STATE OF NORTH CAROLINA
v. Guilford County
No. 02 CRS 98903
BOBBY JETER
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).
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