NO. COA06-683
Appeal by defendant from a judgment entered 9 March 2006 by
Judge John W. Smith in Rowan County Superior Court. Heard in the
Court of Appeals 24 January 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Angel E. Gray, for the State.
William B. Gibson for defendant.
BRYANT, Judge.
Audrey Denise Hill (defendant) appeals from a judgment entered
9 March 2006 consistent with a jury verdict finding her guilty of
robbery with a dangerous weapon and sentencing her to 103 to 133
months imprisonment.
The State's evidence tended to show the following: on 12
November 2004, Ms. Rose Wright was on duty as a manager at the
Aldi's Food Store in Salisbury, North Carolina. At approximately
10:00 a.m. that morning, Ms. Wright was coming from the back of the
store when she noticed defendant and another female leaving herstore with a shopping cart full of merchandise. Ms. Wright
followed the women out into the parking lot to a blue sport utility
vehicle (SUV) which was backed into the sidewalk adjacent to the
store. When Ms. Wright approached the SUV, she noticed defendant
seated in the driver's seat and the other woman, Melanie Leach,
loading items from the shopping cart, including video games, toys,
and a computer monitor, into the back of the SUV. Ms. Wright asked
Ms. Leach if she had a receipt for the items in the shopping cart.
Ms. Leach replied that the receipt was in her purse. Ms. Wright
followed Ms. Leach to the passenger side of the vehicle. As Ms.
Leach was searching through her purse, Ms. Wright became suspicious
and walked to the rear of the SUV to take down the license number.
When she got to the rear of the SUV, Ms. Wright discovered that a
newspaper was concealing the license tag. As she removed the
newspaper, defendant got out of the SUV and came around to the rear
of the SUV to confront Ms. Wright. Defendant told Ms. Wright to
“leave my f---ing license plate alone,” and attempted to cover up
the license tag with another newspaper. While Ms. Wright and
defendant were engaged in a verbal confrontation at the rear of the
SUV, Ms. Leach slid into the driver's seat and took off. Ms.
Wright and defendant ran after the SUV. Ms. Leach circled around
in the Aldi's parking lot in the SUV and headed back towards Ms.
Wright and defendant. Defendant shoved Ms. Wright to the ground.
Ms. Leach swerved the SUV within four to six inches of Ms. Wright
who remained on the ground. Defendant ran after the SUV and jumpedin the back and the SUV left the parking lot headed toward Granite
Quarry.
Another customer, Mr. Ernest Smith, had been sitting in his
car in the Aldi's parking lot during the entire episode. After
seeing defendant shove Ms. Wright to the ground, he ran over to see
if she was all right and waited for the police to arrive. Mr.
Smith reported to Officer Lanier of the Salisbury Police Department
that he had seen defendant and Ms. Leach exit the Aldi's store with
a shopping cart full of merchandise. He watched the women throw
the merchandise into a blue SUV. He witnessed the verbal
confrontation between Ms. Wright and defendant, then he saw the SUV
circle around the parking lot. He saw defendant shove Ms. Wright
to the ground and the SUV swerve towards Ms. Wright. Mr. Smith,
“thought she was going to try to hit her.” Defendant jumped in the
back of the SUV and it “took off []out of the parking lot.”
Ms. Wright recorded the license number on one of the
newspapers defendant had used to cover the tag and gave it to a
police officer who responded to the scene. Officer Lanier ran the
license tag number recorded by Ms. Wright. The license tag number
came back as being registered to a 1996 Ford Explorer owned by
defendant. Defendant was taken into custody by the Salisbury
Police Department on 19 November 2005. After being advised of her
Miranda rights, defendant voluntarily gave a written statement to
Officer Lanier. In describing her attempts to get into the SUV
after pushing Ms. Wright to the ground she noted, “I ran to the
vehicle to get in, but Melanie had the doors locked, so she drovearound the bank parking lot and circled around and that's when I
jumped in.” Defendant continued by stating, “so I jumped in and as
we sped off some of the merchandise hit the ground ... we headed
down toward Granite Quarry and went the back way.” Defendant
admitted that Ms. Leach “tried to run over the lady or run the lady
over,” in the Aldi's parking lot.
On 3 January 2005, defendant was indicted by the Rowan County
Grand Jury for the crime of robbery with a dangerous weapon. The
case was called for trial during the 6 March 2006 Criminal Session
of the Superior Court of Rowan County. On 8 March 2006, a jury
convicted defendant of robbery with a dangerous weapon. On 9 March
2006, Judge John W. Smith entered judgment and sentenced defendant
to 103 to 133 months imprisonment. Defendant appeals.
________________________
Defendant appeals whether the trial court erred by denying her
motion to dismiss the robbery with a dangerous weapon charge based
on insufficiency of the evidence. Defendant argues there was
insufficient evidence: (1) of the use of a dangerous weapon to
endanger the life of another, (2) that defendant acted in concert
with Ms. Leach who was driving the SUV, and (3) that the use of a
dangerous weapon was so joined in time to the taking of the
property as to be part of one continuous transaction. For the
following reasons, we disagree with defendant's contentions and
find defendant received a trial free from error.
In reviewing the denial of a defendant's motion to dismiss,
the Court determines only “whether there is substantial evidence ofeach essential element of the offense charged and of the defendant
being the perpetrator of the offense.”
State v. Owen, 159 N.C.
App. 204, 206, 582 S.E.2d 689, 690 (2003) (quotation omitted). The
Court must consider the evidence in the light most favorable to the
State, and the State is entitled to every reasonable inference
therefrom.
State v. Weathers, 339 N.C. 441, 451 S.E.2d 266 (1994).
A defendant's motion to dismiss “is properly denied if the
evidence, when viewed in the above light, is such that a rational
trier of fact could find beyond a reasonable doubt the existence of
each element of the crime charged.”
State v. Worsley, 336 N.C.
268, 274, 443 S.E.2d 68, 70 (1994). Evidence of the defendant
which is favorable to the State is considered, but his evidence in
conflict with that of the State is not considered upon such motion.
State v. Greene, 278 N.C. 649, 180 S.E.2d 789 (1971). It is then
for the jury to decide whether the facts satisfy them beyond a
reasonable doubt that defendant is actually guilty and the court
must overrule the motion to dismiss.
State v. Styles, 93 N.C. App.
596, 379 S.E.2d 255 (1989). The elements of the crime of robbery
with a dangerous weapon are: (1) the unlawful taking or attempted
taking of personal property from another, (2) the possession, use
or threatened use of a firearm or other dangerous weapon, and (3)
danger or threat to the life of the victim. N.C. Gen. Stat. §
14-87(a) (2005);
State v. Joyner, 295 N.C. 55, 63, 243 S.E.2d 367,
373 (1978).
First, defendant argues that she could not be guilty of
robbery with a dangerous weapon because the evidence wasinsufficient to prove that “Melanie Leach had a dangerous weapon in
her possession at the time she obtained the property.” For a
conviction of the crime of robbery with a dangerous weapon, the
perpetrator, or his accomplice, must possess, use or threaten the
use of a firearm or other dangerous weapon to endanger the life of
the victim.
State v. Evans, 279 N.C. 447, 452, 183 S.E.2d 540, 544
(1971). The weapon utilized does not have to be a firearm to be a
life threatening weapon.
State v. Funderburk, 60 N.C. App. 777,
299 S.E.2d 822,
disc. review denied, 307 N.C. 699, 301 S.E.2d 392
(1983). In determining whether evidence of the use of a particular
instrument constitutes evidence of use of “any firearms or other
dangerous weapon, implement or means” within N.C.G.S. § 14-87, the
determinative question is “whether the evidence was sufficient to
support a jury finding that a person's life was in fact endangered
or threatened [by the use of that instrument].”
State v. Alston,
305 N.C. 647, 650, 290 S.E.2d 614, 616 (1982) (citation omitted).
“Whether an instrument can be considered a dangerous weapon depends
upon the nature of the instrument, the manner in which defendant
used it or threatened to use it, and in some cases the victim's
perception of the instrument and its use.”
State v. Peacock, 313
N.C. 554, 563, 330 S.E.2d 190, 196 (1985). It is well settled that
a motor vehicle, when driven in such a manner as to endanger the
life of another, may be considered to be a dangerous weapon.
State
v. Eason, 242 N.C. 59, 86 S.E.2d 774 (1955);
see also Joyner, 295
N.C. at 64, 243 S.E.2d at 373 (“An instrument which is likely to
produce death or great bodily harm under the circumstances of itsuse is properly denominated a deadly weapon.”) and
State v.
Spellman,
167 N.C. App. 374, 605 S.E.2d 696 (2004) (citations
omitted) (where defendant drove truck recklessly with disregard for
the victim's safety evidence sufficient to allow a jury to
reasonably infer that defendant “could have foreseen that death or
bodily injury would be the probable result of his actions.”).
In the case
sub judice, Ms. Leach drove a blue Ford Explorer
owned by defendant towards Ms. Wright in an attempt to, in
defendant's own words, “run the lady over.” Mr. Smith, the
customer parked in the Aldi's parking lot, testified that he saw
defendant shove Ms. Wright to the ground. He then witnessed the
SUV, driven by Ms. Leach, swerve toward Ms. Wright as she was
coming back to pick up the defendant. Mr. Smith further testified
that he thought the SUV was going to hit Ms. Wright. Ms. Leach
drove defendant's SUV in such a manner as to endanger the life of
Ms. Wright.
Joyner at 63, 243 S.E.2d at 373 (“[W]hether a person's
life was in fact endangered or threatened by defendant's
possession, use or threatened use of a dangerous weapon [is the
question], not whether the victim was scared or in fear of his
life.”). The State has presented sufficient evidence of this
element of the crime.
Defendant next argues she did not take the items from the
Aldi's store and the State did not produce sufficient evidence that
she acted in concert with Ms. Leach. If two or more persons join
in a purpose to commit robbery with a dangerous weapon, each of
them, if actually or constructively present, is guilty of thatcrime if the other commits the crime, if they shared a common plan
to commit that offense.
State v. Johnson, 164 N.C. App. 1, 12, 595
S.E.2d 176, 182 (2004).
In this case, the jury was instructed on the theory of acting
in concert. Under the theory of acting in concert, if two or more
persons join in a purpose to commit a crime, each person is
responsible for all unlawful acts committed by the other persons as
long as those acts are committed in furtherance of the crime's
common purpose.
State v. Erlewine, 328 N.C. 626, 637, 403 S.E.2d
280, 286 (1991). Therefore, the State need not present evidence
that defendant actually possessed the dangerous weapon. The State
must only show that defendant “acted in concert to commit robbery
and that his co-defendant used the dangerous weapon in pursuance of
that common purpose to commit robbery.”
Johnson, 164 N.C. App. at
13, 595 S.E.2d at 183. “The theory of acting in concert does not
require an express agreement between the parties. All that is
necessary is an implied mutual understanding or agreement to do the
crimes.”
State v. Giles, 83 N.C. App. 487, 350 S.E.2d 868 (1986),
cert. denied, 319 N.C. 460, 356 S.E.2d 8 (1987).
Defendant and Ms. Leach drove to the Aldi's store in
defendant's Ford Explorer. Defendant placed a newspaper over her
license plate and backed into a parking spot next to the store.
Defendant and Ms. Leach entered the store together and exited with
a shopping cart full of merchandise. While Ms. Leach was loading
the merchandise into the Explorer, defendant sat in the driver's
seat. When confronted by Ms. Wright, defendant got out of the SUVand attempted to obscure Ms. Wright's view of her license plate.
Defendant shoved Ms. Wright to the ground and jumped into the SUV
when Ms. Leach circled around the parking lot. Taken in the light
most favorable to the State, the evidence is sufficient to show
that defendant, together with Ms. Leach pursuant to a common
purpose, committed the crime of robbery with a dangerous weapon.
“[T]he temporal order of the threat or use of a dangerous
weapon and the taking is immaterial.”
State v. Cunningham, 97 N.C.
App. 631, 634, 389 S.E.2d 286, 288,
disc. review denied, 326 N.C.
802, 393 S.E.2d 905 (1990). However, there must be a “continuous
transaction in which the threat or use of the dangerous weapon and
the taking are so joined in time and circumstance as to be
inseparable.”
State v. Barnes, 125 N.C. App. 75, 78, 479 S.E.2d
236, 238,
aff'd, 347 N.C. 350, 492 S.E.2d 355 (1997) (citation and
quotation omitted). For purposes of robbery with a dangerous
weapon, the “taking is not over until after the thief succeeds in
removing the stolen property from the victim's possession.”
State
v. Sumpter, 318 N.C. 102, 111, 347 S.E.2d 396, 401 (1986).
“Property is in the legal possession of a person if it is under the
protection of that person.”
State v. Bellamy, 159 N.C. App. 143,
149, 582 S.E.2d 663, 668 (2003). “Thus, just because a thief has
physically taken an item does not mean that its rightful owner no
longer has possession of it.”
Id. at 149, 582 S.E.2d at 668.
The facts in
State v. Bellamy and
State v. Barnes are
particularly similar to those in this case. In
State v. Bellamy,
this Court held that the defendant's motion to dismiss wascorrectly denied when the State produced evidence that: (1) the
defendant ran out of a video store with two videos he had not paid
for; (2) two store employees chased the defendant from the store to
the end of the parking lot; and (3) the chase ended when the
defendant waived a pocket knife at the employees and said, “you
want a piece of this.”
Bellamy, 159 N.C. App. 143, 582 S.E.2d 663.
In
State v. Barnes, this Court held that the defendant's motion to
dismiss was correctly denied when the State produced evidence that:
(1) the defendant and his accomplice ran out of a Winn-Dixie with
ten bottles of Advil and two bottles of Tylenol; (2) Winn-Dixie
employees pursued the defendant and his accomplice outside to a car
parked on the curb; (3) the employees attempted to retrieve the
merchandise from the defendant seated in the car; (4) the defendant
cut the employee's arm with a knife and threatened him with a gun;
(5) the employee backed away and the defendants drove off in the
car.
State v. Barnes, 125 N.C. App. 75, 479 S.E.2d 236 (1997).
In the case
sub judice, defendant and her accomplice Ms.
Leach: (1) entered the Aldi's store; (2) took merchandise without
paying for it; (3) were pursued by an Aldi's employee, Ms. Wright,
into the parking lot; (4) where the chase ended when defendant
shoved Ms. Wright to the ground and Ms. Leach attempted to run over
her with the SUV. The assault with the SUV on Ms. Wright after
being pushed to the ground by defendant was made in an attempt to
end Ms. Wright's pursuit of the merchandise taken from the Aldi's
store. Even though Ms. Leach was circling in the SUV, she never
left the premises of the common parking lot between the Aldi'sstore and the adjacent bank. This evidence tended to show one
continuous transaction where the use or threatened use of a
dangerous weapon was so joined in time and circumstances with the
taking as to be inseparable.
State v. Hope, 317 N.C. 302, 306, 345
S.E.2d 361, 364 (1986). Therefore, the State presented sufficient
evidence to permit a rational trier of fact to find beyond a
reasonable doubt that the defendant in this case committed the
offense of robbery with a dangerous weapon.
No error.
Judges MCGEE and ELMORE concur.
*** Converted from WordPerfect ***