State v Lynch, (03-617) 06/01/2004

Appeal by defendant from judgment entered 27 February 2003 by Judge J. Gentry Caudill in Gaston County Superior Court. Heard in the Court of Appeals 3 May 2004.

Attorney General Roy Cooper, by Special Deputy Attorney General W. Richard Moore, for the State.

Carlton Rhodes & Carlton, by Gary C. Rhodes for defendant- appellant.

ELMORE, Judge.

    A jury found defendant guilty of robbery with a dangerous weapon and of resisting, delaying or obstructing a public official in the performance of an official duty. The trial court consolidated defendant's offenses and sentenced him to an active prison term of seventy to ninety-three months. Defendant gave notice of appeal in open court.
    The State's evidence tended to show that between the hours of 12:00 a.m. and 1:00 a.m. on 14 August 2002, Jose Manuel Diaz got out of his truck in front of his apartment building at Cedar Ridge Apartments on Herman Drive in Gastonia, North Carolina. As hewalked toward the apartment, he saw defendant and Preston Lynch approximately ten meters to his left. Diaz turned to open the door and heard people running toward him. When he looked up, defendant and Preston were beside him, brandishing handguns. Defendant put a light silver-colored pistol to Diaz's mouth, searched Diaz's pockets with his free hand, and stole his cellular phone and his wallet. After his two assailants ran away, Diaz went into his apartment and used a friend's phone to call the police.
    Gastonia Police Officers A.D. Borja (Borja) and Howard responded to the robbery report. As they turned on to Hudson Boulevard heading east, they saw defendant and Preston walking on the sidewalk toward them. After confirming the description of the robbery suspects, Borja and Howard stopped their marked patrol car parallel to the two men. Defendant and Preston looked repeatedly at the patrol car and “picked up their pace.” Borja made a U-turn and approached the suspects from behind. As he parked the car, the suspects turned around to look at the patrol car and “took off running across East Hudson.” Borja chased defendant across an open field and into a stand of woods. As he came to a creek bed, Borja heard noise coming toward him and yelled, “[S]top, police.” In response, the suspects “ran faster” away from him. After yelling a second time, Borja observed defendant running up a hill and followed him, losing sight of defendant in a residential area. Howard, who had proceeded by car south on Hartford Drive, saw defendant run between two houses. Howard exited the car and gave chase. After looking at Howard, defendant threw an object intosome nearby bushes and immediately fell to the ground on his stomach. Borja came around the side of a house and saw defendant lying prostrate with Howard standing above him. Howard found a silver Bryco .38 caliber semi-automatic pistol in the bushes beside defendant. The officers transported defendant to Diaz, who identified defendant as one of the two robbers. Diaz also identified the silver handgun as the weapon used in the robbery. As Borja was filling out paperwork at the county jail, defendant objected to “being charged with taking money when there's no money in the wallet.” Defendant told Borja that he had discarded Diaz's wallet and phone behind the apartment building.
    Defendant testified that he and Preston were walking past Cedar Ridge Apartments toward Camelot Apartments when they saw Diaz get out of his car with a twelve-pack of beer. Diaz staggered as though intoxicated, and defendant laughed. Diaz mumbled at defendant and pulled a knife. In response, defendant drew a handgun and pointed it at Diaz. Diaz dropped the knife, which defendant picked up and put in his pocket. Defendant lowered the gun but continued holding it at his side. Diaz said, “No money, no money.” Defendant replied that he did not want Diaz's money. Nevertheless, Diaz “panicked[,]” pulled his wallet from his back pocket, removed his cellular phone from its holster, and dropped the two items on the ground in front of him. Defendant picked up the wallet and cellular phone, and Diaz ran into his apartment building. Defendant looked through the wallet, which was empty, before depositing it and the phone behind Diaz's apartmentbuilding. He denied any intention to rob Diaz, claiming he moved the wallet and phone simply to make Diaz angry. Defendant admitted looking in the wallet but did not know why he had done so. He kept defendant's knife because it was already in his pocket. Defendant explained that he ran from the officers because he was smoking marijuana and did not want his mother to learn that he had borrowed her gun.
    On appeal, defendant claims the trial court erred in denying his motion to dismiss the charges at the conclusion of the evidence. A motion to dismiss is properly denied where the evidence, viewed in the light most favorable to the State, would allow a reasonable juror to find the defendant guilty of each essential element of an offense beyond a reasonable doubt. See State v. Jordan, 321 N.C. 714, 717, 365 S.E.2d 617, 619-20 (1988).     The elements of robbery with a dangerous weapon are as follows: “(1) the 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. Beaty, 306 N.C. 491, 496, 293 S.E.2d 760, 764 (1982), overruled on other grounds by State v. White, 322 N.C. 506, 369 S.E.2d 813 (1988). As set forth above, the State adduced substantial evidence that defendant took Diaz's wallet and cellular phone from his person by threatening him with a loaded, semiautomatic pistol. Diaz's testimony established that defendant stuck a gun up to his mouth, demanded money, stole his property, and fled. Hisallegations were corroborated by the testimony of Borja and Howard and by the recovery of defendant's gun.
    Likewise, the State adduced substantial evidence that defendant intentionally delayed or obstructed Officers Borja's and Howard's performance of the official duty of investigating the robbery, as prohibited by N.C. Gen. Stat. § 14-223 (2003). Testimony established that defendant ran away from the officers, twice disregarding Borja's calls to stop, and attempted to hide and dispose of evidence of his crime. The testimony of the defendant himself corroborates testimony that he fled the officers. Flight from a lawful arrest may provide probable cause to arrest an individual for violation of N.C. Gen. Stat. § 14-223, as the Court held in State v. Swift, 105 N.C. App. 550, 554, 414 S.E.2d 65, 68 (1992). Testimony of flight from a lawful arrest added to the evidence that defendant made efforts to hide or to discard evidence is substantial to defeat a motion to dismiss the charge. Accordingly, the trial court did not err in denying defendant's motion to dismiss.
    Defendant further faults the trial court for refusing to instruct the jury on misdemeanor larceny as a lesser included offense of robbery with a dangerous weapon. We find no evidence to support this lesser charge. By defendant's own account of events, it is clear Diaz parted with his wallet and cellular phone in response to defendant's brandishing of the pistol. To the extent the court found that defendant took Diaz's property with the intent to permanently deprive him thereof, defendant was guilty of robberywith a dangerous weapon, not simple larceny. The possibility that defendant formed the intent to take the property only after Diaz had thrown it to the ground does not change our analysis. “[I]t is immaterial whether the intent was formed before or after force was used upon the victim, provided that the theft and force are aspects of a single transaction.” State v. Faison, 330 N.C. 347, 359, 411 S.E.2d 143, 150 (1991) (citing State v. Green, 321 N.C. 594, 365 S.E.2d 587, cert. denied, 488 U.S. 900, 102 L. Ed. 2d 235 (1988)). Accepting defendant's testimony as true, his use of the handgun to cow Diaz “. . . [was] so joined by time and circumstances with the taking as to be part of one continuous transaction.'” State v. Brewton, 342 N.C. 875, 877-78, 467 S.E.2d 395, 397 (1996) (quoting State v. Olson, 330 N.C. 557, 566, 411 S.E.2d 592, 597 (1992)). Absent a significant “break in time or circumstances between the taking and the use of the dangerous weapon[,]” the trial court had no cause to instruct the jury on misdemeanor larceny. Id. at 878, 467 S.E.2d at 397. (citing Olson, 330 N.C. 557, 566, 411 S.E.2d 592, 597; State v. Handy, 331 N.C. 515, 529-30, 419 S.E.2d 545, 552 (1992)).
    No error.
    Judges TIMMONS-GOODSON and CALABRIA concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***