State v Speller, (05-1599) 07/05/2006

Appeal by defendant from judgments entered 15 July 2005 by Judge Thomas D. Haigwood in the Superior Court in Beaufort County . Heard in the Court of Appeals 26 June 2006.

Attorney General Roy Cooper, by Special Deputy Attorney General E. Burke Haywood, for the State.

Terry W. Alford, for defendant-appellant.

    HUDSON, Judge.

     On 12 July 2004, defendant Michael Lamont Speller was indicted on two counts of second degree kidnapping, two counts of robbery with a dangerous weapon, and one count of first degree burglary. The case was tried on 11 July 2005. The jury convicted defendant of robbery with a dangerous weapon, attempted robbery with a dangerous weapon and first degree burglary. The court sentenced him to consecutive terms of 77 to 102 months imprisonment. Defendant appeals. We conclude that there was no error.
    The evidence presented at trial tended to show the following: On 7 May 2004, Carl Morris (“Morris”) was living in the downstairs apartment of a house in Washington, North Carolina. Sometime around midnight, Morris noticed that the garage door was open. Hetold his wife, Goldie Morris (“Goldie”), that he was going outside to close the door. Outside, defendant approached Morris with a gun in his hand. Defendant placed the gun to Morris' head and demanded money. Morris told him that he did not have his wallet and that it was in the house. Morris then reached into his pocket, removed a dollar and some change, and defendant took the money. Defendant then grabbed Morris' shoulder, pointed the gun at him and told him to take him inside the house. Morris led defendant to the back door of the house. After Morris opened the door, defendant pushed him against a railing and entered the house. Morris then ran across the street to a neighbor's house and asked them to call 911.
    Meanwhile, Goldie had seen defendant approach Morris. She told her daughter to hide, called 911 and then went into a bedroom. While she was on the phone, defendant opened the bedroom door, pointed the gun at her and told her to give him all the money she had. She told him she did not have any money, and defendant yelled for her to “[g]ive me all the G-D money you got right now.” Again, Goldie told him she did not have any. Finally, defendant left. The next day, Morris and Goldie identified defendant from photographs as the person who tried to rob them.
     Defendant argues that the trial court erred by denying his motion to dismiss for insufficiency of the evidence. First, defendant contends that his identity as the perpetrator of the crimes was not proven by substantial evidence. Defendant claims that although both Morris and Goldie identified him as the perpetrator, their identification was “very questionable andsuspect.” Defendant contends that Morris changed his story to police, and there was no physical evidence linking him to the crime scene. Defendant further contends that his “strong alibi” proves that the identification was wrong.
    Second, defendant asserts that the State failed to prove all the elements of attempted armed robbery. Specifically, defendant claims that he withdrew before the robbery was complete. Defendant further contends that since he withdrew on his own, as opposed to some outside force stopping the criminal act, the crime of attempted robbery was not complete.
    After careful review of the record, briefs and contentions of the parties, we find no error. 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)). In the instant case, we conclude there was sufficient evidence to withstand the motion to dismiss.
    First, both Morris and Goldie “100 percent” positively identified defendant from a photographic lineup as the person who tried to rob them. Morris also identified defendant at trial. Defendant claims there were inconsistencies in their stories, and offered an alibi in an attempt to prove his innocence. However, upon a motion to dismiss, “[t]he trial court must [] resolve anycontradictions in the evidence in the State's favor. 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) . Thus, in determining 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.” State v. Scott, 356 N.C. 591, 596-97, 573 S.E.2d 866, 869 (2002). Here , we conclude that the evidence, considered in the light most favorable to the State, supports the conclusion that defendant was the person who committed the offenses.
     Second, we conclude there was sufficient evidence presented that defendant attempted to commit an armed robbery. The essential elements of robbery with a dangerous weapon are: “(1) an unlawful taking or an attempt to take personal property from the person or in the presence of another, (2) by use or threatened use of a firearm or other dangerous weapon, (3) whereby the life of a person is endangered or threatened.” State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998)(citing G.S. 14-87; State v. Small, 328 N.C. 175, 181, 400 S.E.2d 413, 416 (1991)). “The elements of attempt are an intent to commit the substantive offense and an overt act which goes beyond mere preparation but falls short of the completed offense.” State v. Squires, 357 N.C. 529, 535, 591 S.E.2d 837, 841 (2003)(citing State v. Robinson, 355 N.C. 320, 338,561 S.E.2d 245, 257, cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404 (2002)), cert. denied, 541 U.S. 1088, 159 L. Ed. 2d 252 (2004). Thus, “'[a]n attempted robbery with a dangerous weapon occurs when a person, with the specific intent to unlawfully deprive another of personal property by endangering or threatening his life with a dangerous weapon, does some overt act calculated to bring about this result.'” State v. Gillis, 158 N.C. App. 48, 56, 580 S.E.2d 32, 38 (citations omitted), disc. rev. denied, 357 N.C. 508, 587 S.E.2d 887 (2003).
    Here, the State presented evidence that defendant entered the house, pointed a gun at Goldie and demanded money from her. The pointing of the gun and demanding of money constituted sufficient evidence of an “overt act” to withstand a motion to dismiss. Defendant contends that because he voluntarily withdrew that the attempted robbery was not complete. However, “[t]he law draws no culpability distinction between voluntary or involuntary modes or causes of cessation.” State v. Miller, 344 N.C. 658, 669, 477 S.E.2d 915, 922 (1996) . “[O]nce a defendant engages in an overt act, the offense is complete, and it is too late for the defendant to change his mind.” Id. (citing State v. Davis, 340 N.C. 1, 12- 13, 455 S.E.2d 627, 632-33, cert. denied, 516 U.S. 846, 133 L. Ed. 2d 83 (1995). Accordingly, we find no error.
    No error.
    Judges MCCULLOUGH and STEELMAN concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***