An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1525

NORTH CAROLINA COURT OF APPEALS

Filed: 18 January 2005

STATE OF NORTH CAROLINA

         v.                        Moore County
                                No. 02 CRS 8205
JERRARD LEE SMITH
    

    Appeal by defendant from judgment entered 14 May 2003 by Judge Michael E. Helms in Moore County Superior Court. Heard in the Court of Appeals 3 January 2005.

    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).

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