Opinion
No. 07-512.
Filed April 1, 2008.
Wake County Nos. 01CRS79901, CRS1327, 01CRS3370-71, 01CRS3376.
Appeal by defendant from judgments entered 26 September 2001 by Judge J.B. Allen, Jr. in Wake County Superior Court. Heard in the Court of Appeals 17 March 2008.
Attorney General Roy Cooper, by Assistant Attorney General Margaret Force, for the State. Mercedes O. Chut for defendant-appellant.
Defendant Eric Cornell Lynch appeals from his convictions of four counts of robbery with a dangerous weapon and one count of second degree kidnapping. Defendant raises one issue on appeal: whether the trial court erred in denying his motion to dismiss all charges. We hold that the State presented substantial evidence of each element of the charges and, therefore, the trial court properly denied the motion to dismiss.
Facts
The State presented evidence that tended to show the following facts. On 5 December 2000, Thomas Allred was working at a shoe store in Garner when defendant came into the store and began looking at shoe laces. When Allred, who was near the cashregister, asked defendant if he needed help, defendant lifted up his shirt to reveal a handgun in his pants' waistband and said, "[G]ive me the money." Allred opened the register and handed defendant the money.
Defendant then asked Allred if the store had any cameras and after told it did not, defendant said, "[L]et's go to the back." When Allred refused, defendant stated he would not hurt Allred. Allred then walked through shelves of inventory to the very back of the store, and defendant directed Allred to go into the bathroom. Allred entered the bathroom, closed and locked the door, and lay down on the floor to avoid being shot through the wall. Allred heard defendant rummaging around in the back of the store, but then heard the front door bell chime, signalling that someone had either come in or out of the door. Allred left the bathroom and called the police. He subsequently identified defendant as the robber in a photo line-up.
The next day, on 6 December 2000, Erin Mooring was working at her smoothie shop in Raleigh when defendant came in and lifted his shirt to reveal a gun in the waistband of his pants. He told her to open the register and she did. He took the money and told her to walk to the back of the store. Defendant then left. Mooring returned to the front of the store and saw defendant running around the side of a nearby building. Mooring also identified defendant in a photo line-up.
On 7 December 2000, Isha Williams was working in a shoe store in Raleigh when defendant walked in and asked for shoe laces. When he returned to the register, he told Williams to empty the register and lifted his shirt to reveal a gun stuck in the waistband of his pants. After taking the money, defendant directed Williams to go to the back of the store. When Williams turned around and saw that defendant was no longer behind her, she ran out the back door of the store, only to see defendant running toward a white, American-made car parked there. Defendant told Williams to go back in the store, and she did. She then called the police. Williams later identified defendant in a photo line-up.
On 18 December 2000, Lois Glover Carroll was working in a shoe store in Zebulon when defendant entered and asked to see shoe laces. As Carroll opened the cash register so that defendant could pay for the laces, defendant said, "[G]ive me your money." Carroll initially said she could not do that, but defendant opened his jacket to reveal a pistol. Carroll gave him the money, and defendant told her to go to the back of the store. When she heard a door chime, she yelled to her manager that they had been robbed. The manager's daughter, Kaye Parrish, ran through the store and out the front door as Carroll called out a description to her. Parrish saw defendant get into a white Pontiac Grand Am, and she was able to see a partial license plate number which she gave to the police. The partial number matched a plate and car registered to defendant. Carroll also identified defendant in a photo line-up.
Defendant was tried on four counts of robbery with a dangerous weapon and one count of second degree kidnapping. The jury convicted him of all the offenses, and the trial court sentenced defendant in the presumptive range to four consecutive sentences of 103 to 133 months and one consecutive sentence of 34 to 50 months imprisonment. Defendant timely appealed to this Court, but for reasons not disclosed in the record, no counsel was appointed until amended appellate entries were entered on 27 July 2006.
Discussion
Defendant argues that the trial court erred in denying his motion to dismiss. In deciding a motion to dismiss, the trial court is required to consider the evidence in the light most favorable to the State and determine whether there is substantial evidence of each essential element of the offense charged and of the defendant's being the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). "Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion." State v. Scott, 356 N.C. 591, 597, 573 S.E.2d 866, 869 (2002).
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(a) (2007). The State thus 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).
Defendant argues only that the State failed to present evidence of a danger or threat to the victims in each of the four robberies. If, however, evidence is presented that defendant represented he had a gun and the victim reasonably believed he had a gun, the law presumes the victim's life was endangered or threatened in the absence of contrary evidence. State v. Bartley, 156 N.C. App. 490, 501, 577 S.E.2d 319, 326 (2003) (citing State v. Williams, 335 N.C. 518, 521, 438 S.E.2d 727, 728-29 (1994)). Where evidence is presented challenging this presumption, the jury is permitted to infer the threat or danger to the victim's life, although it is not required to do so. Williams, 335 N.C. at 521, 438 S.E.2d at 729.
Here, all four victims testified that defendant, when demanding money, showed them a gun. Thomas Allred testified he was scared because he thought he might be shot; Erin Mooring testified she was in shock when she saw the gun; Isha Williams was crying and hysterical after the robbery; and Lois Glover Carroll testified that she was "scared to death" during her robbery. This evidence was sufficient to support the presumption that the victims' lives were endangered or threatened. The trial court, therefore, properly denied the motion to dismiss as to the four armed robbery charges.
With respect to defendant's conviction for the second degree kidnapping of Thomas Allred pursuant to N.C. Gen. Stat. § 14-39 (2007), defendant first relies upon State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978), in which our Supreme Court held:
It is self-evident that certain felonies ( e.g., forcible rape and armed robbery) cannot be committed without some restraint of the victim. We are of the opinion, and so hold, that G.S. 14-39 was not intended by the Legislature to make a restraint, which is an inherent, inevitable feature of such other felony, also kidnapping so as to permit the conviction and punishment of the defendant for both crimes. To hold otherwise would violate the constitutional prohibition against double jeopardy. . . . [W]e construe the word "restrain," as used in G.S. 14-39, to connote a restraint separate and apart from that which is inherent in the commission of the other felony.
Id. at 523, 243 S.E.2d at 351. Defendant argues that the State failed to show that Thomas Allred was put in greater danger than that inherent in the robbery itself. We disagree.
The State presented evidence that after Allred had already given defendant the money in the cash register, defendant forced Allred, despite Allred's objection, to go to the back of the store and into the bathroom, where Allred then lay down on the floor out of fear of being shot. Moving Allred to the back of the store and into the bathroom was not necessary for commission of the robbery and, therefore, Fulcher does not apply. See, e.g., State v. Raynor, 128 N.C. App. 244, 250, 495 S.E.2d 176, 180 (1998) (holding that defendant could be convicted of both robbery and kidnapping when victim was moved from front door to back bedroom so that they could take money from victim's wallet and victim was moved to kitchen where defendant took his keys); State v. Davidson, 77 N.C. App. 540, 543, 335 S.E.2d 518, 520 (when defendant forced victims at gunpoint to walk from front of store to dressing room in the rear, where none of the stolen property was kept, and bound them, "[r]emoval of the victims to the dressing room thus was not an inherent and integral part of the robbery"), appeal dismissed and disc. review denied, 314 N.C. 670, 337 S.E.2d 583 (1985), disc. review denied, 315 N.C. 393, 338 S.E.2d 882 (1986).
Defendant also argues that the record contains insufficient evidence that the removal was for one of the purposes enumerated in N.C. Gen. Stat. § 14-39. The jurors were instructed that the State had to prove that the purpose of the removal was facilitating flight following the commission of the robbery. Here, the State presented evidence that at the time Allred was required to go to the back of the store and into the bathroom, he had already given defendant all the money in the cash register. Further, in each of the other robberies, defendant had ordered the victim to go to the back of the store immediately prior to fleeing the store. When viewed in the light most favorable to the State, this evidence was sufficient to permit a jury to find that the purpose of forcing Allred into the bathroom was to facilitate defendant's escape. Therefore, sufficient evidence was presented to support each element of the offense of second degree kidnapping, and the trial court did not err in denying defendant's motion to dismiss.
No error.
Judges TYSON and STEPHENS concur.
Report per Rule 30(e).