An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-990
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Filed: 15 April 2003


         v.                        Wake County
                                Nos. 01 CRS 48809
GERALD ANTHONY McNEIL                    01 CRS 52444

    Appeal by defendant from judgment entered 29 August 2001 by Judge Evelyn W. Hill in Wake County Superior Court. Heard in the Court of Appeals 7 April 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Mary S. Mercer, for the State.

    Terry W. Alford for defendant-appellant.

    MARTIN, Judge.

    Defendant was charged with robbery with a dangerous weapon. In a separate bill of indictment defendant was also charged with attaining the status of habitual felon. A jury found defendant guilty of robbery with a dangerous weapon and he subsequently admitted his habitual felon status. He appeals from a judgment sentencing him to 126-161 months imprisonment.
    The evidence at trial tended to show that Muhammad Ziaulhaq and his wife Stacy owned and operated the convenience store and gas station known as Tony's Quick Mart. Defendant, whom Ms. Ziaulhaq calls “Tall Tony,” is a frequent customer of the store. On 24 May 2001, Ms. Ziaulhaq went to the store at approximately 12:00 p.m. to relieve her husband. The couple's three and one-half year olddaughter accompanied Ms. Ziaulhaq to the store.
    When defendant came into the store forty-five minutes later, Ms. Ziaulhaq walked from the potato chip aisle to the register. Defendant asked for a book of matches, which Ms. Ziaulhaq handed him. Upon defendant giving her a dime, Ms. Ziaulhaq opened the register and gave defendant a nickel in change. Defendant then brandished a knife with a six-inch blade, reached over the counter with his other hand and into the cash drawer. Ms. Ziaulhaq stepped back when she saw the knife. Defendant told Ms. Ziaulhaq, “[D]on't do it,” “I'll hurt your little girl.” Defendant took $185 in five tens and twenty dollar bills. After defendant left, Ms. Ziaulhaq called her husband and told him they had been robbed by “Tall Tony.” Ms. Ziaulhaq informed Officer Christopher Darden of the Knightdale Police Department that the robber was “Tony, the guy that frequented the store.”


    Defendant contends the trial court erred by denying his motion to dismiss based on insufficiency of the evidence. We disagree.
    The standard for ruling on a motion to dismiss "is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense." State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Patterson, 335 N.C. 437, 439 S.E.2d 578 (1994). In ruling on a motion to dismiss, the trial court must consider all of theevidence 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, 505 S.E.2d 138 (1998). “Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.” State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996). For the offense of robbery with a dangerous weapon, the State must prove the following elements: "1) the unlawful taking or 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. Wiggins, 334 N.C. 18, 35, 431 S.E.2d 755, 765 (1993).
    Here, the State's evidence tended to show that defendant, who frequented the convenience store, took cash from the store register while he brandished a knife and told Ms. Ziaulhaq “[d]on't do it,” “I'll hurt your little girl.” When viewed in the light most favorable to the State, we hold this evidence is sufficient to withstand defendant's motion to dismiss, as it was clearly sufficient to show that defendant robbed Ms. Ziaulhaq with the use of a dangerous weapon. Accordingly, the trial court properly denied defendant's motion to dismiss based on insufficiency of the evidence.
    Defendant also contends the trial court committed plain error by failing to advise him of his right to testify. Defendant did not make an assignment of error in the record on this basis.Instead, defendant includes this argument under Assignment of Error Number 2, which states: "The Trial Court's failure to instruct the jury on the defendant's right not to testify.” The scope of appellate review is limited to those issues presented by assignments of error set out in the record on appeal. N.C.R. App. P. 10(a) (2001). Because no assignment of error corresponds to the issue presented, the argument is not properly before this Court. Even if defendant had properly preserved this issue for review, it is without merit since the record shows that the trial court did examine defendant regarding his right to testify.
    No error.
    Judges McCULLOUGH and CALABRIA concur.
    Report per Rule 30(e).

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