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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA07-590

NORTH CAROLINA COURT OF APPEALS

Filed: 4 December 2007

STATE OF NORTH CAROLINA

    v.                        Guilford County
                            Nos. 05 CRS 24739
RONNIE LANE STRYKER                    05 CRS 94498

    Appeal by defendant from judgment entered 12 July 2006 by Judge Ronald E. Spivey in Guilford County Superior Court. Heard in the Court of Appeals 30 November 2007.

    Attorney General Roy Cooper, by Special Deputy Attorney General Susan K. Nichols, for the State.

    Terry F. Rose, for defendant-appellant.

    TYSON, Judge.

    Ronnie Lane Stryker (“defendant”) appeals from judgment entered after a jury found him to be guilty of two counts of robbery with a dangerous weapon pursuant to N.C. Gen. Stat. § 14-87. We find no error.

I. Background

A. State's Evidence

    The State's evidence tended to show that on the night of 15 October 2005, brothers Quinton(“Quinton”) and Brenton (“Brenton”) Lewis, students at North Carolina A&T University, were standing with a group of friends in a parking lot of Collegiate Commons in Greensboro, during North Carolina A&T's Homecoming Weekend. Thegroup stood near a Ford Explorer where defendant and several of his relatives and friends were located.
    Quinton testified defendant and Carlton Moore (“Moore”) approached him. Defendant put a gun into his side and said, “[t]ake it off,” referring to Quinton's gold chain necklace. Quinton gave defendant the necklace. Moore approached Brenton and indicated he wanted Brenton's gold chain necklace. Brenton removed his necklace and handed it to Moore. Both Quinton and Brenton testified it appeared that Moore also had a gun under his sweatshirt, though neither brother specifically saw Moore with a gun. Defendant, Moore, and the others in their group entered the Ford Explorer and left the scene.
    Quinton and Brenton reported the robbery to campus police. North Carolina A&T Police Officer Christian Tomey (“Officer Tomey”) testified he received the call regarding the robbery and located the Ford Explorer. Officer Tomey stopped the Ford Explorer in a Mrs. Winner's Restaurant parking lot.
    Greensboro Police Officer T.S. Lapse (“Officer Lapse”) stopped to assist Officer Tomey. The driver of the vehicle, Robert Browne, consented to a search of the vehicle. Officer Lapse testified defendant was sitting in the backseat of the vehicle and was wearing a gold necklace that matched the description of Quinton's and Brenton's necklaces. A search of the vehicle revealed a gun hidden beneath the front passenger seat where Eric Brewer (“Brewer”), had been sitting. No weapons were found on the individuals. Upon their arrival at the Mrs. Winner's Restaurantparking lot Quinton and Brenton identified defendant and Moore as the individuals who had robbed them. Quinton and Brenton also identified the necklaces defendant and Moore were wearing as those stolen from them earlier that day. On 7 November 2005, defendant was indicted on two counts of robbery with a dangerous weapon.
B. Defendant's Evidence

    At the close of the State's evidence, defendant moved to dismiss the charges against him based upon insufficient evidence. The trial court denied his motion. Defendant testified on his own behalf, and admitted he had committed common-law robbery by taking Quinton's gold chain, but denied possessing a gun when the robbery took place. Defendant admitted he had positioned his hand inside the waistband of his sweatshirt to make the group think he had a gun. Brewer testified he kept his gun in the Ford Explorer. Brewer stated no one else in their party that night knew he had the gun until he took it from under the seat after they left the parking lot.
    Defendant renewed his motion to dismiss at the close of all the evidence. The trial court again denied his motion. A jury found defendant to be guilty of two counts of robbery with a dangerous weapon. Defendant was sentenced in the presumptive range to one active term of a minimum of sixty-four months to a maximum of eighty-six months imprisonment. Defendant appeals.
II. Issues

    Defendant argues the trial court erred by: (1) denying his motion to dismiss at the close of the State's evidence and at theclose of all the evidence; (2) denying his objection to the trial court's jury instruction on acting in concert; and (3) sentencing him in the presumptive range in light of the evidence of mitigating factors he presented.
III. Motion to Dismiss

    Defendant argues the State failed to present substantial evidence of two of the required elements for the offense of robbery with a dangerous weapon. We disagree.
    The offense of robbery with a dangerous weapon is defined as: “Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another . . . .” N.C. Gen. Stat. § 14-87 (2005) (emphasis supplied). To support submission of this offense to the jury, the State had to prove the following elements: (1) the unlawful taking of personal property from another person; (2) the possession, use, or threatened use of a firearm or other dangerous weapon; and (3) danger or threat to the victim's life. State v. Joyner, 295 N.C. 55, 63, 243 S.E.2d 367, 373 (1978).
    The State is required to present substantial evidence tending to show each element, meaning “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Jarrett, 137 N.C. App. 256, 262, 527 S.E.2d 693, 697 (2000) (citation and quotation omitted). Defendant's motion to dismiss for lack of sufficiency of the evidence requires the courtto review the evidence in the light most favorable to the State, with all reasonable inferences to be drawn therefrom. State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002). Any contradictions or discrepancies in the evidence are for the jury to resolve and do not warrant dismissal. Id.
    Quinton testified that defendant had “[a] black gun . . . . like a semi-automatic . . . like a nine.” Brenton testified that he “saw [defendant] reaching . . . under his shirt and he put the gun to [Quinton].” Viewed in the light most favorable to the State, the State's evidence was sufficient to survive a motion to dismiss and send the matter to the jury. The trial court did not err in denying defendant's motion. This assignment of error is overruled.
IV. Jury Instructions

    Defendant next argues the trial court erred in overruling his objection to a jury instruction on acting in concert. Defendant asserts this instruction allowed the jury to sidestep the issue of whether he had a gun while committing the robbery. We disagree.
    “A defendant acts in concert with another to commit a crime when he acts in harmony or in conjunction with another pursuant to a common criminal plan or purpose.” State v. Lundy, 135 N.C. App. 13, 18, 519 S.E.2d 73, 78 (1999) (citation and quotation omitted), appeal dismissed and disc. rev. denied, 351 N.C. 365, 542 S.E.2d 651 (2000). The elements of acting in concert are: “(1) being present at the scene of the crime, and (2) acting together with another person who commits the acts necessary to constitute thecrime pursuant to a common plan or purpose.” State v. Poag, 159 N.C. App. 312, 320, 583 S.E.2d 661, 667 (citation omitted), appeal dismissed and disc. rev. denied, 357 N.C. 661, 590 S.E.2d 857 (2003).
    Defendant was present at the scene of the robbery and admitted he robbed Quinton. Evidence was also presented that: (1) defendant and Moore walked up to Quinton and Brenton; (2) defendant took the chain from Quinton; and (3) Moore looked at Brenton and said, “Yeah. You, too.” Both victims testified to defendant's possession of a firearm and that Moore also appeared to have a firearm.
    Viewed in the light most favorable to the State, the State's evidence was sufficient to support the trial court's decision to instruct the jury on an acting in concert charge. The trial court did not err in overruling defendant's objection to this instruction. This assignment of error is overruled.
V. Mitigating Factors

    Defendant argues the trial court erred in failing to find mitigating factors and not sentencing him in the mitigated range. We disagree.
    The trial court possesses the discretion to determine whether or not to impose a mitigated sentence. N.C. Gen. Stat. § 15A-1340.16 (b) (2005). It is well established that the trial court “is not required to consider evidence of aggravation or mitigation unless it deviates from the presumptive range . . . .” State v. Taylor, 155 N.C. App. 251, 267, 574 S.E.2d 58, 69 (2002)(internal citations omitted), cert. denied, 357 N.C. 65, 579 S.E.2d 572 (2003). If the trial court decides to depart from the presumptive sentence, it must make findings of fact regarding the aggravating and mitigating factors. N.C. Gen. Stat. § 15A-1340.16(c).
    While defendant presented evidence of mitigation, the trial court was not required to find the existence of any mitigating factors. Defendant was sentenced within the presumptive range authorized for the offense of robbery with a dangerous weapon. This assignment of error is overruled.
VI. Conclusion

    Viewed in the light most favorable to the State, sufficient evidence was presented for the trial court to deny defendant's motions to dismiss the charges against him. The trial court did not err in overruling defendant's objection to its jury instructions on acting in concert. The trial court did not err in failing to find mitigating factors in imposing defendant's sentence within the presumptive range. Defendant received a fair trial free from the errors he preserved, assigned, and argued. We find no error.
    No Error.
    Judges GEER and STEPHENS concur.
    Report per Rule 30(e).

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