State v Carter, (02-696) 04/01/2003

Appeal by defendant from judgments entered 15 January 2002 by Judge William C. Griffin, Jr. in Nash County Superior Court. Heard in the Court of Appeals 24 March 2003.

Attorney General Roy Cooper, by Assistant Attorney General Thomas B. Wood, for the State.

Brian Michael Aus for defendant-appellant.

ELMORE, Judge.

    Defendant Michael Anthony Carter was charged with two counts of robbery with a dangerous weapon. The State's evidence tended to show that at about 2:00 a.m. on 19 May 2001, defendant entered the office at Ham's Restaurant in Rocky Mount, North Carolina, where Assistant Manager Amy Kinnin and another manager, Jonathan Schatz, were filling out paperwork and counting money. Defendant was wearing a blue and white wool-like or fleece pullover shirt, and a mask over the lower part of his face, leaving only his eyes visible. Defendant was wielding a black handgun, and after pulling Kinnin off of the office safe and shoving her to the ground, demanded that Schatz place the restaurant's money in a bag. Defendant did not take any personal property from either Kinnin or Schatz. After Schatz gave defendant the money, defendant took the restaurant's cordless phone, ordered Kinnin and Schatz to remove their clothing, and instructed them to wait thirty seconds before coming out of the office. Schatz counted to twenty, put his clothes back on and ran out to the front of the restaurant to call 911 for assistance. In accordance with the instructions of the 911 dispatcher, Schatz then went to the front window of the restaurant to see if he could see the direction in which defendant was traveling. Kinnin soon followed after having also put on her clothes. Approximately twenty people were present in the restaurant, and they ran to the front window to watch. Two other restaurant employees, Michael Ingram and Keith Klein, exited the restaurant and began to follow defendant. At this time, defendant was still carrying the plastic bag containing the money taken from Ham's restaurant. Ingram and Klein followed defendant until he pulled a gun on his pursuers. When defendant threatened to shoot them if they came closer, and actually did fire a shot at them, Ingram and Klein ducked and let defendant get a greater distance away. However, they continued to follow defendant until he went around a Firestone building, whereupon a responding police officer captured and arrested defendant in the Firestone parking lot after a short pursuit on foot. Defendant was only out of the responding officer's sight for about ten to twenty seconds during the short pursuit.
    After his arrest, officers recovered a total of $4,533.29 incurrency. Some of that money was found in defendant's shirt pocket, which had a bullet hole in it, and some was recovered from a plastic bag found in the area in which defendant had been traveling. Some of the quarters recovered from defendant's pocket appeared to have been damaged by a bullet. In addition, officers located $72.50 in change, which had apparently fallen through the bullet hole in defendant's jersey pocket, and a cell phone in the grass between Ham's restaurant and another store. Officers also recovered a 9mm handgun, black in color, with one bullet in the chamber and five rounds in the magazine, on the roof of the Firestone building. Subsequently, when police took defendant back to Ham's for identification, Kinnin and Schatz positively identified him as their assailant. Defendant was still wearing the blue and white sweatshirt, but he no longer wore the mask worn during the robbery. Kinnin and Schatz also identified defendant at trial as the person who robbed Ham's restaurant on 19 May 2001. Defendant was subsequently charged with two counts of robbery with a dangerous weapon.
    Defendant did not present any evidence. A jury found defendant guilty as charged, and the trial judge entered judgment on the guilty verdicts, sentencing defendant to two concurrent terms of 103-133 months imprisonment. Defendant appeals.
    On appeal, defendant first argues, and the State concedes, that the trial court erred in failing to arrest judgment on one of the counts of robbery with a dangerous weapon. This argument is premised upon our Supreme Court's statement in State v. Beaty:“where two persons, both employees, are present during a robbery wherein the life of each is threatened incident to the theft only of property or money belonging to the employer[,] . . . a single armed robbery is committed.” 306 N.C. 491, 497, 293 S.E.2d 760, 764 (1982), overruled on other grounds by State v. White, 322 N.C. 506, 369 S.E.2d 813 (1988). See State v. Potter, 285 N.C. 238, 253, 204 S.E.2d 649, 659 (1974); see also State v. Ballard, 280 N.C. 479, 186 S.E.2d 372 (1972).
    In the instant case, the trial court, though aware of the problem, failed to arrest judgment on one of defendant's convictions. Instead, the court purported to solve the problem by treating the two convictions as one for purposes of sentencing, and “giv[ing] two concurrent sentences.” The court commented, “that will do what needs to be done.”
    We conclude that the trial court's solution was not sufficient to correct the error. Therefore, this matter must be remanded to the superior court so that the court may arrest judgment on one of defendant's convictions for robbery with a dangerous weapon.
    Defendant next argues that the trial court erred in denying his motion to dismiss. Specifically, defendant contends that the evidence was insufficient to convince a rational trier of fact that he was the perpetrator of the subject robbery with a dangerous weapon. We disagree.
    A motion to dismiss for insufficient evidence is properly denied if, viewing the evidence in the light most favorable to the State and giving the State every reasonable inference to be drawntherefrom, there is substantial evidence of each element of the offense charged. State v. Jarrett, 137 N.C. App. 256, 262, 527 S.E.2d 693, 697 (2000). Substantial evidence is that amount of relevant evidence which is adequate to convince a reasonable mind to accept a conclusion. State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001), cert. denied, __ U.S. ___, 153 L. Ed. 2d 162 (2002). To obtain a conviction for robbery with a dangerous weapon, the State must show the defendant (1) unlawfully took or attempted 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. 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).
    In the case sub judice, the evidence in the light most favorable to the State tends to show that it was indeed defendant who entered the office of Ham's restaurant and robbed, with the use of a handgun, two restaurant employees, Amy Kinnin and Jonathan Schatz, of the restaurant's proceeds. Though defendant would argue to the contrary, the identification testimony in this case was sufficient to submit the issue of defendant's guilt to the jury. Evidence tends to show that both Kinnin and Schatz had an adequate opportunity to observe defendant during the robbery, and that other store employees, who followed defendant after he fled the premises, did not lose sight of him until immediately before his capture by police officers. Moreover, when defendant was captured by theofficers, he was found to be in possession of a large amount of currency. The money found in defendant's possession, along with money found in the vicinity of his capture, totaled the amount reported stolen from the restaurant. While there may have been some differences between Kinnin's and Schatz's description of their assailant and his true appearance, such discrepancies were not sufficient to take this matter out of the province of the jury. See State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002) (“Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve[]”). Therefore, the trial court did not err in denying defendant's motion to dismiss.
    In sum, we hold that there was sufficient evidence to convict defendant of robbery with a dangerous weapon. However, this matter must be remanded to the superior court so that judgment may be arrested on one of defendant's two convictions for this offense.
    Vacated and remanded in part; no error in part.
    Judges HUNTER and BRYANT concur.
    Report per Rule 30(e).

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