Appeal by defendant from judgment entered 13 December 2005 by
Judge Andy Cromer in Forsyth County Superior Court. Heard in the
Court of Appeals 16 April 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Melissa H. Taylor, for the State.
Terry W. Alford for defendant-appellant.
Defendant Barbara Hutchens Johnson appeals from her conviction
for robbery with a dangerous weapon. On appeal, defendant argues
that the trial court erred by denying her motion to dismiss
because, according to defendant, the State failed to present
sufficient evidence to indicate that defendant was acting in
concert with her car's passenger when he robbed a nearby bicyclist.
We conclude that, when viewed in the light most favorable to the
State, substantial evidence supports the inference that defendant
acted pursuant to a common plan with her passenger to commit the
robbery. Accordingly, we find no error.
The State's evidence at trial tended to show the followingfacts. At approximately 3:30 p.m. on 20 March 2005, Bob Blackley
was riding his bicycle into a shopping center in Winston-Salem,
North Carolina when he nearly collided with a white car in the
parking lot driven by a woman, later identified as defendant, and
containing a male passenger. Following the near-collision,
defendant "threw up her hand" as if apologizing and drove out of
the shopping center.
Mr. Blackley proceeded to an ATM in the shopping center, where
he withdrew $60.00 and began to return home. As he was leaving the
shopping center, Mr. Blackley again saw the white car, still
containing defendant and her passenger, parked in front of the
shopping center's grocery store. Defendant and her passenger
"appeared to just be sitting there and talking."
About five minutes later, Mr. Blackley encountered the white
car again as he was riding home. Defendant and her passenger
motioned for Mr. Blackley to pull his bicycle over, and the
passenger asked Mr. Blackley for directions to a nearby road.
Although Mr. Blackley provided directions, defendant and her
passenger did not listen but, rather, were talking to each other.
Nevertheless, they thanked Mr. Blackley for the directions and
Mr. Blackley resumed his trip home. Several minutes later,
however, defendant and her passenger again found Mr. Blackley and
motioned for him to stop. This time, the passenger got out of the
car, walked approximately 15 feet to where Mr. Blackley was
standing, and demanded his wallet. When Mr. Blackley offered tosurrender only his money, the passenger opened his coat, displayed
a pistol in his waistband, and told Mr. Blackley, "I'm not playing
with you." Mr. Blackley turned over his wallet and the passenger
got back into the car. As defendant drove away, Mr. Blackley
observed that the white car was a Hyundai and memorized the license
plate number. He then called the police from a nearby house.
Detective Rick Shelton of the Winston-Salem Police Department
was investigating unrelated matters on 24 March 2005 when he saw a
white Hyundai pull into a driveway. Detective Shelton observed
defendant exit the vehicle and, because he was "familiar with
[defendant] from dealings in the past," the detective took down the
vehicle's license plate number. The detective subsequently
determined that defendant was not the registered owner of the
Later that day, Detective Shelton related what he had seen to
Detective Philip Cox, the lead investigator in the robbery of Mr.
Blackley. Detective Cox recognized the white Hyundai's license
plate number as the same one Mr. Blackley had provided. Detective
Cox thereafter compiled a photographic lineup that contained
defendant's photograph and asked Mr. Blackley to view it. Mr.
Blackley immediately identified defendant as the driver of the
white Hyundai, but was unable to recognize the passenger in any
other photographic lineups presented to him.
Defendant was subsequently indicted for robbery with a
dangerous weapon. Upon a plea of not guilty, the matter came to
trial at the 12 December 2005 Criminal Session of Forsyth CountySuperior Court. At the close of the State's evidence, defendant's
motion to dismiss the charge for insufficient evidence was denied,
and defendant did not present any evidence. The jury returned a
verdict finding defendant guilty of robbery with a dangerous
weapon, and the trial court sentenced her within the presumptive
range of 100 to 129 months imprisonment. Defendant timely appealed
to this Court.
Defendant's sole argument on appeal is that the trial court
erred by denying her motion to dismiss the charge for insufficient
evidence. Such a motion should be denied if there is substantial
evidence: (1) of each essential element of the offense charged and
(2) of defendant's being the perpetrator of the offense. State v.
, 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. On review of a denial of a motion to dismiss, this Court must
view the evidence in the light most favorable to the State, giving
the State the benefit of all reasonable inferences. Id.
573 S.E.2d at 869. Contradictions and discrepancies do not warrant
dismissal of the case, but rather are for the jury to resolve. Id.
The essential elements of robbery with a dangerous weapon are:
(1) an unlawful taking of personal property from the person of
another, (2) by use of a dangerous weapon, (3) whereby that
person's life is threatened. State v. Barden
, 356 N.C. 316, 351-
52, 572 S.E.2d 108, 131-32 (2002), cert. denied
, 538 U.S. 1040, 155L. Ed. 2d 1074, 123 S. Ct. 2087 (2003). See also
N.C. Gen. Stat.
§ 14-87(a) (2005) (defining robbery with firearms or other
dangerous weapons). In the present case, defendant does not
dispute that the State presented substantial evidence showing that
her passenger satisfied each of these elements, but instead argues
that the evidence was insufficient to support a finding that she
was acting in concert with her passenger.
"Under the doctrine of acting in concert, it is not necessary
that the defendant do any particular act constituting a part of the
crime charged, if [s]he is present at the scene and acting together
with another or others pursuant to a common plan or purpose to
commit the crime." State v. Taylor
, 337 N.C. 597, 608, 447 S.E.2d
360, 367 (1994). Thus, a defendant may be convicted of a crime "so
long as [s]he is present at the scene of the crime and the evidence
is sufficient to show [s]he is acting together with another who
does the acts necessary to constitute the crime pursuant to a
common plan or purpose . . . ." State v. Joyner
, 297 N.C. 349,
357, 255 S.E.2d 390, 395 (1979). For purposes of the doctrine,
"[a] person is constructively present during the commission of a
crime if he or she is close enough to be able to render assistance
if needed and to encourage the actual perpetration of the crime."
State v. Willis
, 332 N.C. 151, 175, 420 S.E.2d 158, 169 (1992).
Here, the State presented testimony tending to show that
defendant and her passenger observed Mr. Blackley withdraw cash
from an ATM machine. After talking in a nearby parking lot,
defendant drove the car while they specifically located and stoppedMr. Blackley twice, with the first time apparently being a pretext.
The second time, defendant waited in the car as her passenger,
using a pistol visibly positioned in his waistband, committed
robbery only 15 feet from the car. After her passenger returned
from committing the robbery, defendant drove them away.
When viewed in the light most favorable to the State, a
rational juror could have concluded that this testimony provided
substantial evidence that defendant was constructively present at
the scene of the crime and that she and her passenger were acting
pursuant to a common plan to stalk and rob Mr. Blackley. See,
, State v. Jones
, 157 N.C. App. 110, 115-16, 577 S.E.2d 676,
680 (2003) (sufficient evidence of acting in concert where
defendant entered store, returned to car to tell others who was in
the store, and others left car and committed a robbery while
defendant waited as a "getaway driver"); State v. Robinson
N.C. App. 520, 523-24, 524 S.E.2d 805, 808 (2000) (sufficient
evidence of acting in concert when defendant entered store with
another individual, and the other individual robbed the cashier).
This assignment of error is, therefore, overruled.
(See footnote 1)
Judges WYNN and ELMORE concur.
Report per Rule 30(e).