State v Wilburn, (03-1347) 06/01/2004

Appeal by defendant from judgment dated 7 May 2003 by Judge Benjamin G. Alford in Superior Court, New Hanover County. Heard in the Court of Appeals 10 May 2004.

Attorney General Roy Cooper, by Assistant Attorney General K.D. Sturgis, for the State.

McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and Terri W. Sharp, for defendant-appellant.

    McGEE, Judge.

    Defendant was convicted on 7 May 2002 of robbery with a dangerous weapon in violation of N.C. Gen. Stat. § 14-87. The trial court entered judgment, finding defendant to have a prior record level II, and sentenced defendant to a minimum term of seventy-seven months and a maximum term of 102 months in prison. Defendant appeals.
    The State's evidence at trial tended to show that defendant entered a Pizza Hut restaurant in Wilmington, North Carolina on the night of 12 November 2002. Defendant a pproached the front counter where assistant manager Denise Krzyzanowicz (Krzyzanowicz) and employee Franklin Barfoot (Barfoot) (collectively employees) were standing by the cash register. Defendant put his hand in hisjacket pocket, extended it toward the employees as if pointing a gun, and demanded money. When the two employees did not respond, defendant repeated his demand, yelling, "[g]ive me your f------ money or I'll pop you." Krzyzanowicz testified that defendant "was swearing" and described him as "loud," "kind of nervous," and "staggering around a little bit[.]" Krzyzanowicz gave defendant the money from the register because she feared that "[i]f [she] didn't give him [the] money, he was going to shoot [her] or [] somebody else." Similarly, Barfoot feared that defendant "was going to pop [him]" with the gun in defendant's pocket. After taking the money, defendant ran from the Pizza Hut toward a nearby Food Lion where he was photographed by a surveillance camera.
    Defendant testified and admitted robbing the Pizza Hut but denied having a gun. He acknowledged, however, that he intended to make the employees believe he had a gun. When asked on cross- examination what he meant by threatening to "pop" Krzyzanowicz, defendant replied as follows:
            I don't think I was trying to give her the theory that I was going to pop her upside the head. I think I was trying to scare her, as you would think that I was going to try to, as I was presenting a gun.

    The trial court instructed the jury on both robbery with a dangerous weapon and the lesser included offense of common law robbery. The jury found defendant guilty of robbery with a dangerous weapon.
    Defendant first argues that the trial court erred in requiring defendant to display his teeth to Krzyzanowicz in open court inorder to confirm her identification of him as the robber. Our Court held in a case requiring a defendant to display his teeth, that "[a]s long as the demonstration is relevant to the facts to be proved or disproved in the case, such a demonstration is permissible." State v. Summers, 105 N.C. App. 420, 422-23, 413 S.E.2d 299, 300 (1992). In the case before us, Krzyzanowicz testified that she noticed that the robber's teeth were "very crooked." Accordingly, the appearance of defendant's teeth was relevant to the issue of identity, and the demonstration was permissible. This assignment of error is without merit.
    Defendant next argues that the trial court erred in overruling his objection to testimony regarding how the robbery affected Krzyzanowicz and Barfoot. Defendant specifically cites Krzyzanowicz's testimony that she was "a lot more nervous" and "more cautious about things" and that she was uncertain if she would ever be "completely comfortable" being alone at night. Similarly, defendant cites Barfoot's testimony that because of the robbery, he sometimes "really get[s] kind of nervous" when people come in and "just act suspicious[.]" Defendant argues this testimony was irrelevant and "overkill."
    Evidence is relevant and thus generally admissible if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rules 401, 402 (2003). "'Proof of armed robbery requires that the victim reasonably believed that the defendantpossessed, or used or threatened to use a firearm in the perpetration of the crime.'" State v. Bartley, 156 N.C. App. 490, 496, 577 S.E.2d 319, 323 (2003) (quoting State v. Lee, 128 N.C. App. 506, 510, 495 S.E.2d 373, 367, disc. review denied, 348 N.C. 76, 505 S.E.2d 883 (1998)). Evidence of the employees' lingering anxiety months after the robbery tended to show their actual belief that defendant had threatened them with a gun. Because their testimony was probative of an essential element of the charge at issue, it was admissible under N.C.R. Evid. 401 and 402. Thus, the trial court did not abuse its discretion by allowing the testimony.
    Defendant argues in assignments of error numbers three and six that the trial court erred in denying his motion to dismiss at the close of the evidence, his motion for a new trial, and his motion for judgment notwithstanding the verdict. Defendant asserts that the evidence was insufficient to support his conviction. Defendant notes that although Krzyzanowicz and Barfoot believed he had a gun, no gun was ever seen by the witnesses, or found by police. Defendant further points to a lack of evidence of "the exact ownership of the money or the amount of the money" stolen from the cash register. Defendant also argues that the proof at trial "did not match the allegations in the indictment" which charged him with stealing $200 in cash from "Pizza Hut D/B/A South Wilmington Pizza Hut Inc." in the presence of the employees.
    "The standard of review of a trial court's denial of a motion to set aside a verdict for lack of substantial evidence is the same as reviewing its denial of a motion to dismiss, i.e., whether thereis substantial evidence of each essential element of the crime." State v. Duncan, 136 N.C. App. 515, 520, 524 S.E.2d 808, 811 (2000). Evidence is substantial if, viewed in the light most favorable to the State, it would permit a rational juror to find defendant guilty of the essential elements of the offense beyond a reasonable doubt. State v. Jones, 303 N.C. 500, 504-05, 279 S.E.2d 835, 838 (1981). To contest a conviction based on a variance between the State's evidence and the indictment's allegations, "the defendant must show a fatal variance between the offense charged and the proof as to '[t]he gist of the offense.'" State v. Pickens, 346 N.C. 628, 646, 488 S.E.2d 162, 172 (1997) (quoting State v. Waddell, 279 N.C. 442, 445, 183 S.E.2d 644, 646 (1971) (citations omitted)). This requires defendant to "show a variance regarding an essential element of the offense." Pickens, 346 N.C. at 646, 488 S.E.2d at 172.
    "The elements of robbery with a dangerous weapon are (1) the unlawful taking or attempted taking of personal property from another; (2) the possession, use or threatened use of firearms or other dangerous weapon, implement or means; and (3) danger or threat to the life of the victim." State v. Jarrett, 137 N.C. App. 256, 262, 527 S.E.2d 693, 697 (2000). To support a conviction for robbery with a dangerous weapon, "[t]he State need only prove that the defendant represented that he had a firearm and that circumstances led the victim reasonably to believe that the defendant had a firearm and might use it." Lee, 128 N.C. App. at 510, 495 S.E.2d at 376. Moreover, "[a]s long as the evidence showsthe defendant was not taking his own property, ownership is irrelevant." State v. Jackson, 306 N.C. 642, 650, 295 S.E.2d 383, 388 (1982). Likewise, "[i]t is not necessary that the State prove the taking of the exact amount of money alleged in the indictment." State v. Kirkman, 293 N.C. 447, 460, 238 S.E.2d 456, 464 (1977).
    We find the evidence was sufficient to support the jury verdict and conformed in all material respects to the allegations in the indictment. The State's witnesses and defendant agreed that he obtained the money from the Pizza Hut cash register by gesturing as though he had a gun in his jacket pocket and threatening to "pop" the employees if they did not surrender the money. The employees believed defendant had a gun and feared that he would shoot them or someone else if they did not comply. Accordingly, the evidence supported defendant's conviction. See Bartley, 156 N.C. App. at 496-97, 577 S.E.2d at 323.
    Due to the fact that defendant's motion for a new trial also challenged the sufficiency of the evidence, it merits no independent review on appeal. See State v. Phillips, 300 N.C. 678, 687, 268 S.E.2d 452, 458 (1980).
    Defendant assigns plain error in assignments of error numbers four and five to the trial court's jury instruction pertaining to elements six and seven of robbery with a dangerous weapon, as well as to the court's re-instruction on these elements at the request of the jury. The trial court charged the jury that the State was required to prove seven essential elements of robbery with a dangerous weapon, the sixth and seventh of which were as follows:        Sixth, that the defendant had a firearm in his possession at the time he obtained the property or that it reasonably appeared to the victim that a firearm was being used, in which case you may infer that the said instrument was what the defendant's conduct represented it to be. And seventh, that the defendant obtained the property by endangering or threatening the life of that person with the firearm.
(emphasis added). During its deliberations, the jury submitted the following question to the trial court regarding armed robbery: "If we infer a firearm in # 6, does that 'establish' the firearm in # 7[?]" After consulting the parties, the trial court re-instructed the jury that
        [i]n this case, from the evidence presented, the jury may infer that the instrument was what the defendant's conduct represented it to be, but you're not required to do so. And, as it relates to element number seven, the state must prove to you that the defendant obtained the property by endangering or threatening the life of that person with the firearm.

(emphasis added). Defendant neither objected nor requested any additions or corrections to the court's instructions.
    Defendant now asserts that the trial court's instruction failed to clarify that the conflicting evidence gave rise only to a permissive inference, not a mandatory presumption, that defendant possessed a firearm during the robbery. See State v. Joyner, 312 N.C. 779, 782-83, 324 S.E.2d 841, 844 (1985). Defendant cites State v. Gibbons, 303 N.C. 484, 279 S.E.2d 574 (1981) and further argues that the trial court erred by failing to instruct or re- instruct the jury that "mere possession of the firearm does not, by itself, constitute endangering or threatening the life of thevictim."
    In order to establish plain error, defendant must show that the trial court erred and that the jury would probably have reached a different verdict but for the error. See State v. Najewicz, 112 N.C. App. 280, 294, 436 S.E.2d 132, 141 (1993), disc. review denied, 335 N.C. 563, 441 S.E.2d 130 (1994). We find no error or prejudice here. While defendant correctly states the evidence at trial created only a permissive inference that he possessed a firearm, the trial court instructed the jury accordingly. The court's use of permissive language -- i.e., the jury "may infer" that the object was a firearm -- properly denoted that the jury was permitted, but not required, to find defendant possessed a firearm based on his gestures and statements during the robbery. Cf. State v. Holder, 331 N.C. 462, 487-88, 418 S.E.2d 197, 210-11 (1992) (upholding instruction that the jury "may infer" malice as properly conveying the effect of the permissive inference arising from the evidence). The jury's conditional inquiry, "[i]f we infer a firearm," reflects its understanding of the instruction. The trial court's instruction tracked the pattern jury instruction, N.C.P.I.--Crim. 217.20 (Replacement May 2003), and was neither erroneous nor prejudicial to defendant.
    Similarly, the trial court's instruction and re-instruction made clear that the State also had to prove defendant employed the firearm to threaten or endanger the lives of the victims. Absent any evidence tending to show that defendant merely possessed a firearm but did not make use of it to facilitate the robbery, noinstruction on "mere possession" was warranted. See State v. Lane, 115 N.C. App. 25, 31, 444 S.E.2d 233, 237, disc. review denied, 337 N.C. 804, 449 S.E.2d 753 (1994) ("The crucial issue, therefore, is whether the evidence supports defendant's requested instruction.").
    No error.
    Chief Judge MARTIN and Judge BRYANT concur.
    Report per Rule 30(e).

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