An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 3 October 2006
STATE OF NORTH CAROLINA
v. Onslow County
No. 04 CRS 61147
ROBERT SCOTT, JR.
Appeal by defendant from judgments entered 20 May 2005 by
Judge Jay D. Hockenbury in Onslow County Superior Court. Heard in
the Court of Appeals 2 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
John P. Barkley, for the State.
Terry W. Alford, for defendant-appellant.
Robert Scott, Jr. (defendant) appeals from judgments entered
after a jury found him to be guilty of robbery with a firearm and
conspiracy to commit robbery with a firearm. We find no error.
A. State's Evidence
The State's evidence tended to show that on the night of 11
November 2004, Clint Nuckles (Nuckles) and his brother, Thomas,
were making pizza dough in a back room of Monster's Pizza
restaurant on South Marine Boulevard in Jacksonville, North
Carolina. Nuckles saw an armed man wearing a black ski mask and
black jacket walk down the hallway of the restaurant past a walk-in
cooler. As Nuckles turned toward his brother, a second man wearinga ski mask approached, pointed an assault rifle at Nuckles and
asked, [W]here's the money? Nuckles responded that the money was
up front. Nuckles, who was part owner in the restaurant,
recognized the facial features and the voice of the second man.
The second man handed Nuckles a pillow case and told him to place
the money inside. The brothers noticed one robber was doing all
the talking and was shorter than the other robber, who was thin
and carried a short or sawed off shotgun. Both robbers wore
black gloves. Nuckles and his brother walked to the front of the
store as instructed. After Nuckles placed the money in the cash
drawer into the pillow case, the two men took the pillow case and
left the store. Nuckles called 911 on his cellular telephone.
When Jacksonville Police officers arrived, the brothers
informed police that they has been robbed by two armed black males
dressed in black. Captain Timothy Akers (Captain Akers)
broadcasted a be on the look out together with a general
description of the robbers. As Captain Akers was obtaining more
information from the brothers, he heard over the police radio that
Officer Donald Jordan (Officer Jordan), had made a traffic stop
of a vehicle which had run a red-light at the intersection of
Highway 24 and Bell Fork and was traveling about sixty miles-per-
hour in a forty-five miles-per-hour zone.
Captain Akers refocused his attention onto Nuckles, who stated
that he remembered a little bit of the characteristics of one of
the robbers and stated, I think I know the name because the guy
used to work for us. Nuckles called the restaurant's assistantmanager, Joey Redding (Redding), to assist him in remembering the
former employee's name. Nuckles told Redding that the restaurant
had just been robbed by a former employee, that he knew it was a
guy named Robert, but that he could not think of his last name.
Nuckles described the former employee as being one of the two
black guys we had hired just after [Redding] had started working
with us. Redding told Nuckles right away  that that was Robert
Scott. While Nuckles sat on a bench outside the restaurant
talking on his cellular telephone with Redding, Captain Akers
walked to his patrol vehicle, picked up his hand-held radio, and
listened to the traffic stop. Simultaneously, Captain Akers heard
Officer Jordan inquire about the driver's license check of Robert
Scott over the radio and Nuckles yelled out, Robert Scott. It
was Robert Scott. Nuckles testified at trial that Robert Scott
had worked at the restaurant on and off for about six months, was
paid in cash, and had not been placed on the store's payroll.
At the traffic stop, Officer Jordan looked in the vehicle,
recognized part of an assault rifle in the rear and discreetly
called for back-up. Officer Jordan also noticed that defendant was
wearing a black coat. Once back-up officers arrived, defendant and
Jesse Kuykendoll (Kuykendoll), the passenger, were arrested. The
officers searched the vehicle and found an assault rifle, a short
shotgun, ammunition for the guns, a pillowcase filled with cash,
three dark ski masks, and two pairs of dark gloves.
B. Defendant's Evidence
Defendant testified that two days prior to the robbery,Kuykendoll asked him if he was going to rob Monster's Pizza with
him and defendant had responded, yeah, whatever man, whatever.
Defense witness, Adrienne Lewis, confirmed defendant's response to
Kuykendoll's question and testified that defendant had responded in
a joking manner. Defendant further testified that on the night of
the robbery, gave Kuykendoll a ride, dropped him off near Monster's
Pizza, visited Crystal Northrop (Northrop) for about one hour and
returned to pick Kuykendoll up at a corner near where defendant had
dropped him off earlier.
Northrop testified that defendant came over to her house on
the night of the robbery around 10:00 p.m. and left around 11:00
p.m. Defendant testified that when he arrived at the corner,
Kuykendoll and Kuykendoll's cousin, D.J., jumped into the car and
told him to drive the damn car. Defendant stated that Kuykendoll
and D.J. were talking about having robbed Monster's Pizza.
Defendant testified that Kuykendoll was handing an assault rifle,
ski masks, gloves, and a bag back to D.J., who held a short
shotgun. Defendant told Kuykendoll and D.J. that he did not want
to be a part of the robbery. Defendant let D.J. out of the vehicle
at Hargett Street and continued driving with Kuykendoll until the
police pulled him over.
Defendant was charged with robbery with a dangerous weapon,
conspiracy to commit robbery with a dangerous weapon, two counts of
second degree kidnapping, driving while license revoked, and
failure to stop at a stoplight. At the close of the State's
evidence, defendant moved to dismiss the charges against him. Thetrial court allowed defendant's motion to dismiss the two
kidnapping charges. Defendant renewed his motion to dismiss at the
close of all the evidence, which the trial court denied. The State
voluntarily dismissed the charge of driving while license revoked.
Before submitting the case to the jury, defendant pled
responsible to the stoplight violation. A jury found defendant to
be guilty of robbery with a firearm and conspiracy to commit
robbery with a firearm. The trial court sentenced defendant to a
term of seventy-seven months to 102 months imprisonment and a
consecutive term of twenty-three to thirty-seven months
imprisonment. Defendant appeals.
Defendant argues the trial court erred by denying his motion
to dismiss the charges of robbery with a dangerous weapon and
conspiracy to commit robbery with a dangerous weapon. We disagree.
III. Motion to Dismiss
A motion to dismiss for insufficiency of the evidence should
be denied if there is substantial evidence: (1) of each essential
element of the offense charged and (2) of the defendant's being the
perpetrator of the offense. State v. Scott, 356 N.C. 591, 595, 573
S.E.2d 866, 868 (2002). Substantial evidence is that amount of
relevant evidence necessary to persuade a rational juror to accept
a conclusion. Id. at 597, 573 S.E.2d at 869.
In ruling on a
motion to dismiss, 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 which may be drawn from theevidence. State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138,
141 (1998). Any contradictions or discrepancies arising from the
evidence are properly left for the jury to resolve and do not
warrant dismissal. State v. King, 343 N.C. 29, 36, 468 S.E.2d
232, 237 (1996).
Defendant contends that his identity as the perpetrator of the
crime was not proven by substantial evidence to sustain a
conviction for robbery with a dangerous weapon. Defendant argues
that although Nuckles identified him as the perpetrator, his
identification lacks credibility because Nuckles could not prove
defendant worked at Monster's Pizza by payroll records. Defendant
further argues his alibi proves Nuckles's identification of him was
Nuckles and his brother testified two perpetrators robbed
them. Minutes after the robbery, Nuckles told Captain Akers that
he recognized one of the perpetrators as a former employee named
Robert. Once Nuckles spoke with Redding, Nuckles was able to
identify defendant as one of the perpetrators. Nuckles also
identified defendant at trial.
At the traffic stop, defendant was wearing a black coat and
driving a vehicle containing the guns, masks, gloves, and money
from the robbery. Although defendant offered an alibi in an
attempt to prove his innocence, [t]he trial court must  resolve
any contradictions in the evidence in the State's favor [upon a
motion to dismiss]. The trial court does not weigh the evidence,consider evidence unfavorable to the State, or determine any
witness' credibility. State v. Robinson, 355 N.C. 320, 336, 561
S.E.2d 245, 256 (citations omitted), cert. denied, 537 U.S. 1006,
154 L. Ed. 2d 404 (2002). Upon consideration of defendant's motion
to dismiss for insufficiency of the evidence, defendant's evidence
should be disregarded unless it is favorable to the State or does
not conflict with the State's evidence. Scott, 356 N.C. at
596-97, 573 S.E.2d at 869. Considered in the light most favorable
to the State, substantial evidence supports the jury's conclusion
that defendant was the person who committed the offense.
B. Conspiracy to Rob
Defendant was also convicted of conspiracy to commit robbery
with a firearm. Our Supreme Court has held:
A criminal conspiracy is an agreement between
two or more persons to do an unlawful act or
to do a lawful act in an unlawful way or by
unlawful means. To constitute a conspiracy it
is not necessary that the parties should have
come together and agreed in express terms to
unite for a common object: A mutual, implied
understanding is sufficient, so far as the
combination or conspiracy is concerned, to
constitute the offense.
State v. Bindyke, 288 N.C. 608, 615-16, 220 S.E.2d 521, 526 (1975)
(internal quotations and citations omitted). Defendant argues the
State failed to present substantial evidence that he entered into
an agreement to rob Monster's Pizza.
Although no direct evidence shows defendant agreed to commit
the offense charged, circumstantial evidence permits a reasonable
juror to conclude that defendant agreed to rob Monster's Pizza.
Here, both defendant and Kuykendoll allegedly donned dark ski masksand gloves, walked into Monster's Pizza wielding firearms, took the
restaurant's cash, left the restaurant together, and were stopped
by police in a vehicle with items from the robbery shortly after
the robbery. Defendant testified that Kuykendoll had asked
defendant to join him two days before the robbery. Based upon this
evidence, a jury could reasonably infer the existence of a
conspiracy between defendant and Kuykendoll to commit robbery with
a dangerous weapon. This assignment of error is overruled.
Under our standard of review, the trial court properly denied
defendant's motion to dismiss. Defendant received a fair trial
free from prejudicial errors he preserved, assigned, and argued.
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).
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