Opinion
No. COA02-1204
Filed 6 May 2003 This case not for publication
Appeal by defendant from judgment entered 5 March 2002 by Judge J. Richard Parker in Hertford County Superior Court. Heard in the Court of Appeals 28 April 2003.
Attorney General Roy Cooper, by Assistant Attorney General Donna B. Wojcik, for the State. Ligon and Hinton, by Lemuel W. Hinton, for defendant appellant.
Hertford County No. 00-CRS-50027.
Defendant Thomas Gilliam, III, was found guilty of robbery with a dangerous weapon and was sentenced to a minimum term of 75 months and a maximum term of 99 months.
Defendant's sole assignment of error is to the denial of his motion to dismiss at the close of all the evidence.
The State presented evidence tending to show that on 2 July 2000, defendant approached Stacey Futrell and offered to sell him some tires. Aware that his mother needed tires for her automobile, Stacey Futrell accompanied defendant to Futrell's mother's house. His mother, Sadie Futrell, consented to purchase a set of four automobile tires for the price of $150.00. Stacey Futrell asked his brother, Jerry Futrell, to accompany defendant and to examine the tires before making any payment. Mrs. Futrell gave Jerry Futrell $150.00 in cash. Jerry Futrell departed with defendant in defendant's automobile. A short distance into the journey, defendant pulled over onto the side of the road, produced a pistol, placed it on his lap, and with his finger on the trigger, commanded Jerry Futrell to place the money on the dashboard and to exit the vehicle. Jerry Futrell complied with defendant's commands.
Defendant testified and denied meeting or robbing Jerry Futrell. He testified that he arranged with Stacey Futrell to obtain a set of tires for the price of $150.00 and that Stacey Futrell gave him an advance of $75.00 to purchase the tires. When he was unable to obtain the tires, he sought to return the money the next day to Stacey Futrell but Stacey Futrell refused to accept the money.
Upon a motion to dismiss, the trial court is required to determine whether the State has presented substantial evidence of each element of the charged offense and to identify defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). The trial court must consider the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). Robbery with a dangerous weapon consists of (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. State v. Moore, 279 N.C. 455, 458, 183 S.E.2d 546, 548 (1971). To overcome a motion to dismiss a charge of robbery with a dangerous weapon, the State must produce evidence sufficient to show that the victim of an unlawful taking or attempted taking of personal property was endangered or threatened by the use or threatened use of a firearm or other dangerous weapon. State v. Joyner, 295 N.C. 55, 63, 243 S.E.2d 367, 373 (1978).
Defendant contends the evidence is insufficient because it fails to show endangerment or threat to the life of the victim. He does not dispute that the State's evidence shows defendant employed a pistol to induce Jerry Futrell to part with the money. He argues, however, that the evidence fails to show defendant threatened or endangered Jerry Futrell's life.
We must disagree. Defendant displayed the pistol and placed his finger on the trigger while telling Jerry Futrell to place the money on the dashboard and to leave. "Exhibition of a pistol while demanding money conveys the message loud and clear that the victim's life is being threatened." State v. Green, 2 N.C. App. 170, 173, 162 S.E.2d 641, 643 (1968). The fact defendant had the pistol on his lap "instead of pointing it directly at his victim did not lessen his implied threat to use it or the danger to the life of his victim had [he] not yielded." State v. Allen, 47 N.C. App. 482, 485, 267 S.E.2d 514, 516 (1980). We hold the trial court properly denied the motion to dismiss.
No error.
Judges MARTIN and CALABRIA concur.
Report per Rule 30(e).