Appeal by defendant from judgment entered 20 April 2005 by
Judge Judson D. Deramus, Jr. in Guilford County Superior Court.
Heard in the Court of Appeals 11 September 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Richard G. Sowerby, for the State.
Jon W. Myers for defendant-appellant.
Defendant Larry Wayne Webster appeals his conviction for
common law robbery, arguing that the trial court erred in denying
his motion to dismiss based on insufficiency of the evidence to
support the charge. Specifically, defendant argues that the State
failed to prove that defendant's theft was by means of fear or
violence, an element necessary for a common law robbery conviction.
We hold that the State presented sufficient evidence of
constructive force to prove this element and, therefore, uphold the
judgment of the trial court.
The State's evidence tended to show the following facts. On
1 April 2004, defendant entered a Pantry convenience store inGreensboro, North Carolina and proceeded to the beer display. On
more than 10 prior occasions, the store clerk on duty, Thomas
Sprole, had observed defendant enter the store, remove two to three
18-packs of beer from the beer display, and walk out of the store
without paying for the beer. The Pantry policy was for the store
clerk to fill out an incident report in such instances and not to
phone the police unless there was a robbery or the clerk was
threatened. Sprole testified at trial that he did not believe the
Pantry's policy was "a right rule, but that's what they got."
As he had done on the prior occasions, defendant picked up
three 18-packs of beer and headed for the door. Upon observing the
defendant picking up the beer, Sprole started to fill out the
incident report, but he was "tired of the company not doing
nothing." For that reason, when the defendant approached the door,
Sprole began to walk around the counter and "asked [defendant]
about it." Defendant responded, "[y]ou interfere, I'll shoot you."
Sprole then walked back behind the counter to fill out the incident
report and allowed defendant to leave the store with the
Sprole testified that he did not stop defendant from leaving
the store because of "what he said" and because "[i]t was against
company policy and against the orders from the police." He called
the police once defendant left the store. The next day, Sprole
identified defendant as the perpetrator from a photographic line-
Defendant was convicted of one count of common law robbery.The trial court sentenced defendant to a term of 25 to 30 months
imprisonment. Defendant has timely appealed.
In his sole argument on appeal, defendant contends the trial
court erred by denying his motion to dismiss the robbery charge.
In deciding a motion to dismiss, the trial court must determine
whether the State presented substantial evidence of each essential
element of the offense charged and of the defendant's being the
perpetrator of the offense. State v. Wardrett
, 145 N.C. App. 409,
412, 551 S.E.2d 214, 216 (2001). Substantial evidence is that
relevant evidence, which a reasonable mind might accept as adequate
to support a conclusion. State v. Williams
, 133 N.C. App. 326,
328, 515 S.E.2d 80, 82 (1999). The trial court must consider all
of the evidence in the light most favorable to the State, and the
State is entitled to all reasonable inferences that may be drawn
from the evidence. Id.
To obtain a conviction in North Carolina for common law
robbery, the State must show that the defendant unlawfully took
money or personal property from another by means of violence or
fear. State v. White
, 142 N.C. App. 201, 204, 542 S.E.2d 265, 267
(2001). The element of fear or violence distinguishes common law
robbery from the lesser offense of larceny from the person. Id.
North Carolina courts have consistently held that the crime of
common law robbery includes an assault on the person, which is "an
intentional offer or attempt by force or violence to do injury to
the person of another which causes a reasonable apprehension ofimmediate bodily harm." Id.
, 542 S.E.2d at 268 (holding that the
State offered sufficient evidence of common law robbery when the
defendant handed a clerk a note stating, "[g]ive me the money or
I'll blow your head off").
Here, defendant contends that the State failed to establish
that his actions put Sprole in fear. Common law robbery does not,
however, require the use of actual force or violence to induce
fear. The requisite force may be constructive. State v.
, 138 N.C. App. 506, 508, 531 S.E.2d 490, 492 (2000).
"Constructive force exists if the defendant, by words or gesture,
has placed the victim in such fear as is likely to create an
apprehension of danger and thereby induce [him] to part with [his]
property for the sake of [his] person." Id.
at 510, 531 S.E.2d at
493. The acts creating this apprehension of danger "must precede
or be concomitant with the taking in order for the crime of robbery
to be committed." State v. Stephenson
, 144 N.C. App. 465, 468, 551
S.E.2d 858, 861, disc. review denied
, 354 N.C. 227, 554 S.E.2d 829
In the present case, when Sprole confronted defendant about
taking the beer, the defendant told Sprole, "[y]ou interfere, I'll
shoot you." Once defendant made the threatening remark, Sprole
allowed defendant to leave the store with the beer. Thus, the
threat of force was concomitant with the removal of the beer from
the store, and a jury could reasonably conclude that the threat of
violence created a fear of danger that induced Sprole to allow
defendant to leave the store without paying for the beer. Accordingly, we conclude that the trial court properly denied
defendant's motion to dismiss.
Chief Judge MARTIN and Judge BRYANT concur.
Report per Rule 30(e).
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