NO. COA02-874
Appeal by defendant from judgments dated 2 April 2002 by Judge
Marvin K. Gray in Mecklenburg County Superior Court. Heard in the
Court of Appeals 16 April 2003.
Attorney General Roy Cooper, by Assistant Attorney General
William McBlief, for the State.
James L. Goldsmith, Jr. for defendant appellant.
BRYANT, Judge.
Rueben Antonio Evans (defendant) appeals from judgments dated
2 April 2002 entered consistent with a jury verdict finding him
guilty of robbery with a dangerous weapon and possession of a
stolen automobile.
At trial, the State presented evidence tending to show that
Timothy Blackburn (Blackburn) was transferring funds at a Western
Union in Charlotte, North Carolina at approximately 10:00 p.m. on
9 November 2000 when he was approached by an “older gentleman.”
The gentleman asked Blackburn for a ride, stating his “wife had run
out of gas.” Because it was raining, Blackburn agreed to the
request. Once outside, the older gentleman stated that two men whowere standing in front of Blackburn's truck also needed a ride.
The older gentleman left while the two men got into Blackburn's
truck: one, later identified as defendant, sat in the front
passenger seat and the other in the extended cab seat. The two men
told Blackburn to drive them to a girlfriend's home and that they
would return for the older gentleman later. Following the
directions given by defendant, Blackburn made several turns until
he arrived in a dead-end street in a housing development. At that
point, defendant “attempted to stick [a gun] to [Blackburn's] head”
and demanded money. Blackburn gave defendant his wallet. Not
satisfied with the $45.00 in cash he found in the wallet, defendant
threatened to shoot Blackburn in the knee, whereupon Blackburn also
handed over his leather organizer containing his checkbook and
other information. The man in the extended cab seat then stepped
out of the truck, walked around, and pulled Blackburn out of the
driver's seat. Defendant got out of the truck as well and
instructed Blackburn to remove his clothes. The men threw
Blackburn's clothes in the back of the truck and drove away in the
vehicle. Clad only in boxer shorts and tennis shoes, Blackburn
contacted the police.
At approximately 2:00 a.m. on 10 November 2000, Officer Mark
Allen Cliff of the Charlotte-Mecklenburg Police Department noticed
a truck parked at an odd angle in front of a handicap space in the
lot of the Pilot Gas Station at the junction of Statesville Avenue
and I-85. Based on the license tag, Officer Cliff verified that
the truck was the one stolen from Blackburn earlier that night. The only person Officer Cliff saw near the truck was defendant, who
was standing less than ten feet from the truck talking with the
occupants of another car. The motor of the truck was running and
music was playing loudly on the stereo system. When Officer Cliff
asked defendant about the truck, defendant told him the driver had
walked inside the gas station. Defendant agreed to go inside the
gas station with the officer to locate the driver. Officer Cliff
was unable to find anyone in the gas station matching the
description given to him by defendant. Because defendant, however,
did match Blackburn's vague description of the man who had stolen
the truck, the officer therefore detained him.
Between 2:00 and 2:30 a.m., the police informed Blackburn that
they had found his truck. They asked Blackburn to come to the gas
station to identify the suspect. When Blackburn arrived, he
immediately identified defendant as the man who had robbed him at
gunpoint earlier. Blackburn also identified defendant at trial.
________________________
The sole issue on appeal is whether the trial court erred in
denying defendant's motion to dismiss the charges against him due
to insufficiency of the evidence.
To withstand a motion to dismiss for insufficiency of the
evidence, the State must present substantial evidence of each
essential element of the offense charged and that the defendant was
the perpetrator of the offense.
State v. Earnhardt, 307 N.C. 62,
65-66, 296 S.E.2d 649, 651 (1982). The trial court must view the
evidence in the light most favorable to the State, giving it thebenefit of every reasonable inference that may be drawn.
State v.
Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). If a
reasonable inference of the defendant's guilt may be deduced from
the evidence, the trial court must deny the motion to dismiss and
submit the case to the jury even though the evidence may also
support an inference of innocence.
State v. Alexander, 337 N.C.
182, 187, 446 S.E.2d 83, 86 (1994).
Robbery with a Dangerous Weapon
Defendant first argues the State did not present sufficient
evidence to support the charge of robbery with a dangerous weapon.
We disagree.
Robbery with a dangerous weapon is defined as “(1) an unlawful
taking or an attempt 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. Call, 349 N.C. 382, 417,
508 S.E.2d 496, 518 (1998). In this case, defendant contends the
evidence is insufficient because (1) the “show-up” identification
by Blackburn was misleading and (2) there was no physical evidence
connecting defendant to the robbery. With respect to defendant's
first argument, we note that the record on appeal contains neither
a motion to suppress Blackburn's identification of defendant at the
gas station nor an objection to the testimony regarding the
identification. As such, defendant has waived for appeal the issue
of whether the identification was misleading.
See N.C.R. App. P.
10(b)(1);
State v. Williams, 355 N.C. 501, 547, 565 S.E.2d 609, 636(2002) (waiver of issue of whether a show-up identification was in
violation of the defendant's constitutional rights where the
defendant failed to object to the testimony introduced at trial
pertaining to the show-up identification).
As to defendant's second argument, Blackburn's identification
of defendant was sufficient to bring the case to the jury even in
the absence of any physical evidence linking defendant to the
truck. Blackburn testified he was within touching distance of the
perpetrator, could see the perpetrator's face during the robbery,
and immediately recognized defendant as the perpetrator when he saw
him at the gas station. In addition, Officer Cliff stated
defendant matched Blackburn's description of the perpetrator. This
testimony, viewed in the light most favorable to the State, is
substantial evidence to allow the jury to make a reasonable
inference of defendant's guilt.
See Powell, 299 N.C. at 99, 261
S.E.2d at 117. Accordingly, the trial court properly denied
defendant's motion to dismiss on the charge of robbery with a
dangerous weapon.
Possession of a Stolen Automobile
Defendant also contends the State presented insufficient
evidence to show he was in possession of a stolen automobile as
there was no physical evidence linking him to the stolen truck. A
person is guilty of possession of a stolen automobile if he has in
his possession a vehicle that he knows or has reason to believe was
stolen. N.C.G.S. § 20-106 (2001). With respect to the element of
possession, a motion to dismiss may be overcome by evidence thatplaces a defendant in such close juxtaposition to contraband
material as to justify a conclusion that the material is in the
defendant's possession.
State v. Harvey, 281 N.C. 1, 12-13, 187
S.E.2d 706, 714 (1972).
Viewed in the light most favorable to the State, the evidence
in this case shows defendant, the only person near the truck, was
found less than ten feet from the vehicle when it was spotted by
Officer Cliff. The truck had its motor running, and the stereo
system was turned on. Officer Cliff was unable to locate anyone in
the gas station matching defendant's description of the person whom
defendant claimed to be the driver of the truck, and Blackburn
subsequently identified defendant as the person who had stolen his
truck at gunpoint and then driven away in it. Accordingly, there
was substantial evidence for the jury to make a determination that
defendant was in possession of a stolen automobile, and the trial
court properly denied defendant's motion to dismiss this charge.
No error.
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).
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