An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1126


Filed: 6 April 2004


         v.                             Guilford County
                                     No. 02 CRS 98903

    Appeal by defendant from judgment entered 26 February 2003 by Judge L. Todd Burke in Guilford County Superior Court. Heard in the Court of Appeals 15 March 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General E. Burke Haywood, for the State.

    Winifred H. Dillon for defendant appellant.

    McCULLOUGH, Judge.

    Defendant was charged with robbery with a dangerous weapon. The State's evidence tended to show that on the evening of 25 September 2002, Gerald Norman (Norman) was working as a clerk at a Kangaroo convenience store in Greensboro. During Norman's shift, defendant came into the store on three separate occasions. On the first occasion, defendant and a female companion bought beer and gas. Defendant later returned to the store. He bought candy and spoke with Norman about job opportunities at the store.
    When defendant entered the store a third time, he had a semiautomatic gun at his right side and told Norman to get behind the register. Norman told defendant, “Just don't shoot me.” Defendant instructed Norman to empty the cash register drawer onthe counter and defendant took the money. Defendant then told Norman to “go to the safe.” After Norman informed defendant that he could not get into the safe because he was not a manager, defendant told Norman to empty his pockets. Defendant took everything from Norman's pockets, ran from the store and entered a vehicle that had just pulled up to the front door. Norman identified the vehicle as the same one that defendant and his female companion drove when they purchased beer and gas earlier in the evening.
    A jury found defendant guilty as charged. The trial court sentenced defendant to 62 to 84 months' imprisonment. Defendant appeals.
     Defendant first contends the trial court erred by denying his motion to dismiss at the end of the State's evidence. Under the North Carolina Rules of Appellate Procedure, a motion to dismiss made at the close of the State's evidence is waived if the defendant presents evidence, and a defendant must renew his motion to dismiss at the close of all the evidence in order to challenge the sufficiency of the evidence on appeal. N.C.R. App. P. 10(b)(3). Although defendant moved to dismiss the charges against him at the close of the State's evidence, he presented evidence and failed to renew his motion at the close of all the evidence. Defendant is therefore precluded from challenging the sufficiency of the evidence presented at trial. See State v. Elliott, 69 N.C. App. 89, 316 S.E.2d 632, appeal dismissed and disc. review denied, 311 N.C. 765, 321 S.E.2d 148 (1984).    Assuming arguendo that defendant preserved his sufficiency of the evidence argument, the argument is without merit. Defendant specifically argues the State failed to prove he endangered or threatened the life of the victim. Defendant correctly states that mere possession of a weapon is insufficient to support a conviction for robbery with a dangerous weapon. State v. Gibbons, 303 N.C. 484, 279 S.E.2d 574 (1981) (evidence insufficient that robbery occurred by the use or threatened use of a weapon where victim was unconscious during robbery). However, here, Norman testified that defendant came into the store a third time with a semiautomatic gun at his right side. Norman testified that after he saw the gun and defendant instructed him to get behind the counter, Norman “was shaking real bad” and told defendant, “Don't shoot me. Don't shoot me.” Norman's testimony was sufficient to submit to the jury the question of whether defendant had endangered or threatened his life by means of the use or threatened use of a gun.
    Furthermore, since defendant used a dangerous weapon, there is a mandatory presumption that the victim's life was in fact endangered or threatened. State v. Joyner, 312 N.C. 779, 782, 324 S.E.2d 841, 844 (1985). There existed sufficient evidence from which the jury could infer both that defendant possessed a gun and that the victim's life was endangered or threatened. Accordingly, the trial court properly denied the motion to dismiss.
    Defendant also contends that the trial court erred in denying defense counsel's request to reargue after the court instructed the jury on common law robbery. During the jury charge, the trialcourt instructed the jury on the substantive offense of robbery with a dangerous weapon. After a bench conference, the trial court informed the jury that he was going to modify his instruction and resumed its charge by instructing the jury on the substantive offense of common law robbery. Once the trial court completed its instructions and the jury retired for deliberations, defense counsel noted for the record that, “after Your Honor's decision to charge on common law, I asked to argue again and that request was denied.”    
    Defendant argues that the trial court's denial of defense counsel's request to reargue on the issue of defendant's guilt of common law robbery was in violation of N.C. Gen. Stat. § 15A-1234 and denied him assistance of counsel at a critical stage in the proceedings. Section 15A-1234 provides, “After the jury retires for deliberation,” the trial court "may give appropriate additional instructions to . . . [i]nstruct the jury on a point of law which should have been covered in the original instructions." N.C. Gen. Stat. § 15A-1234(a)(4) (2003)(emphasis added). The statute further provides that:
        Before the judge gives additional instructions, he must inform the parties generally of the instructions he intends to give and afford them an opportunity to be heard. The parties upon request must be permitted additional argument to the jury if the additional instructions change, by restriction or enlargement, the permissible verdicts of the jury. Otherwise, the allowance of additional argument is within the discretion of the judge.
N.C. Gen. Stat. § 15A-1234(c).
    Contrary to defendant's assertion, the instruction on common law robbery was not “additional instructions” as that term is contemplated in section 15A-1234(c) because the instructions were not given “after the jury retire[d] for deliberations.” As such, the trial court was not required to afford defense counsel an opportunity to be heard pursuant to the statute. Moreover, because the trial court was not required to allow defense counsel to reargue, defendant was not denied effective assistance of counsel.
    Assuming arguendo we read “additional instructions” as loosely as defendant would have us in his reply brief, we find no prejudicial error. The evidence put on by the State for each element of armed robbery is in such little dispute that, had the trial court failed to instruct the jury on common law robbery at all, there would have been no error.
    No error.
    Judges WYNN and HUNTER concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***