An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-874


Filed: 6 May 2003


    v.                        Mecklenburg County
                            Nos. 00 CRS 49225 & 162332
REUBEN ANTONIO EVANS                                    

    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).

*** Converted from WordPerfect ***