Opinion
No. COA02-1024
Filed 1 April 2003 This case not for publication
Appeal by defendant from judgment entered 20 March 2002 by Judge James W. Morgan in Mecklenburg County Superior Court. Heard in the Court of Appeals 24 March 2003.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Kathryn J. Thomas, for the State. James L. Goldsmith, Jr. for defendant-appellant.
Mecklenburg County Nos. 01 CRS 145422, 01 CRS 27862.
Eugene Linkinsey Reed ("defendant") was charged with two counts of robbery with a dangerous weapon. A jury found defendant guilty of robbery with a dangerous weapon as to Mr. and Mrs. Ammons. The trial court sentenced defendant to sixty-four to eighty-six months imprisonment. Defendant appeals. We find no error.
The State's evidence tended to show that Mary Ammons, her husband William Ammons, and their infant grandson were shopping at a K-Mart located on Freedom Drive. Upon leaving the store, Mrs. Ammons strapped her grandson into his car seat and Mr. Ammons put the packages in the trunk of their vehicle. As Mrs. Ammons was about to sit down in the passenger's seat, defendant walked up to her, told her to sit down and demanded all of her money. Defendant pulled out a gun from underneath his shirt and stated, "I'm gonna blow your M-F brains out[.]" Mrs. Ammons took out her purse and gave defendant her driver's license, a credit card and $40.00.
When Mr. Ammons sat down in the vehicle, defendant asked for his wallet. Mrs. Ammons testified that her husband "didn't have anything in his [wallet]. And he gave it back to him." Mrs. Ammons stated that she was not sure whether defendant took the wallet from her husband to look in it. Mrs. Ammons further testified that neither she nor her husband consented to defendant taking the items from them. Defendant walked away and watched Mrs. Ammons drive out of the parking lot. Defendant did not present any evidence.
On appeal, defendant contends the trial court erred by denying his motion to dismiss based on insufficiency of the evidence. He specifically argues the State did not present sufficient evidence that he took any property from Mr. Ammons.
The standard for ruling on a motion to dismiss "is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense." State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585 (1994). 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 the evidence. 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. See State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
To prevail on the charge of robbery with a dangerous weapon, the State was required to prove (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. See State v. Small, 328 N.C. 175, 181, 400 S.E.2d 413, 416 (1991). "`In an indictment for robbery with firearms or other dangerous weapons (G.S. 14-87), the gist of the offense is not the taking of personal property, but a taking or attempted taking by force or putting in fear by the use of firearms or other dangerous weapon.'" State v. Mahaley, 122 N.C. App. 490, 492, 470 S.E.2d 549, 551 (1996) (quoting State v. Harris, 8 N.C. App. 653, 656, 175 S.E.2d 334, 336 (1970)).
Contrary to defendant's assertion, the State did not have to prove that defendant actually took property from Mr. Ammons. Instead, the State need only prove that defendant attempted to take personal property from Mr. Ammons. Here, Mrs. Ammons testified that defendant had a gun, demanded money from Mr. Ammons, that Mr. Ammons did not have any money in his wallet and that defendant"gave [the wallet] back to him." This evidence is sufficient for a jury to infer that defendant attempted to take personal property from Mr. Ammons by use of a firearm. Accordingly, the trial court properly denied defendant's motion to dismiss.
No error.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).