An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-728

NORTH CAROLINA COURT OF APPEALS

Filed: 15 March 2005

IN THE MATTER OF:
                            Davidson County
J. L. R .                         No. 02 J 117            
                            


    Appeal by J.L.R. from order entered 23 February 2004 by Judge Wayne L. Michael in Davidson County Juvenile Court. Heard in the Court of Appeals 1 February 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Donna B. Wojcik, for the State.

    James N. Freeman, for juvenile-appellant.

    WYNN, Judge.

    Juvenile J.L.R. appeals an adjudication and disposition finding him delinquent on charges of second-degree kidnapping, common law robbery, and simple assault. He contends that the trial court erred in denying his motions to dismiss the robbery and kidnapping charges because of insufficient evidence. After careful review, we uphold the order of the trial court.
    The facts of this matter tend to show that in November 2003, J.L.R. and three other juveniles, T.T., R.T. and B.R., went to J.W.'s house to see if J.W. wanted to go skateboarding with them. They went to the mall to skateboard and thereafter went to the house of Michael Johnson, who was an adult and a friend of B.R. (J.L.R.'s older sister). According to J.W., at the house, B.R.brushed up against him and accused him of touching her buttocks. J.W. testified that, in response to the alleged touching, J.L.R. hit him in the face and ribs. J.W. testified that B.R. also hit him in the face.
    J.W. testified that when he attempted to leave Johnson's garage, the three exit doors were blocked _ one by the others present, the second by objects in front of it, and the third by a large dog. Additionally, J.L.R. allegedly stood behind B.R., who told J.W. that if he tried to leave, he would be doing so with a limp and missing teeth. J.W. testified that approximately one to two hours passed between his expressing his desire to leave and his being allowed to leave. J.W. alleged that before he was allowed to leave, Johnson pinned him against a wall while B.R. searched his pockets and removed twenty-four to twenty-five dollars in cash. J.W. testified that, during that time, J.L.R. stood directly behind Johnson and B.R. Ultimately, Johnson's girlfriend drove J.W. home, and J.W.'s mother called the police.
    J.L.R. and several others provided testimony directly conflicting with that of J.W.: They testified, inter alia, that J.L.R. never hit J.W., they did not see anyone take money from J.W., J.L.R. was dating J.W.'s former girlfriend, and J.W. hit B.R. at Johnson's house on 3 November 2003.
    Petitions for simple assault, common law robbery, and second- degree kidnapping were issued against J.L.R. on 10 November 2003. The matters were heard in December 2003 and, as a result, J.L.R. was adjudicated delinquent on the assault, second-degreekidnapping, and robbery offenses. On 23 February 2004, a final dispositional order was entered, from which J.L.R. appeals.

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    On appeal, J.L.R. first asserts that the trial court erred by denying his motions   (See footnote 1)  to dismiss the common law robbery petition, alleging that there was insufficient evidence that he aided and abetted the alleged robbery.
    When reviewing a motion to dismiss, we view “the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.” State v. Morgan, _ N.C. _, _, 604 S.E.2d 886, 904 (2004) (citing State v. Gladden, 315 N.C. 398, 430, 340 S.E.2d 673, 693, cert. denied, 479 U.S. 871, 93 L. Ed. 2d 166, 107 S. Ct. 241 (1986)). If we find that “substantial evidence exists to support each essential element of the crime charged and that defendant was the perpetrator, it is proper for the trial court to [have denied] the motion.” Id. (citing State v. Malloy, 309 N.C. 176, 178, 305 S.E.2d 718, 720 (1983)). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984) (citing State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980)).
    “Common law robbery is the felonious, non-consensual taking ofmoney or personal property from the person or presence of another by means of violence or fear.” State v. Parker, 322 N.C. 559, 566, 369 S.E.2d 596, 600 (1988) (quotation omitted); State v. Wilson, 158 N.C. App. 235, 238, 580 S.E.2d 386, 389 (2003) (same). The State charged J.L.R. with the alleged robbery through aiding and abetting. “'All who are present at the place of a crime and are either aiding, abetting, assisting, or advising in its commission, or are present for such purpose to the knowledge of the actual perpetrator, are principals and equally guilty.'” State v. Keeter, 42 N.C. App. 642, 644-45, 257 S.E.2d 480, 482 (1979) (quoting State v. Ham, 238 N.C. 94, 97, 76 S.E.2d 346, 348 (1953)).     
        To render one who does not actually participate in the commission of a crime guilty of the offense committed, there must be some evidence tending to show that he, . . . by his conduct made it known to [the] perpetrator that he was standing by to lend assistance when and if it should become necessary.

Id.; see also, e.g., State v. Penland, 343 N.C. 634, 650, 472 S.E.2d 734, 743 (1996) (same).
    Here, according to J.W.'s testimony, Johnson pinned J.W. against a wall while B.R. searched his pockets and removed twenty- four to twenty-five dollars in cash. While J.L.R. did not actively participate in the robbery, he stood directly behind Johnson and B.R. while they committed the robbery. According to J.W., J.L.R. had previously hit him in the face and ribs, in defense of B.R., who allegedly actively engaged in the robbery. Viewed in the light most favorable to the State, giving the State the benefit of all reasonable inferences, the finder of fact could reasonably conclude that J.L.R.'s presence made it known to B.R. and Johnson thatJ.L.R. was standing by to lend assistance when and if it should become necessary.   (See footnote 2) 
    J.L.R. cites to State v. Ikard, 71 N.C. App. 283, 321 S.E.2d 535 (1984), to support his argument that his mere presence during the alleged robbery was not sufficient to constitute aiding and abetting. In Ikard, the defendant was charged with armed robbery, of which the State alleged he should be found guilty because he either acted in concert with or aided and abetted the perpetrators. This Court found that there was no evidence that the defendant, who stood twenty to twenty-five feet away from the crime scene, knew that the perpetrators of the armed robbery were armed or were going to commit the crime, and that there was no evidence that the defendant encouraged the crime or indicated he stood prepared to render assistance. Id. at 285-86, 321 S.E.2d at 537. As discussed above, the same cannot be said here, where J.W. testified that J.L.R., who had hit J.W. in the face and ribs shortly before the robbery, stood directly behind the perpetrators, one of whom was his sister.
    J.L.R. next asserts that the trial court erred by denying his motions to dismiss the kidnapping petition, alleging that there wasinsufficient evidence that he aided and abetted the alleged robbery.
    Second-degree kidnapping is the unlawful confining, restraining, or removing another person sixteen years of age or over without his/her consent if that confinement, restraint, or removal is for the purpose facilitating the commission of a felony. State v. Beatty, 347 N.C. 555, 558, 495 S.E.2d 367, 369 (1998); State v. Hall, _ N.C. App. _, _, 599 S.E.2d 104, 109 (2004) (same). Again, to be guilty as an aider or abettor, “there must be some evidence tending to show that [Juvenile], . . . by his conduct made it known to [the] perpetrator that he was standing by to lend assistance when and if it should become necessary.” Keeter, 42 N.C. App. at 644-45, 257 S.E.2d at 482.
    Here, while there may be no evidence that J.L.R. actively restrained or confined J.W. to facilitate the alleged robbery, there is evidence that J.W. expressed his desire to leave but was not allowed to do so. J.L.R. allegedly stood behind B.R., who told J.W. that if he tried to leave, he would be doing so with a limp and missing teeth. J.L.R. also stood directly behind Johnson and B.R. when Johnson pinned J.W. against a wall and B.R. searched J.W.'s pockets and removed twenty-four to twenty-five dollars in cash. According to J.W., J.L.R. had previously hit J.W. in the face and ribs, in defense of his sister B.R., who J.W. alleged actively engaged in the confinement and robbery. Viewed in the light most favorable to the State, giving the State the benefit of all reasonable inferences, the finder of fact could reasonablyconclude that J.L.R.'s presence made it known that J.L.R. was standing by to lend assistance when and if it should become necessary.
    For the reasons stated herein, the trial court did not err in denying Juvenile's motions to dismiss.
    Affirmed.
    Judges HUDSON and STEELMAN concur.
    Report per Rule 30(e).
                


Footnote: 1
    Citing to Appellate Procedure Rule 10(b), the State argued J.L.R. waived his right to appellate review of his motion to dismiss by making it only at the close of the State's case. The hearing transcript makes plain that J.L.R. made two motions to dismiss, the first at the close of the State's case and the second at the close of all evidence. J.L.R. therefore did not waive his right to review. See N.C. R. App. P. 10(b).
Footnote: 2
    As we noted in our review of the facts, there is testimony directly conflicting with that of J.W. However, in considering a motion to dismiss, the trial court may “neither weigh[] the evidence nor consider[] evidence unfavorable to the State because weighing the evidence and assessing the credibility of witnesses fall within the province of the [fact finder].” State v. Glasco, 160 N.C. App. 150, 156, 585 S.E.2d 257, 262 (2003) (citing State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002)).

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