State v White, 168 NC App 409 (04-556) 02/01/2005

Appeal by defendant from judgment entered 21 August 2003 by Judge Dwight L. Cranford in Pasquotank County Superior Court. Heard in the Court of Appeals 18 January 2005.

Attorney General Roy Cooper, by Assistant Attorney General Meredith Jo Alcoke, for the State.

Angela H. Brown, for defendant-appellant.

MARTIN, Chief Judge.

    Defendant appeals from a judgment imposing an active sentence of not less than 93 months nor more than 121 months, entered upon a jury verdict finding defendant guilty of robbery with a dangerous weapon. He pled guilty to habitual felon status.     Defendant's argument on appeal is that the trial court erred when it denied his motion to dismiss for insufficient evidence. We find no error.
    The State presented evidence tending to show that on 15 September 2002, Robert Curtis Carlisle called defendant for the purpose of arranging a purchase of marijuana from defendant. Carlisle, accompanied by his two roommates, met defendant at a recreation center in Elizabeth City. Defendant entered their vehicle and directed them to drive to another location, where a mannamed “Melvin” got into the vehicle with them. Defendant directed them to drive to Elizabeth Manor, a housing project. At defendant's direction, Carlisle got out of the vehicle and walked with defendant and Melvin down a trail. Defendant struck Carlisle's head with a gun wrapped in a plastic bag and ordered Carlisle to remove all of his money from his pocket. Carlisle gave defendant all of his money, approximately $150. After taking Carlisle's money, defendant ordered him to run. Carlisle, bleeding from lacerations to his head and neck, ran back to the car. His roommates, Chris and Kirk Fisher, transported him to the police station and from there he was transported to a hospital emergency room, where he received treatment for the lacerations.
    Sergeant Ed Kirby of the Elizabeth City Police Department testified that Carlisle told him at the hospital that a man whom he identified as “Spanky” hit him over the head with a gun wrapped in plastic and took all of his money. Carlisle gave a description of Spanky and the clothes he was wearing. Carlisle's roommates gave essentially the same description. One of the roommates, Chris Fisher, indicated that he knew where Spanky lived. At Sgt. Kirby's request, Chris Fisher accompanied Sgt. Kirby to Elizabeth Manor. Fisher pointed to a man, identified as defendant, as being the assailant. Sgt. Kirby jumped out of the vehicle, identified himself as a police officer, and directed defendant and his companion, subsequently identified as “Melvin,” to get on the ground. Defendant threw a plastic grocery bag to the ground. The bag contained a pellet gun and a set of scales. The bag “seemed tohave blood on the outside of it.”
    Defendant did not present any evidence.
    Upon a motion to dismiss the trial court determines whether there is substantial evidence to establish each element of the offense charged and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). In deciding a motion to dismiss, the court must consider the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn from the evidence. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). The court must disregard contradictions and discrepancies in the evidence and leave them for resolution by a jury. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
    The essential elements of robbery with a dangerous weapon are: (1) the unlawful taking or attempted taking of personal property from another; (2) the use or threatened use of a firearm or other dangerous weapon; and (3) danger or threat to the life of the victim. State v. James, 321 N.C. 676, 686-87, 365 S.E.2d 579, 586 (1988). Of these three elements, defendant contends the evidence is insufficient to show the use or threatened use of a firearm or other dangerous weapon. He argues a pellet gun is incapable of inflicting a life-threatening injury. We disagree. Our appellate courts have held that a pistol or rifle that is used as a club, asin the present case, may be considered a deadly or dangerous weapon presenting a danger or threat to the victim's life. State v. McNatt, 342 N.C. 173, 175, 463 S.E.2d 76, 77 (1995); State v. Funderburk, 60 N.C. App. 777, 778, 299 S.E.2d 822, 823, disc. review denied, 307 N.C. 699, 301 S.E.2d 392 (1983).
    Defendant's primary argument is that the evidence is insufficient to identify him as the perpetrator of any crime committed against Carlisle. He attacks the credibility of the State's identification evidence. We reject this attack. “Once it is established that proffered evidence is competent, that evidence is entitled to be submitted to the jury for its due consideration in light of all the other evidence brought forward at trial. However, the jury remains the final arbiter of the credibility [,][p]robative force and weight.” State v. White, 298 N.C. 430, 440, 259 S.E.2d 281, 287 (1979). Thus, if there is a “reasonable possibility for observation sufficient to permit subsequent identification,” then the credibility and weight of identification testimony of a witness is to be decided by the jury. State v. Miller, 270 N.C. 726, 732, 154 S.E.2d 902, 906 (1967). This rule is subject to the single exception that a case may not be submitted to a jury when “the only evidence identifying the defendant as the perpetrator of the offense is inherently incredible because of undisputed facts, clearly established by the State's evidence, as to the physical conditions under which the alleged observation occurred.” Id. at 731, 154 S.E.2d at 905.
    Here, the identification witnesses had ample opportunity toobserve the perpetrator under conditions conducive to making an accurate identification. The crime occurred in daylight. The perpetrator of the crime rode a distance in a vehicle with the victim and the other two persons who identified defendant as the perpetrator. All of the identification witnesses gave the exact same description of the perpetrator. By his own independent investigation on the date of the incident, Sergeant Kirby found a man matching the description he had been given of the perpetrator walking in the vicinity where the crime had been committed. Chris Fisher identified this man, defendant, as the person who committed the crime. Sgt. Kirby also saw defendant throw to the ground a bloody plastic bag containing a gun.
    We conclude the foregoing evidence supported submission of the case to the jury. We overrule defendant's assignment of error.
    No error.
    Judges McCULLOUGH and CALABRIA concur.
    Report per Rule 30(e).

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