STATE OF NORTH CAROLINA
v. Durham County
Nos. 04 CRS 40377-78
THEO CARAWAY, III
Attorney General Roy Cooper, by Assistant Attorney General
Jane L. Oliver, for the State.
Brannon Strickland, PLLC, by Marlet M. Edwards, for defendant-
appellant.
MARTIN, Chief Judge.
Defendant was indicted for two offenses of robbery with a
dangerous weapon. The State presented evidence at trial which
tended to show the following: On 2 January 2004, shortly after
midnight, defendant Theo Caraway, Sherrod Turner, Dwight Brown, and
Carlos Spane went to Miami Subs in Durham, North Carolina. When
they arrived at the restaurant,
Victor Buchanan and Brian Duke
were eating there with a friend named Ben. When Buchanan, Duke
and Ben left the restaurant, defendant, Turner, Brown and Spane
followed them. Buchanan and Duke took Ben to Holt School so that
Ben could pick up his car. After arriving in the school'sparking lot, a car pulled up behind Buchanan's car. Defendant,
Spane and Brown got out of the
car.
The four men then robbed Ben
and Buchanan at gunpoint.
Defendant was convicted of two counts of robbery with a
dangerous weapon and sentenced to a term of sixty-four to eighty-
six months imprisonment. Defendant appeals.
Defendant argues that the trial court erred by denying his
motion to dismiss for insufficiency of the evidence. However, we
decline to review the assignment of error. Defendant moved to
dismiss the case at the close of the State's evidence, but after it
was denied, presented his own evidence. Appellate Rule 10(b)(3)
states when defendant presents evidence at trial, he waives his
right on appeal to assert the trial court's error in denying the
motion to dismiss at the close of the State's evidence. State v.
Barfield, 127 N.C. App. 399, 401, 489 S.E.2d 905, 907 (1997)
(citing State v. Davis, 101 N.C. App. 409, 411, 399 S.E.2d 371, 372
(1991)). Furthermore, defendant failed to renew his motion to
dismiss at the close of the evidence. [A] defendant who fails to
make a motion to dismiss at the close of all of the evidence may
not attack on appeal the sufficiency of the evidence at trial.
State v. Spaugh, 321 N.C. 550, 552, 364 S.E.2d 368, 370 (1988).
Thus, the assignment of error is waived and need not be addressed.
Appeal dismissed.
Judges BRYANT and GEER concur.
Report per Rule 30(e).
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