An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1401


Filed: 1 July 2003


         v.                        Wake County
                                No. 99 CRS 67165

    On Writ of Certiorari from judgments entered 24 February 2000 by Judge Henry V. Barnette Jr., in Superior Court, Wake County. Heard in the Court of Appeals 23 June 2003.

    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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