Opinion
No. COA12–301.
2012-11-6
STATE of North Carolina v. Chester Wayne DAVIS.
Attorney General Roy Cooper, by Special Deputy Attorney General Lisa G. Corbett, for the State. Kevin P. Bradley for defendant appellant.
Appeal by defendant from judgment entered 14 July 2011 by Judge Joseph E. Turner in Moore County Superior Court. Heard in the Court of Appeals 22 October 2012. Attorney General Roy Cooper, by Special Deputy Attorney General Lisa G. Corbett, for the State. Kevin P. Bradley for defendant appellant.
McCULLOUGH, Judge.
Defendant appeals from judgment entered after a jury found him guilty of attempted robbery with a firearm. We find no error.
The evidence tended to show that at approximately 3:00 a.m. on 12 January 2010, defendant knocked on the front door of Billy Joe Brown's house. Defendant told Mr. Brown that he needed a ride. Mr. Brown agreed to give defendant a ride, but told defendant he would need to get gas. They got into Mr. Brown's truck, and on the way to the gas station, defendant asked Mr. Brown to pull over. Mr. Brown pulled over to the side of the road and turned the truck off. Defendant then put a gun to Mr. Brown's head and told him to get out of the truck or he was going to kill him. Mr. Brown slid his hand down the steering wheel, got his keys, jumped out of the truck and ran.
Mr. Brown waited in the woods until he heard a vehicle coming down the road. Mr. Brown flagged down the car, which was driven by Deputy Garner of the Moore County Sheriff's Office. Mr. Brown told Deputy Garner that he was helping a guy who was trying to shoot him and take his truck. Mr. Brown and the deputy returned to the truck, but defendant was not there. Deputy Garner went to search for defendant and found defendant walking down the road. Deputy Garner saw defendant drop a gun on the ground. Defendant admitted the gun was his.
Defendant was charged with attempted robbery with a firearm and assault with a deadly weapon with intent to kill. At the close of the evidence, defendant moved to dismiss the charges, arguing there was no evidence of an intended robbery. The trial court denied the motion to dismiss the charges. A jury found defendant guilty of attempted robbery with a firearm, but not guilty of assault with a deadly weapon with intent to kill. The trial court sentenced defendant in the mitigated range to a term of forty-four to sixty-two months' imprisonment. Defendant gave notice of appeal in open court.
Defendant contends the evidence was insufficient to establish the charge of attempted robbery with a firearm. Defendant contends it is “entirely conjecture” that he was attempting to take the truck from Mr. Brown. “This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). “ ‘Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.’ “ State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). “In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994).
Here, defendant was charged with attempted robbery with a firearm. “An attempted robbery with a [firearm] occurs when a person, with the specific intent to unlawfully deprive another of personal property by endangering or threatening his life with a [firearm], does some overt act calculated to bring about this result.” State v. Allison, 319 N.C. 92, 96, 352 S.E.2d 420, 423 (1987). The issue is whether defendant's actions constituted an attempt to deprive Mr. Brown of his truck. The evidence showed that defendant had a gun in his possession, that defendant pointed the gun at Mr. Brown's head, and that defendant told Mr. Brown to get out of the truck or defendant would kill him. Mr. Brown testified that when defendant realized the keys were not in the truck, defendant called him a “sorry SOB” and fired two shots at him. Therefore, viewing the evidence in the light most favorable to the State, a reasonable mind could conclude that defendant attempted to rob Mr. Brown. Accordingly, we find no error.
No error. Judges HUNTER (ROBERT C.) and CALABRIA concur.
Report per Rule 30(e).