Opinion
No. 06-1695.
Filed August 7, 2007.
New Hanover County Nos. 06 CRS 52203-4.
Appeal by defendant from judgment entered 10 August 2006 by Judge Paul L. Jones in New Hanover County Superior Court. Heard in the Court of Appeals 23 July 2007.
Attorney General Roy Cooper, by Special Deputy Attorney General Kathleen M. Waylett, for the State. J. Clark Fischer, for defendant-appellant.
Sidney Anthony Graham ("defendant") appeals from judgment entered upon a jury verdict finding him guilty of robbery with a dangerous weapon. We find no error.
On 18 February 2006, Laura Houghton ("Ms. Houghton") was working alone preparing flower arrangements in her florist shop. Defendant entered the shop pretending to be a customer and questioned Ms. Houghton about roses. As they spoke, defendant said, "Give me all your money." When Ms. Houghton told defendant she did not have any money, he said, "Let me tell you like its going to be. You walk over to that safe and give me all your money or I'll shoot you." At the time that Defendant made this statement, he had one hand behind his back. Ms. Houghton did not actually see a gun. However, Ms. Houghton testified that she believed defendant had a gun, and that he was holding it behind his back. She further testified that she was afraid for her safety and afraid the defendant was going to shoot her. After Ms. Houghton gave defendant the money from the shop's safe, defendant ordered her into a back room. After defendant left, Ms. Houghton called the police. She told the police that defendant had a gun and had threatened to shoot her.
Defendant testified on his own behalf and admitted to the robbery, but denied he had used a gun. He also denied that he had put his hand behind his back and that he had told Ms. Houghton he would shoot her.
On 10 August 2006, a jury returned a verdict finding defendant guilty of, inter alia, robbery with a dangerous weapon of the Will Rehder Florist, Inc. shop in the presence of Laura Houghton. New Hanover County Superior Court Judge Paul L. Jones sentenced defendant to a minimum term of 72 months to a maximum term of 96 months in the North Carolina Department of Correction. Defendant appeals.
Defendant's sole assignment of error on appeal is that the trial court erred by denying his motion to dismiss because there was insufficient evidence to support a conviction of armed robbery.
When reviewing a motion to dismiss, we view "the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences." State v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004), cert. denied, 546 U.S. 830, 163 L. Ed. 2d 79 (2005). If we find that "substantial evidence exists to support each essential element of the crime charged and that defendant was the perpetrator, it is proper for the trial court to [have denied] the motion." Id. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
Before turning to the merits of defendant's assignment of error, we must first address the State's contention that defendant failed to preserve his claim of error for appeal because he did not renew his motion to dismiss at the close of all evidence as required by N.C. App. R. 10(b)(3). Our review of the record reveals that at the close of all evidence the trial court specifically asked the parties if there were "any motions?" Defense counsel responded "Yes, sir," and then both defense counsel and the State proceeded to renew their arguments made at the close of the State's evidence regarding the sufficiency of the evidence to support the armed robbery instruction. We conclude that this colloquy was sufficient to constitute the motion to dismiss necessary and the issue for appeal was preserved.
To convict a defendant of robbery with a dangerous weapon under N.C. Gen. Stat. § 14-87(a), the State is required to prove the following:
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 or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time, either day or night, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of a Class D felony.
N.C. Gen. Stat. § 14-87(a) (2005).
Defendant concedes that actual display of a weapon to a victim is not necessary to sustain a conviction for armed robbery. On this issue, this Court has announced the following legal standard:
To obtain a conviction for armed robbery, it is not necessary for the State to prove that the defendant displayed the firearm to the victim. Proof of armed robbery requires that the victim reasonably believed that the defendant possessed, or used or threatened to use a firearm in the perpetration of the crime. State v. Thompson, 297 N.C. 285, 289, 254 S.E.2d 526, 528 (1979). The State need only prove that the defendant represented that he had a firearm and that circumstances led the victim reasonably to believe that the defendant had a firearm and might use it. State v. Williams, 335 N.C. 518, 522, 438 S.E.2d 727, 729 (1994).
State v. Lee, 128 N.C. App. 506, 510, 495 S.E.2d 373, 376, disc. rev. denied and appeal dismissed, 348 N.C. 76, 505 S.E.2d 883 (1998).
Here, Ms. Houghton testified that while demanding that she give him money from the shop's safe, defendant held one hand behind his back and stated that he would shoot her. In addition, Ms. Houghton testified that she believed defendant had a gun and that she was afraid he was going to shoot her. We conclude that defendant's statement and behavior were sufficient circumstances leading the victim to reasonably believe that he possessed a firearm and that he would use it. Consequently, we hold that the evidence was sufficient to submit to the jury the charge of armed robbery with a dangerous weapon. See State v. Jarrett, 167 N.C. App. 336, 339, 607 S.E.2d 661, 663 (2004) (holding that evidence was sufficient to support armed robbery conviction where defendant stated that he had a gun while demanding money, and that each victim believed defendant possessed a gun), disc. rev. denied, 359 N.C. 324, 611 S.E.2d 840 (2005). Defendant's assignment of error is overruled.
No error.
Chief Judge MARTIN and Judge JACKSON concur.
Report per Rule 30(e).