to a rooming house to
find defendant and ask him to assist in the robbery. Defendant
agreed to assist in the robbery and provided a rifle and hand
grenade to use in the robbery. Kellam took the rifle and defendant
carried the hand grenade and a toboggan. The two also found a
Halloween mask at the rooming house. After recruiting a third
person, a man known as “Face,” the three co-conspirators drove to
a convenience store where they bought gloves to wear during the
robbery.
At around 10:00 p.m., the three men drove to the McDonald's
restaurant, circled around the restaurant, and then drove to a
nearby shopping center, where Kellam called Ford. Ford told Kellam
that the back door was unlocked and that everything was okay. Face
walked a short distance to the restaurant to see if there were
people inside the restaurant. When Face returned, defendant and
Kellam entered the restaurant through the open back door.
Defendant wore a mask made from the toboggan and Kellam wore the
Halloween mask. Defendant held up the grenade and ordered Ford and
three other employees to do as they were told to prevent injury to
themselves. Similarly, Kellam carried the rifle and told Ford and
the other employees to do as they were instructed to avoid getting
hurt. Kellam then escorted the restaurant employees, with the
exception of Ford, to the dishwashing area and confined them there.
Defendant and Kellam then yelled at Ford to give them the money
from the restaurant safe. Crying and frightened, Ford complied.
After Ford gave Kellam and defendant the money, the two men orderedher to lie on the floor. The two then fled the scene and joined
Face in the get-away vehicle. Kellam drove Face and defendant to
a motel where Kellam and Ford were living. Kellam left defendant
and Face at the hotel while he returned to the McDonald's to pick
up Ford. Upon their return, Kellam, Ford, Face and defendant
divided approximately $5,000 stolen from the restaurant.
Ford called the police immediately after the robbery but did
not confess her involvement until May 2000. She then identified
defendant and Kellam as the robbers. Kellam also confessed his
involvement to the police and identified defendant as the person
who assisted him in the 4 November 1999 robbery of the McDonald's
restaurant.
Defendant's evidence tended to show that defendant was at a
party during a forty-eight hour period from the evening of 3
November 1999 to the morning of 5 November 1999. Latasha
Robertson, a close friend of defendant, and Michelle Patterson,
defendant's former girlfriend, testified that they were at the
party with defendant.
The matter came to trial at the 23 October 2000 Criminal
Session of Wake County Superior Court before Judge James. C.
Spencer, Jr. The jury returned a verdict of guilty of robbery with
a dangerous weapon. The trial court entered judgment on the jury
verdict and sentenced defendant in the presumptive range to a term
of 108 to 139 months imprisonment. Defendant appeals.
Defendant's sole argument on appeal is that the trial court
erred in denying his motion to dismiss for insufficiency of theevidence. Defendant argues that since the night manager of the
restaurant that was robbed was a co-conspirator in the robbery, the
State cannot show that defendant committed the crime charged. We
disagree.
A motion to dismiss for insufficiency of the evidence is
properly denied “'[i]f there [is] substantial evidence -- whether
direct, circumstantial, or both -- to support a finding that the
offense charged [has been] committed and that the defendant
committed it . . . .'” State v. Ainsworth, 109 N.C. App. 136, 142,
426 S.E.2d 410, 414 (1993) (quoting State v. Degree, 322 N.C. 302,
307-08, 367 S.E.2d 679, 683 (1988) (citations omitted)).
“'Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.'” State v.
Cobb, ___ N.C. App. ____, ___, 563 S.E.2d 600, 607 (quoting State
v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980) (citations
omitted)), disc. review denied, __ N.C. __, __ S.E.2d __ (2002).
“When ruling on a motion to dismiss, all of the evidence should be
considered in the light most favorable to the State, and the State
is entitled to all reasonable inferences which may be drawn from
the evidence.” State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d
138, 141 (1998).
Here, defendant was charged with robbery with a dangerous
weapon, in violation of G.S. § 14-87. G.S. § 14-87(a) states that:
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 propertyfrom 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.
G.S. § 14-87(a) (2001). It is not necessary that the ownership of
the property stolen be laid in any specific person to prove the
crime of robbery with a dangerous weapon. State v. Spillars, 280
N.C. 341, 345, 185 S.E.2d 881, 884 (1972). The allegations and
proof must be sufficient to negate the idea that the accused took
his own property. State v. Fountain, 14 N.C. App. 82, 86, 187
S.E.2d 493, 496 (1972). The essence of the offense is force or
intimidation along with the use or threatened use of a firearm.
State v. Hartman, 344 N.C. 445, 473, 476 S.E.2d 328, 344 (1996),
cert. denied, 520 U.S. 1201, 137 L. Ed. 2d 708 (1997).
Defendant's indictment charges that he
did steal, take, and carry away another's
personal property, United States Currency,
having a value of $5,647.91, from the
McDonald's Restaurant, Wendell, NC, by means
of an assault consisting of having in his
possession and threatening the use of a
grenade and a rifle, dangerous weapons,
whereby the lives of patrons and workers at
the McDonald's Restaurant were endangered and
threatened.
The evidence tends to show that defendant and a co-conspirator,
Kellam, did enter the McDonald's restaurant on 4 November 1999.
Defendant held a grenade and Kellam carried a rifle. The two used
the weapons to force the restaurant employees to comply with their
demands. Defendant and Kellam told employees that they could
prevent any harm to themselves by doing as instructed. Ford, thenight manager who was on duty at the time of the robbery, had
conspired with Kellam in planning the robbery and therefore,
consented to the robbery. The remaining three employees, however,
did not so consent. Those employees feared for their lives and did
as they were told because of that fear. Ford subsequently took
approximately $5,000 from the restaurant safe and gave the money to
defendant and Kellam.
This Court was presented with a similar set of facts in State
v. Thompson, 57 N.C. App. 142, 291 S.E.2d 266, aff'd, 307 N.C. 125,
296 S.E.2d 297 (1982). Much like defendant in this case, the
defendant in Thompson argued that there was not sufficient evidence
to convict him of armed robbery because the evidence showed that
the manager of the restaurant from which the money was taken was an
accomplice to the crime, which meant that the money was taken with
the accomplice-manager's consent. Id. at 144-45, 291 S.E.2d at
267. This Court rejected this argument and concluded that the
defendant could be convicted of armed robbery, even if the manager
of the restaurant was in fact an accomplice since there were other
employees at the restaurant when it was robbed who had not
consented to the taking of the subject property. Id. at 145, 291
S.E.2d at 267; see State v. Ballard, 280 N.C. 479, 488, 186 S.E.2d
372, 377 (1972) (providing that while the employees held at
gunpoint had no access to the safe, they did share a duty to
safeguard their employer's money held therein).
Although defendant argues to the contrary, we conclude that
the State did present sufficient evidence to show that defendantcommitted the crime charged. First, as specified by the statute,
the McDonald's restaurant may be properly named as an owner of
stolen personal property. See G.S. § 14-87(a). Second, while Ford
did conspire with Kellam to rob her employer and expected the
robbery on 4 November 1999, her “consent” to the robbery in no way
negates the fact that the three other employees present on the
evening of the robbery were completely unaware of the conspiracy.
See Thompson, 57 N.C. App. at 145, 291 S.E.2d 267. Those three
employees were threatened by the defendant and were frightened for
their lives. They did not consent to the robbery of the
restaurant. Finally, it is immaterial to the crime of armed
robbery that only Ford, a co-conspirator, had access to the safe.
Every employee present in a place of business when it is robbed has
a responsibility to safeguard the employer's property if he can do
so without endangering his life. See Ballard, 280 N.C. at 488, 186
S.E.2d at 377.
In sum, the State made the requisite showing that defendant
took and carried away approximately $5,000 of currency from the
McDonald's restaurant in Wendell, North Carolina with the use or
threatened use of a rifle and grenade, thereby endangering certain
employees of the restaurant. Accordingly, the trial court did not
err in denying defendant's motion to dismiss.
No error.
Judges McCULLOUGH and HUDSON concur.
Report per Rule 30(e).
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