An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 December 2005
STATE OF NORTH CAROLINA
v. Stanly County
No. 01 CRS 52027
MERVIN D. HINSON, II
Appeal by defendant from judgment entered 25 April 2002 by
Judge Christopher Collier in Stanly County Superior Court. Heard
in the Court of Appeals
2 December 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General Ted R. Williams, for the State.
Parish & Cooke, by James R. Parish, for defendant-appellant.
Mervin D. Hinson, II (defendant) appeals from judgment
entered after a jury found him to be guilty of robbery with a
dangerous weapon. We find no error.
The State's evidence tended to show on 2 October 2001, Johnnie
Hatley (Hatley) was working at the Fast Stop Number 2 convenience
store in New London, North Carolina. Hatley owned and operated the
store. After the store closed around 1:00 a.m., Hatley went out of
and locked the front door and activated the security alarm. As he
did so, he heard a voice. Hatley turned around and saw a person
holding a gun in his hand. The person was wearing a dark toboggan,
dark coat, and a red cloth on his face. The person asked Hatley where the money was and Hatley told him it was in the store. The
man replied, Let's get it. They entered the store and the robber
told Hatley to place all of the money in a bag. In addition to the
money, the bag contained credit card receipts and checks. Both
Hatley and the robber then left the store. The robber made Hatley
go to one side of the building while he left. Hatley called the
police. Hatley testified that he thought he recognized the voice
of the robber as belonging to defendant.
Stanly County Sheriff
Deputy Dennis Rickard (Deputy Rickard)
responded to Hatley's call. Hatley
described the suspect to Deputy
. At around 2:30 a.m., Deputy Rickard was present in the
parking lot of Hatley's store when he noticed a green Toyota Camry
slowly. Deputy Rickard testified all individuals inside
the car were looking at the store. He followed the Toyota Camry in
his vehicle and observed that one individual in the backseat was
wearing a black toboggan. Deputy Rickard pulled the Toyota Camry.
When he approached the vehicle, he also noticed the individual in
the backseat was no longer wearing a toboggan. A red cloth or
bandana was located between his feet. The individual also wore
dark clothing, which matched the general description given by
Hatley. This individual was later identified as defendant.
Deputy Rickard searched defendant and found a wad of cash in
his pocket. He received permission to search the vehicle and found
a nine millimeter Glock handgun. One of the occupants of the car,
William McCaskill (McCaskill), told Deputy Rickard if this has
to do with a robbery in New London, it was Merv.
On 13 November 2001, defendant was indicted for robbery with
a dangerous weapon.
On 25 April 2002, a jury
as charged and
the trial court sentenced him to a term of seventy
to ninety-three months imprisonment.
Defendant failed to perfect
his appeal in a timely manner. We granted defendant's petition for
writ of certiorari for a belated appeal on 13 December 2004.
The sole issue on appeal is whether the trial court erred in
denying defendant's motion to dismiss the charge of robbery with a
dangerous weapon due to insufficiency of the evidence.
III. Motion to Dismiss
Defendant argues insufficient evidence was presented to
identify him as the perpetrator of the robbery to sustain the
A. Standard of Review
defendant is presumed to be innocent and the State must
prove his guilt beyond a reasonable doubt. To survive a motion to
dismiss, the State must present substantial evidence of each
essential element of the charged offense. State v. Cross, 345 N.C.
713, 716-17, 483 S.E.2d 432, 434 (1997). 'Substantial evidence is
relevant evidence that a reasonable mind might accept as adequate
to support a conclusion.' Id. at 717, 483 S.E.2d at 434 (quoting
State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)).
When reviewing a defendant's motion to dismiss a charge for
insufficiency of the evidence, [t]he trial court must consider
such evidence in the light most favorable to the State, giving theState the benefit of every reasonable inference to be drawn
therefrom. State v. Patterson, 335 N.C. 437, 450, 439 S.E.2d 578,
585 (1994) (citing State v. Vause, 328 N.C. 231, 237, 400 S.E.2d
57, 61 (1991))
B. Sufficiency of the Evidence
Hatley testified he recognized the voice of the person who
robbed him as belonging to defendant. Hatley testified that
defendant's family had been doing business with him for as long as
I [could] remember and he had many prior opportunities to hear
Hatley also told police the robber was wearing a dark toboggan
and a red cloth over his face. When Deputy Rickard spotted
defendant as a passenger in the Toyota Camry, he was wearing a dark
toboggan. Defendant was present in the immediate vicinity of the
crime shortly after it occurred. After Deputy Rickard pulled the
Toyota Camry over, he observed a red bandana or cloth lying between
McCaskill testified that on the day of the robbery he lent
defendant a gun and his mother's car. McCaskill further testified
that defendant told him he was going to rob somebody. McCaskill
testified that when defendant returned, he stated that Johnnie was
scared. Johnnie is Hatley's first name. McCaskill also testified
that defendant had a paper bag with money and receipts in it, and
defendant rolled up the money and put it in his pocket. Defendant
was found in possession of a wad of cash and a gun was found
inside the car. I
n the light most favorable to the State, a reasonable juror
could conclude on this evidence
that defendant was the perpetrator
of the offense
. The State presented sufficient evidence to sustain
This assignment of error is overruled.
The trial court did not err in denying defendant's motion to
dismiss. Sufficient evidence was presented from which a jury could
conclude defendant was the perpetrator of the offense
received a fair trial free from the error he assigned and argued.
Judges MCCULLOUGH and ELMORE concur.
Report per Rule 30(e).
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