STATE OF NORTH CAROLINA
v. Wake County
No. 99 CRS 67165
TOMMY JEROME McNEIL
Attorney General Roy Cooper, by Assistant Attorney General
Clinton C. Hicks, for the State.
Paul M. Green for defendant-appellant.
WYNN, Judge.
Following his convictions of common-law robbery and having
attained the status of habitual felon, the trial court sentenced
defendant, Tommy Jerome McNeil, to 188 to 235 months in the North
Carolina Department of Corrections. On appeal, defendant contends
the trial court erred by (1) denying his motion to dismiss, because
the evidence was insufficient, and (2) by failing to find, as a
mitigating factor, that he was a passive participant and played a
minor role in the crime. After carefully reviewing the record, we
find no error.
The State's evidence tended to show that on 3 August 1999,
Kenneth Jefferies, who had lost both legs in an automobileaccident, entered the New Bern Avenue Branch of the State
Employees' Credit Union in Raleigh to withdraw his $478 disability
check. At that time, Jefferies purchased a $138 money order and
withdrew the rest of his disability check in cash. After Jefferies
spent $13 on a hair cut, he wheeled himself to the Subway Sandwich
Shop on Martin street. Jefferies was eating a sandwich when
defendant and Linwood Martin entered the Subway shop. Jefferies
had met Martin on an intercity bus trip, but had not met defendant.
Martin sat down with Jefferies while defendant bought sandwiches at
the counter. As the two sat, Jefferies bought a $10 bag of
marijuana from Martin. Martin then asked Jefferies to go “hang
with some girls.” Jefferies declined saying that he needed to pay
his bills. Defendant and Martin left the restaurant with their
sandwiches. Thereafter, defendant drove up to the Subway shop in
a blue Chrysler convertible. Martin jumped out of the passenger
seat and told Jefferies they would take him to pay his bills.
Jefferies accepted the offer and sat in the front passenger seat
with his wheelchair behind the driver's seat. Martin sat behind
Jefferies, drinking wine.
As defendant drove the convertible, Martin reached from the
back seat and began to rifle through Jefferies' pockets. Jefferies
asked, “what's up?” and Martin replied, “it's a stick up.” Martin
then told defendant to hand him the gun. With only one hand on the
steering wheel, defendant began “rambling” and moving his left leg.
Jefferies asked defendant if he was going to shoot him and
defendant responded, “no.” After Martin took Jefferies' cash, defendant pulled over the
convertible and Martin told Jefferies to get out. Jefferies
unbuckled his seat belt, opened the car door, placed his wheelchair
cushion on the ground and sat on the cushion. Martin set the
wheelchair on the ground and got in the front seat of the
convertible. Defendant drove away while Martin counted Jefferies'
money. Jefferies obtained a partial license plate number, wheeled
himself to a phone booth, and called the police. After Raleigh
police officers apprehended defendant and Martin in the
convertible, Jefferies positively identified defendant and Martin
as the men who robbed him.
By his first argument, defendant contends the trial court
erred by denying his motion to dismiss based on insufficient
evidence. Specifically, defendant argues the State failed to
present sufficient evidence that he aided and abetted the common-
law robbery. After carefully reviewing the record, 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 that relevant evidence which a
reasonable mind might accept as adequate to support a conclusion.
State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585
(1994). In ruling on a motion to dismiss, the trial court must
consider all of the evidence in the light most favorable to the
State, and the State is entitled to all reasonable inferences whichmay be drawn from the evidence. State v. Davis, 130 N.C. App. 675,
679, 505 S.E.2d 138, 141 (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).
Common-law robbery consists of the felonious, non-consensual
taking of money or personal property from the person, or presence
of another, by means of violence or fear. State v. Smith, 305 N.C.
691, 292 S.E.2d 264 (1982). Under the principle of aiding or
abetting, a defendant may be guilty of a crime if “by word or deed,
[defendant gives] active encouragement to the perpetrator of the
crime or by his conduct [makes] it known to such perpetrator that
he [is] standing by to lend assistance when and if it should become
necessary.” State v. Ham, 238 N.C. 94, 97, 76 S.E.2d 346, 348
(1953).
Viewed in the light most favorable to the State, the evidence
discloses that defendant drove the convertible to the front of the
Subway shop and picked up Jefferies. Defendant kept driving the
convertible as Martin rifled through Jefferies' pockets. When
Martin asked for the gun, defendant made motions with his hands and
leg, indicating he was ready to assist Martin. Once Martin had
Jefferies' cash, defendant pulled over the convertible without a
request from Martin. After Jefferies exited the convertible, and
Martin hopped back into the front passenger's seat, defendant drove
off. A jury could reasonably find, based upon the foregoing
evidence, that defendant aided and abetted Martin to commit thecrime of common-law robbery. Accordingly, the trial court did not
error in denying defendant's motion to dismiss for insufficient
evidence.
By his next argument, defendant contends the trial court erred
by failing to find as a mitigating factor, pursuant to N.C. Gen.
Stat. § 15A-1340.16(e)(2), that defendant was a passive participant
and played a minor role in the commission of the crime. After
carefully reviewing the record, we disagree.
Defendant has the burden of proving by a preponderance of the
evidence the existence of mitigating factors. See N.C. Gen. Stat.
§ 15A-1340.16(a) (2002). “A trial judge is given wide latitude in
determining the existence of mitigating factors.” State v. Boyd,
148 N.C. App. 304, 309, 559 S.E.2d 1, 10 (2002). “The trial
court's failure to find a mitigating factor will not be overturned
on appeal unless the evidence in support of the factor is
uncontradicted, substantial, and there is no reason to doubt its
credibility.” State v. Foster, 101 N.C. App. 153, 159, 398 S.E.2d
664, 668 (1990).
In support of his contention that he was a passive
participant, defendant cites State v. Crandall, 83 N.C. App. 37,
348 S.E.2d 826 (1987), which explained that “[a] passive
participant can be defined as one who has an inactive part in the
commission of an offense. A minor role can be defined as one in
which the individual performs a comparatively unimportant function
in the commission of an offense.” Id. at 40, 348 S.E.2d at 829
(citations omitted). Here, however, defendant drove theconvertible while Martin rifled through the pockets of Jefferies,
who had no legs and “couldn't do nothing.” Defendant's gestures
after Martin asked for the gun indicated defendant was assisting
Martin in the taking of Jefferies' money. Finally, after
Jefferies' money was in hand, defendant pulled the convertible
over, let Jefferies out, and drove away. Having reviewed the
evidence, it can not be said that defendant's “evidence in support
of the factor is uncontradicted, substantial, and [that] there is
no reason to doubt its credibility.” Accordingly, we find no error
in the trial judge's failure to find that defendant was a passive
participant or played a minor role in the commission of the crime.
Consequently, this assignment of error is overruled.
No error.
Judges TYSON and STEELMAN concur.
Report per Rule 30(e).
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