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.”
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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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