STATE OF NORTH CAROLINA
v. Moore County
No. 02 CRS 8205
JERRARD LEE SMITH
Attorney General Roy Cooper, by Special Deputy Attorney
General Gerald K. Robbins, for the State.
Brannon Strickland, P.L.L.C., by Anthony M. Brannon, for
defendant-appellant.
CALABRIA, Judge.
Jerrard Lee Smith (“defendant”) was charged with robbery with
a dangerous weapon for the 8 July 2002 armed robbery of a Mobil
Mart on Highway 22 in Southern Pines, North Carolina. The State's
evidence tended to show: On 8 July 2002, at around 6:35 a.m., an
unidentified black male entered the Mobil Mart, brandishing a
chrome-plated handgun with notches on the back of the pistol. The
owner of the store, Michael Ellis (“Ellis”), was the only person in
the store at the time. The robber demanded that Ellis give him the
money from the cash register, whereupon Ellis did so. The robber
fled the scene with $180.00 and a carton of Newport cigarettes in
a small silver foreign sedan, traveling north on Highway 22. Investigating officers took the statements of Jimmy Cummings
(“Cummings”), an inmate in a road squad traveling north on Highway
22 in a Department of Correction (“DOC”) vehicle on the morning of
the Mobil Mart robbery. Cummings stated that at about the time of
the robbery, he noticed a black man with a gun exit the Mobil Mart
and get into the passenger side of a silver Toyota Camry, driven by
another black male. The Camry pulled behind the DOC vehicle in
which Cummings was traveling and later turned right onto Farm Life
School Road. Two days after the robbery, Cummings was working on
road squad again, digging a ditch near Farm Life School Road, when
he observed the same Camry he had seen at the Mobil Mart. Cummings
explained that he recognized the make and color of the car as well
as the vehicle's license plate number.
On 10 July 2003, Sergeant Gregory Beard (“Sergeant Beard”) of
the Moore County Sheriff's Department was patrolling on Highway
U.S. 1 going south, when he saw a silver Toyota Camry (“the Camry”)
traveling north in the Vass area. Sergeant Beard turned around and
followed the Camry into a parking lot, pulled his patrol car next
to the vehicle, and asked defendant for his driver's license and
registration. Defendant was unable to produce his driver's
license, registration, or any picture identification and told the
sergeant that his name was Gregory Clifton Smith. After
determining that the record owner of the Camry was Christa
Steadwell (“Steadwell”), Sergeant Beard went to Steadwell's
residence to investigate. In the interim, Sergeant Beard placed
defendant in the custody of the Southern Pines Police Department. Upon arriving at Steadwell's residence, Sergeant Beard and
other officers conducted a consensual search of her home. At the
outset, Steadwell advised the officers that there was a gun on the
dresser in her bedroom. The officers immediately went into the
bedroom, where they recovered a chrome-plated handgun with notches
on the back. While the officers conducted their search of
Steadwell's residence, Steadwell received a call from defendant.
Sergeant Beard moved closer to Steadwell to hear both sides of the
conversation, and he noted that defendant was concerned that the
police were speaking to Steadwell and inquired whether they were at
her house. Defendant went on to ask her whether the police had
found the gun; Steadwell told him, “yes.” Steadwell then inquired
whether the gun was “dirty,” whereupon defendant responded, “No,
but the police would try to connect it to something.” Defendant
went on to tell Steadwell that he would not be seeing daylight for
a long time, that he would be in trouble, and that he needed to
make some other phone calls.
At trial, Steadwell testified she had been dating defendant,
and she owned a 1993 silver Toyota Camry during the time period in
question. She further testified the Camry did not have valid
license plates because of an insurance lapse, but prior to the
morning of the robbery, defendant told Steadwell that he could get
her some tags. On the night immediately preceding the 8 July 2002
robbery, defendant visited Steadwell's home. Though defendant was
still in the residence when Steadwell went to bed, Steadwell
testified that the defendant and her Camry were gone when she awokeduring the night. Steadwell stated that she next saw her vehicle
on the morning of 8 July 2002, after the sun had risen. Steadwell
noticed defendant was in the Camry and that he had in his
possession a carton of Newport cigarettes, which was notable since
she buys her cigarettes by the pack and not the carton. Steadwell
testified at trial that she did not place the gun on the dresser,
had never seen the gun before that morning, and had never seen
defendant with the gun. The victim, Michael Ellis, identified the
gun recovered from Steadwell's residence as the gun used during
the 8 July 2002 robbery of his store. Ellis testified that he
recognized the gun because of its chrome plating and notches on its
back.
Defendant did not present any evidence. After hearing the
evidence and arguments of counsel, the jury found defendant guilty
of robbery with a dangerous weapon. The trial court then sentenced
defendant to a presumptive term of 103-133 months' imprisonment.
Defendant appeals.
I. Denial of Motion to Dismiss
On appeal, defendant first argues that the trial court erred
in denying his motion to dismiss based upon insufficient evidence.
Defendant does not dispute that the robbery occurred but argues
that there was insufficient evidence to show that he was the
perpetrator. We disagree.
A motion to dismiss based upon insufficient evidence is
properly denied if the State has presented substantial evidence,
either direct or circumstantial, of each essential element of theoffense. State v. Pratt, 161 N.C. App. 161, 163, 587 S.E.2d 437,
439 (2003). “Substantial evidence is that which a reasonable mind
would consider adequate to support a conclusion.” State v.
McConico, 153 N.C. App. 723, 728, 570 S.E.2d 776, 780 (2002), cert.
denied, 357 N.C. 168, 581 S.E.2d 440, disc. rev. denied, 357 N.C.
168, 581 S.E.2d 439 (2003). In considering the motion, the trial
court must view the evidence in the light most favorable to the
State, giving the State the benefit of every reasonable inference
to be drawn from the evidence, and resolving any contradictions in
favor of the State. State v. Robinson, 355 N.C. 320, 336, 561
S.E.2d 245, 256 (2002).
To obtain a conviction for robbery with a dangerous weapon,
“the State must prove '(1) the unlawful taking or 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.'” Pratt, 161 N.C. App. at 163, 587 S.E.2d at 439
(quoting State v. Wiggins, 334 N.C. 18, 35, 431 S.E.2d 755, 765
(1993)). Though there was no direct evidence that defendant
committed the offense charged, the circumstantial evidence permits
a reasonable juror to conclude that defendant was the perpetrator
of the robbery. In the light most favorable to the State, the
evidence tends to show that a black man entered the Mobil Mart at
approximately 6:35 a.m. on 8 July 2002; that he wielded a chrome-
plated handgun; that he obtained $180.00 and a carton of Newport
cigarettes; and that he fled the scene in a silver car. WhileEllis, the victim of the robbery, could not positively provide the
make of the car, he did describe it as a small silver foreign
sedan. Cummings, traveling in a DOC vehicle on the morning of the
robbery, corroborated Ellis's testimony, saying that he observed a
man come out of the Mobil Mart with a gun in his hand and get into
a Toyota Camry, license tag NYK 8833. Two days after the robbery,
Cummings again saw the silver Toyota and identified it by the make,
color, and license tag. Sergeant Beard subsequently stopped
defendant while he was driving the silver Toyota Camry that
Cummings had identified as the 8 July 2002 get-away car. Defendant
lied to Sergeant Beard about his identity, and Sergeant Beard
traced the car to Steadwell, defendant's girlfriend. Steadwell
testified that she awoke in the middle of the night on the day
proceeding the robbery and found defendant and her silver Toyota
Camry missing. She further testified that Defendant returned with
the vehicle sometime after sunrise on the morning of the robbery.
When defendant returned, Steadwell stated that she noticed a carton
of Newport cigarettes in his possession. Officers found a chrome-
plated gun that was determined to be the same gun used in the
robbery at Steadwell's residence, which Steadwell said she had
never seen before the morning of the robbery. Defendant called
Steadwell's residence while law enforcement officers were there and
was concerned about law enforcement's presence at the residence,
and upon learning law enforcement had found the gun, defendant
stated, “he would not see daylight for a long time and that hewould be in trouble and that he needed to make some other phone
calls.”
In sum, viewing the evidence in the light most favorable to
the State, giving the State every reasonable inference arising
therefrom, and resolving any and all contradictions in the State's
favor, we conclude that there was sufficient evidence to submit the
issue of defendant's guilt to the jury. Accordingly, this
assignment of error is without merit.
II. Denial of Motion for Mistrial
Defendant next argues that the trial court erred by denying
his motion for a mistrial when the jury indicated they were
deadlocked. We disagree.
It is well settled that the decision of the trial court to
grant or deny a mistrial is reviewable only for an abuse of
discretion. State v. McCarver, 341 N.C. 364, 383, 462 S.E.2d 25,
36 (1995), cert. denied, 517 U.S. 1110, 134 L. Ed. 2d 482 (1996).
A review of a motion for mistrial requires an inquiry into the
facts and attenuating circumstances, which includes whether the
trial court: indicated that it was irritated with the jury;
intimated that it would hold the jury for an unreasonable period of
time until they reached a verdict; commented as to the burdens to
the administration of justice a second trial could involve; or
commented as to potential wasted court resources. See State v.
Porter, 340 N.C. 320, 335, 457 S.E.2d 716, 723 (1995); State v.
Bussey, 321 N.C. 92, 97, 361 S.E.2d 564, 567 (1987). Guidelines for instructing a potentially deadlocked jury are
contained in G.S. 15A-1235, which states:
(c) If it appears to the judge that the jury
has been unable to agree, the judge may
require the jury to continue its deliberations
and may give or repeat the instructions
provided in subsections (a) and (b). The judge
may not require or threaten to require the
jury to deliberate for an unreasonable length
of time or for unreasonable intervals.
(d) If it appears that there is no reasonable
possibility of agreement, the judge may
declare a mistrial and discharge the jury.
N.C. Gen. Stat. § 15A-1235(c),(d)(2003).
“The purpose behind the enactment of N.C.G.S. § 15A-1235 was to
avoid coerced verdicts from jurors having a difficult time reaching
a unanimous decision.” State v. Evans, 346 N.C. 221, 227, 485
S.E.2d 271, 274-75 (1997).
In the case sub judice, the jury did not start its
deliberations until 10:33 a.m. because one of the jurors was late.
Less than two hours later, at 12:08 p.m., the jury sent
communication to the trial judge that they were “unable to come to
a unanimous decision on the guilt of Jerrard Lee Smith.” At that
time, the judge charged the jury in accordance with N.C. Gen. Stat.
15A-1235(c), as follows:
Ladies and gentlemen, your foreman has
informed me that you have so far been
unable to agree upon a verdict. The
Court wants to emphasize the fact that it
is your duty to do whatever you can to
reach a verdict. You should reason the
matter over together as reasonable men
and women and to reconcile your
differences, if you can, without the
surrender of conscientious convictions,
but no juror should surrender his or herhonest conviction as to the weight or
effect of the evidence solely because of
the opinion of his fellow jurors or for
the mere purpose of returning a verdict.
Now I will let you resume your
deliberations to see if you can reach a
verdict within some reasonable period of
time. You may retire once again, unless
you would like to have a five- or ten-
minute recess to clear the air, so to
speak.
The foreperson indicated that a break would be good, and the court
gave the jury a fifteen minute break. After the members of the
jury left for their break, the trial judge and counsel for
defendant engaged in a brief exchange, during which the judge
offered to make an inquiry as to the breakdown of jury's position.
Counsel stated that he “would rather . . . not” and went on to make
a motion for mistrial. The trial judge denied the motion stating,
“I'm not ready to find that they're hopelessly deadlocked at this
time. If they can't reach a decision within the next hour after
they return, I would think that might be an appropriate
consideration at that time.” The jury returned to deliberations at
12:28 p.m. and reached a verdict at approximately 1:30 p.m.
The record is devoid of any evidence that the trial court was
irritated with the jury or that the jury was forced to deliberate
for an unreasonable period of time. The trial court instructed the
jury to deliberate further, without commenting on any potential
costs of a second trial or additional proceedings, and the trial
court asked the jury whether they wanted a break before continuing
deliberations. Deliberations lasted only slightly less than three
hours. We conclude that the trial judge acted in accordance withN.C. Gen. Stat. 15A-1235(c) in addressing the jury, and did not
abuse his discretion in denying defendant's motion for mistrial.
No error.
Judges TIMMONS-GOODSON and LEVINSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***