1. Robbery--armed--motion to dismiss--sufficiency of evidence--lesser-included offense
of common law robbery
The trial court did not err by denying defendant's motion to dismiss the charge of armed
robbery, or in the alternative, refusing to instruct the jury on the lesser-included offense of
common law robbery, because: (1) there was an unlawful taking of shirts from store premises,
defendant showed the security officers that he possessed a gun, and the security officers testified
that they believed defendant might use the gun; (2) while defendant's use of intimidation
occurred after the taking of property, defendant's effort to avoid apprehension by store and mall
security officers is an action continuous with the taking and therefore constitutes a part of the
robbery attempt; (3) the fact that only one witness to the incident actually observed the gun in
defendant's possession goes to the weight of the evidence; and (4) there was no evidence
presented to support an instruction on the lesser-included offense of common law robbery.
2. Evidence--audiotape of 911 call-_authentication
The trial court did not err in an armed robbery and possession of a firearm by a convicted
felon case by admitting an audiotape of the 911 call into evidence because the audiotape was
properly authenticated by the testimony of two witnesses, both of whom were able to identify
their own voice and the voices of each other on the tape.
3. Evidence--videotaped news report of gun recovery--illustrative purpose
The trial court did not err in an armed robbery and possession of a firearm by a convicted
felon case by admitting a videotaped news report of the gun recovery into evidence, because: (1)
the State offered the videotape for the sole purpose of illustrating the testimony of the K-9
officer; and (2) the trial court properly instructed the jury that the videotape was being received
into evidence for the limited purpose of illustrating the witnesses' testimony.
4. Evidence--prior crimes or bad acts--conspiracy to sell and deliver cocaine--
authentication
The trial court did not err in an armed robbery and possession of a firearm by a convicted
felon case by admitting evidence of defendant's previous conviction for conspiracy to sell and
deliver cocaine allegedly without proper authentication of the document, because: (1) N.C.G.S. §
8C-1, Rule 1005 states that the contents of an official record if otherwise admissible may be
proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a
witness who has compared it with the original; and (2) a witness testified that the document was
an exact copy of the original commitment order, that he observed the original document as it was
pulled from county records, and witnessed the copy produced and certified by the clerk of court.
5. Firearms and Other Weapons--possession of a firearm by a convicted felon_-motion
to dismiss-sufficiency of evidence
The trial court did not err by denying defendant's motion to dismiss the charge of
possession of a firearm by a convicted felon even though the possession of a firearm occurredmore than five years after the previous felony conviction, because N.C.G.S. § 14-415.1 contains
no time bar for this charge.
Attorney General Roy Cooper, by Assistant Attorney General
Tina A. Krasner, for the State.
MCCOTTER, ASHTON & SMITH, P.A., by Rudolph A. Ashton, III and
Terri W. Sharp, attorneys for defendant-appellant.
TIMMONS-GOODSON, Judge.
John Fred Gaither (“defendant”) appeals his convictions of
armed robbery and possession of a firearm by a convicted felon.
For the reasons stated herein, we hold that defendant received a
trial free of prejudicial error.
The evidence presented at trial tended to show the following:
On 16 January 2002 at approximately 3:30 p.m., Belk department
store security officer Tina Holt (“Holt”) and regional loss
prevention manager Brian Phillips (“Phillips”) observed defendant
on the second floor of the store in Wilmington, North Carolina via
a security camera. Defendant drew the two employees' attention
because he was wearing a large, heavy coat with a drawstring pulled
tightly around the waist. Defendant also appeared to nervously
look around the store. Holt and Phillips observed defendant
conceal inside his coat nine Polo shirts from the boys' clothing
department. After concealing the shirts, defendant zipped his coat and
proceeded out of the boys' department to the escalator. As
defendant rode the escalator to the first floor, Holt called for
assistance from mall security officers, James Allen (“Allen”) and
Jeffrey Reece (“Reece”), while Phillips called 911. Belk security
officer Caroline Short (“Short”) was called to the loss prevention
office to monitor the situation via security camera while Phillips
communicated with the 911 operator. Short eventually took over the
communication with the 911 officer from Phillips.
Holt, Allen and Reece attempted to stop defendant at the
bottom of the escalator. As they approached defendant, he
immediately put his hands in his pockets. Allen asked defendant to
remove his hands from his pockets several times, but defendant
refused to do so. Holt, Allen and Reece instructed defendant to
accompany them to the loss prevention office, but defendant
continued to walk toward the store exit. Allen and Reece placed
themselves in front of the exit to prevent defendant from leaving.
As Reece stood in front of defendant, he focused on
defendant's hands. Defendant removed his hand from his pocket, and
Reece saw the barrel of a small handgun with defendant's right
index finger on the trigger of the gun. Defendant said, “You don't
- you don't want to do that.” Reece immediately moved from
defendant's path, and said, “Gun. He's got a gun.”
Defendant then exited Belk, walked down the sidewalk for
approximately thirty feet and then proceeded into the parking lot,
running between cars. Allen and Reece pursued defendant, butremained a distance of twenty feet away out of concern for their
safety. Defendant's hands remained in his pockets the entire time
he was running. Defendant ran toward Independence Boulevard.
Sergeant Brian Pettuce of the Wilmington Police Department was
in the vicinity when the 911 dispatch reported that a shoplifting
involving a weapon had occurred. He responded to the call and as
he drove on Independence Boulevard he observed defendant run into
the adjacent woods. The sergeant exited his vehicle, drew his
weapon, and ordered defendant to come out of the woods and show his
hands. Defendant complied with the order and was searched for a
weapon. The search revealed no weapon but several Polo shirts were
found stuffed inside defendant's coat. He then called for a K-9
unit to respond to the scene to conduct an article search. The K-9
unit recovered a loaded .22-caliber handgun from the woods. The
recovery of the handgun was filmed by a local news crew which had
responded to police reports of an armed robbery.
As an initial matter, we note that defendant's brief contains
arguments supporting only five of the original seven assignments of
error on appeal. The two omitted assignments of error are deemed
abandoned pursuant to N.C.R. App. R. 28(b)(5) (2002). We therefore
limit our review to those assignments of error properly preserved
by defendant for appeal.
The issues presented for appeal are whether the trial court
erred by (1) denying defendant's motion to dismiss the charge ofarmed robbery, or in the alternative, refusing to instruct the jury
on the lesser-included offense of common law robbery; (2) admitting
an audiotape of the 911 call into evidence; (3) admitting a
videotaped news report of the gun recovery into evidence; and (4)
denying defendant's motion to dismiss the charge of possession of
a firearm by a convicted felon.
[1] Defendant first argues that the trial court erred in
denying his motion to dismiss the charge of armed robbery.
Defendant asserts there was insufficient evidence to support the
charges. We disagree.
In ruling on a motion to dismiss based on insufficiency of
evidence, the trial court must determine whether there is
substantial evidence of each element of the offense charged. See
State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984).
“Substantial evidence is such relevant evidence as 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). When
reviewing the evidence, the trial court must consider even
incompetent evidence in the light most favorable to the
prosecution, granting the State the benefit of every reasonable
inference. See State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585,
587 (1984). Any contradictions or discrepancies in the evidence
should be resolved by the jury. See id.
In the present case, defendant was convicted of armed robbery.
By definition armed robbery is committed when “[a]ny person... who,
having in possession or with the... threatened use of any firearmsor 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... any place of business....” N.C.
Gen. Stat. § 14-87(a). Absent the firearm or dangerous weapon
element, the offense constitutes common law robbery. “The mere
possession of a firearm during the course of taking property is not
a violation of N.C. Gen. Stat. § 14-87(a); the firearm must be used
to endanger or threaten the life of a person as that element is the
essence of armed robbery.” State v. Thomas, 85 N.C. App. 319, 321,
354 S.E.2d 891, 893 (1987). “Proof of armed robbery requires that
the victim reasonably believed that the defendant possessed, or
used or threatened to use a firearm in the perpetration of the
crime.” State v. Lee, 128 N.C. App. 506, 510, 495 S.E.2d 373, 376
(1998). “The State need only prove that the defendant represented
that he had a firearm and that circumstances led the victim
reasonably to believe that the defendant had a firearm and might
use it.” Id. A defendant's threatened use of his gun is deemed
concomitant with and inseparable from his robbery attempt where the
evidence shows that (1) the gun was used to facilitate the
defendant's escape, and (2) the taking of property coupled with the
escape constitutes one continuous transaction. State v.
Cunningham, 97 N.C. App. 631, 634, 389 S.E.2d 286, 288 (1990).
This standard applies even if there is no evidence that defendant
used force or intimidation before the taking of property. Id.
Viewing the evidence in the light most favorable to the State,
there was sufficient evidence presented at trial from which a jurycould find that defendant's actions fulfilled all of the elements
of armed robbery. First, there was an unlawful taking of the Polo
shirts from the store premises. Second, defendant showed the
security officers that he possessed a gun. Third, Holt, Allen and
Reece testified that they believed defendant might use the gun, and
thus were threatened.
The evidence also supports a finding that while defendant's
use of intimidation occurred after the taking of property,
defendant's effort to avoid apprehension by store and mall security
officers is an action continuous with the taking and therefore
constitutes a part of the robbery attempt. First, the evidence
tends to show that while in the store defendant removed several
shirts from a display, concealed them within his coat, and began
walking toward the first floor store exits. Then when defendant
was approached by three security guards who physically blocked
defendant's exit to the street, defendant presented a gun and made
a threatening statement. The defendant did not testify, nor did
he present any witnesses to contradict this evidence. Thus, all of
the evidence presented permits a reasonable inference of
defendant's guilt sufficient to defeat a motion to dismiss. The
fact that only one witness to the incident actually observed the
gun in defendant's possession goes to the weight of the evidence.
In ruling on a motion to dismiss, the trial court is not permitted
to weigh the evidence. Thus, we conclude that in the light most
favorable to the state there was sufficient evidence from which the
jury could find that defendant committed armed robbery. Therefore,the trial court did not err in denying defendant's motion to
dismiss the charge of armed robbery.
Next, we address defendant's argument that the trial court
erred in refusing to instruct the jury on the lesser-included
offense of common law robbery. The North Carolina Supreme Court
has held that:
where the uncontroverted evidence is positive and
unequivocal as to each and every element of armed
robbery, and there is no evidence supporting defendant's
guilt of a lesser offense, the trial court does not err
in failing to instruct the jury on the lesser included
offense of common law robbery.
State v. Peacock, 313 N.C. 554, 562, 330 S.E.2d 190, 195 (1985).
“The sole factor determining the judge's obligation to give such an
instruction is the presence, or absence, of any evidence in the
record which might convince a rational trier of fact to convict the
defendant of a less grievous offense.” State v. Wright, 304 N.C.
349, 351, 283 S.E.2d 502, 503 (1981).
As stated supra, there was no evidence presented to support an
instruction of the lesser-included offense of common law robbery.
The trial court therefore did not err by not instructing the jury
on the lesser-included offense of common law robbery.
[2] Defendant next argues that the trial court improperly
allowed the State to introduce an audiotape of the telephone call
by Phillips and Short to 911 emergency services. We disagree.
Defendant argues that the tape was not properly authenticated
and therefore should not have been admitted into evidence.
Defendant assigned error to the failure of the trial court to apply
the foundational standard for the admission of tape recordedevidence as set out in State v. Lynch, 279 N.C. 1, 181 S.E.2d 561
(1971).
The seven-prong test established in Lynch has been superceded
by North Carolina Rule of Evidence 901, which states that “[t]he
requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent
claims.” N.C. Gen. Stat. § 8C-1, Art. 9. The Rule further states
that a voice may be identified “whether heard firsthand or through
mechanical or electronic transmission or recording, by opinion
based upon hearing the voice at any time under circumstances
connecting it with the alleged speaker.” Id. See State v. Stager,
329 N.C. 278, 315-17, 406 S.E.2d 876, 897-98 (1991); State v.
Martinez, 149 N.C. App. 553, 559-60, 561 S.E.2d 528, 532 (2002).
In State v. Rourke, this Court concluded that where two of the
parties to a 911 call identified their own voices and the voices of
two additional parties to the call on an audiotape, there was
sufficient evidence to authenticate the tape as a recording of the
911 call made during the incident in question. 143 N.C. App. 672,
676, 548 S.E.2d 188, 191 (2001). Thus, we hold that the audiotape
presented in this case was properly authenticated by the testimony
of Phillips and Short, both of whom were able to identify their own
voice and the voices of each other on the tape. The trial court
therefore did not err in overruling defendant's objection to the
admission of the tape into evidence on grounds of authentication. [3] Defendant next argues that the trial court improperly
allowed the State to introduce a video news report of the K-9 unit
recovering a gun from the scene where defendant was apprehended.
The evidence presented tends to show that a television news crew
arrived at the scene after the suspect was apprehended and while
the K-9 unit search for the weapon was in progress.
Videotapes are admissible under North Carolina law for both
illustrative and substantive purposes. Campbell v. Pitt County
Memorial Hosp., 84 N.C. App. 314, 352 S.E.2d 902, aff'd, 321 N.C.
260, 362 S.E.2d 273 (1987), overruled on other grounds by Johnson
v. Ruark Obstetrics & Assoc., 327 N.C. 283, 395 S.E.2d 85 (1990).
The North Carolina Rules of Evidence provide that “[a]ny party may
introduce a... video tape... as substantive evidence upon laying a
proper foundation and meeting other applicable evidentiary
requirements. This section does not prohibit a party from
introducing a photograph or other pictorial representation solely
for the purpose of illustrating the testimony of a witness.” N.C.
Gen. Stat. § 8-97.
In the present case, the trial transcript reflects that the
State offered the videotape for the sole purpose of illustrating
the testimony of the K-9 officer. Additionally, the trial judge
properly instructed the jury that the “videotape was being received
into evidence for the limited purpose of illustrating the
witnesses's testimony...” Therefore, the trial court did not err
in admitting the videotape into evidence. [4] Defendant's final argument is that the trial court erred
in admitting evidence of defendant's previous conviction without
properly authenticating the document. We disagree.
The evidence admitted was a ”Judgment and Commitment” of
defendant's prior conviction for conspiracy to sell and deliver
cocaine. State's witness, Detective Brad Overman (“Overman”)
testified that the document was an exact copy of the original
commitment order, that he observed the original document as it was
pulled from the Sampson County records, and witnessed the copy
produced and certified by the Clerk of Court.
North Carolina Rule of Evidence 1005 states that “[t]he
contents of an official record... if otherwise admissible, may be
proved by copy, certified as correct in accordance with Rule 902 or
testified to be correct by a witness who has compared it with the
original. N.C. Gen. Stat. §8C-1, Art. 10. The Judgment and
Committment constitutes a certified official record of defendant's
prior conviction per the seal and signature of the Deputy Clerk of
Superior Court. The trial record tends to show that Overman
testified that the Judgment and Commitment was correct. Therefore,
we conclude that the document was properly authenticated.
[5] Defendant also argues that because the possession of a
firearm occurred more than five years after the previous felony
conviction, this Court's ruling in State v. Alston precludes a
conviction on this charge. 131 N.C. App. 514, 518, 508 S.E.2d 315,
318 (1998). We disagree. Alston is superceded by the current
language of N.C. Gen. Stat. § 14-415.1 which contains no time barfor this charge. We therefore overrule defendant's final
assignment of error.
For the reasons contained herein, we hold that the trial court
did not err.
No error.
Judges Hunter and Elmore concur.
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