State Carolina v. Roy Lee Elkins.

• Decision Date: 01 March 2011
• Docket Number: No. COA10–916.,COA10–916.
• Citation: 707 S.E.2d 744
• Parties: STATE of North Carolinav.Roy Lee ELKINS.
• Court: North Carolina Court of Appeals

707 S.E.2d 744

STATE of North Carolina
v.
Roy Lee ELKINS.

No. COA10–916.

Court of Appeals of North Carolina.

March 1, 2011.

[707 S.E.2d 747]

Appeal by Defendant from judgment entered 4 December 2009 by Judge James U. Downs in Buncombe County Superior Court. Heard in the Court of Appeals 10 January 2011.

Roy Cooper, Attorney General, by Steven A. Armstrong, Assistant Attorney General, for the State.

William B. Gibson, Winston–Salem, for defendant-appellant.

THIGPEN, Judge.

Roy Lee Elkins (“Defendant”) appeals from judgment entered 4 December 2009 sentencing him to 107 to 138 months incarceration consistent with the jury's guilty verdict of common law robbery and Defendant's plea of guilty of having attained the status of an habitual felon. We find no error.

The evidence of record tends to show that on 28 January 2009 Defendant entered a Hot Spot convenience store in Asheville, North Carolina. The store cashier, William McHone (“McHone”), saw Defendant go to the restroom and remain there while McHone continued talking with a friend at the front of the store. When McHone's friend left the store, Defendant exited the restroom and approached McHone at the cash register. Defendant said, “I need a hundred dollars,” after which McHone laughed, saying “[Yeah], I do, too.” Defendant then said, for a second time, “I need a hundred dollars,” and McHone “looked at his eyes and ... knew he was serious.” McHone also noticed that Defendant was “hiding his arm” under his jacket, and McHone thought Defendant “had a gun.” McHone then opened the cash register and “laid the till down on the counter[,]” allowing Defendant to take the cash. Defendant took the cash from the cash register and left the store.

Defendant was videotaped by the Hot Spot surveillance camera as he approached the cash register, made statements to McHone consistent with McHone's testimony, took money from the cash register, and left the store. Defendant also made a written statement to the police saying the following: “My girlfriend and I are living out of her car. She's been real sick. That night, it was really cold and we didn't have any money. I was afraid she was going to die so I went

[707 S.E.2d 748]

there and I took that money. I shouldn't have done it, I know.”

On 20 February 2009, Defendant was indicted on counts of common law robbery and having attained the status of an habitual felon. Defendant was tried during the 30 November 2009 session of the Superior Criminal Court of Buncombe County. A jury found Defendant guilty of common law robbery, and Defendant pled guilty to having attained the status of an habitual felon. The court entered judgment on 4 December 2009 sentencing him to 107 to 138 months incarceration consistent with the jury's guilty verdict and Defendant's plea, and ordering restitution in the amount of $59.00. From this judgment, Defendant appeals. We find no prejudicial error in part and vacate in part.

I: Sufficiency of the Evidence

In Defendant's first argument on appeal, Defendant challenges the trial court's refusal to grant his motion to dismiss predicated on the alleged absence of sufficient evidence that Defendant took money from McHone by means of violence or fear.

When reviewing a challenge to the denial of a defendant's motion to dismiss a charge on the basis of insufficiency of the evidence, this Court determines “whether the State presented ‘substantial evidence’ in support of each element of the charged offense.” State v. Chapman, 359 N.C. 328, 374, 611 S.E.2d 794, 827 (2005) (quotation omitted). “ ‘Substantial evidence is relevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion.’ ” State v. Abshire, 363 N.C. 322, 328, 677 S.E.2d 444, 449 (2009) (quoting State v. McNeil, 359 N.C. 800, 804, 617 S.E.2d 271, 274 (2005)). “In this determination, all evidence is considered in the light most favorable to the State, and the State receives the benefit of every reasonable inference supported by that evidence.” Id. Additionally, a “substantial evidence inquiry examines the sufficiency of the evidence presented but not its weight,” which remains a matter for the jury. McNeil, 359 N.C. at 804, 617 S.E.2d at 274. Thus, “[i]f there is substantial evidence—whether direct, circumstantial, or both—to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.” Id.

The elements of common-law robbery are “the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear.” State v. Smith, 305 N.C. 691, 700, 292 S.E.2d 264, 270, cert. denied, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982) (citation omitted). “The force element required for common law robbery requires violence or fear ‘sufficient to compel the victim to part with his property’ ” or “ ‘to prevent resistance to the taking.’ ” State v. Williams, ––– N.C.App. ––––, ––––, 689 S.E.2d 412, 424 (2009) (quoting State v. Sipes, 233 N.C. 633, 635, 65 S.E.2d 127, 128 (1951), State v. Sawyer, 224 N.C. 61, 65, 29 S.E.2d 34, 37 (1944)). “[I]t is not necessary to prove both violence and putting in fear—proof of either is sufficient.” Sawyer, 224 N.C. at 65, 29 S.E.2d at 37.

The element of force, which requires proof of a taking either by violence or putting the victim in fear, may be “actual or constructive.” Sipes, 233 N.C. at 635, 65 S.E.2d at 128. “ ‘Constructive force’ includes all demonstrations of force, menaces, and other means by which the person robbed is put in fear sufficient to suspend the free exercise of his will or prevent him from resisting the taking.” Id.

No matter how slight the cause creating the fear may be or by what other circumstances the taking may be accomplished, if the transaction is attended with such circumstances of terror, such threatening by word or gesture, as in common experience are likely to create an apprehension of danger and induce a man to part with his property for the sake of his person, the victim is put in fear.

Sawyer, 224 N.C. at 65, 29 S.E.2d at 37. The Supreme Court has also noted “that the word ‘fear’ ... in the definition of common-law robbery is not confined to fear of death[,]” and “the use or threatened use of a firearm or other dangerous weapon is not an essential of common-law robbery.”

[707 S.E.2d 749]

State v. Moore, 279 N.C. 455, 458, 183 S.E.2d 546, 547–48 (1971).

In the case sub judice, McHone testified at trial with regard to the common law robbery element of violence or fear, stating that a man came into the convenience store and walked “toward the restroom.” McHone “just went on with [his] work and started talking ... to a friend of mine.” When McHone's friend left the store, “the guy [came] out of the restroom and [walked] up to me,” demanding, “ ‘I need a hundred dollars[.]’ ” At first, McHone “started laughing” because McHone “thought he was joking.” However, the man again demanded, “ ‘I ... need a hundred dollars.’ ” This time, McHone “looked at his eyes and ... I knew he was serious.” When asked specifically, “What about his eyes?” McHone responded, “They looked evil looking.... [I]t was just like he meant it[;] [y]ou know how you get mad and angry at somebody and you mean something[,] ... [y]our eyes can tell the story.” McHone also noticed that the man “had [his hand] under his jacket[,]” and McHone “thought he ... might have had a gun or something[.]” McHone repeated, “I thought that he had a gun under his jacket” because “he was hiding his arm.” “I knew he was trying to rob me,” McHone said. The man “[h]ad his arm under [the] jacket there[,] [and] ... I thought it was a gun.” After the man's second demand for one-hundred dollars, McHone “went to the cash register[,]” “opened it up[,]” and “laid the till down on the counter [to] let him get the money[.]” McHone said he took the money and left the store. When specifically asked, “based on your fear that he may have ... a gun, is that when you gave him the money?” McHone answered, “That's right. That's right.”

Defendant argues that State v. Parker, 322 N.C. 559, 369 S.E.2d 596 (1988), is binding authority. We disagree. In Parker, the evidence surrounding the alleged common law robbery tended to show the victim was abducted at gunpoint and forced into the back seat of the defendant's car. Id., 322 N.C. at 561, 369 S.E.2d at 597. When the defendant asked “if [the victim] had any money or valuables[,] [s]he told him she had only a watch on a chain around her neck [,]” which the defendant took. Id., 322 N.C. at 561, 369 S.E.2d at 597–98. The defendant then returned the victim to her dormitory, at which point the victim testified “she talked to her assailant in an attempt to keep him calm.”

She told the defendant that the watch he had taken was a gift from her mother and that she would get money from her dormitory room and give it to him in exchange for the watch. They returned to the campus where the victim went to her room, got some money and returned to the parking lot. The defendant drove up beside the victim; she leaned into the car window and handed him the money in exchange for her watch. He then drove away.

Id., 322 N.C. at 561, 369 S.E.2d at 598. The Court concluded there was insufficient evidence of the element of violence or fear, reasoning:

All of the evidence unequivocally tended to show that the victim was not induced to part with her money as a result of violence or fear. To the contrary, she clearly testified that no weapon was in sight and she was not afraid at the time she left the defendant in his car and went to her dormitory room to get her money. Neither was there any evidence that violence or fear induced her to give her money to the defendant when she returned.

Id., 322 N.C. at 566–67, 369 S.E.2d at 601. Parker is distinguishable from this case in several ways. At the time the victim in Parker...