State v. Bartley, COA02-500.

• Decision Date: 18 March 2003
• Docket Number: No. COA02-500.,COA02-500.
• Citation: 577 S.E.2d 319,156 NC App. 490
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina, v. James BARTLEY, Jr.

577 S.E.2d 319

156 NC App. 490

STATE of North Carolina, v. James BARTLEY, Jr.

No. COA02-500.

Court of Appeals of North Carolina.

March 18, 2003.

Attorney General Roy Cooper, by Assistant Attorney General Neil Dalton, for the State.

Parish & Cooke, by James R. Parish, Fayetteville, for defendant-appellant.

McGEE, Judge.

James Bartley, Jr. (defendant) was found guilty on 25 October 2001 of robbery with a dangerous weapon in violation of N.C. Gen.Stat. § 14-87. The trial court entered judgment, finding defendant to have a prior record level of IV, and sentenced defendant to a minimum term of 105 months and a maximum term of 135 months active imprisonment. Defendant appeals the conviction.

The State's evidence at trial tended to show that at approximately 12:30 a.m. on 8 May 2001, James Burke (Burke) was working at the Crown Fast Fare Convenience Store (store) in Wilmington, North Carolina when he heard a bell ring signaling that someone had entered the store. Burke was at the rear of the store facing away from the entrance. When he turned around, Burke saw a man in a blue jacket with a white T-shirt covering his face, who had his hand in his pocket as if he was brandishing a gun in the pocket. That man was later identified as defendant. Burke testified that defendant "made like he had a gun. He had his pocket up like this and make [sic] like he had a gun." When Burke saw defendant he immediately raised his hands over his head. Defendant began screaming, "give me the money, give me the money" and Burke ran to the front counter with his hands still over his head. While Burke was behind the counter, he managed to push a panic button on a beeper he wore which notified a security service of the robbery. Defendant kept saying "give me the money, give me the money" and acting as if he was brandishing a gun inside his coat pocket while Burke tried to reassure defendant he was complying as quickly as possible. Burke opened the cash register and engaged a second panic button. He took out all the money in the register, approximately $27.00, and threw it on the counter with a couple of rolls of pennies, saying "that's all I can give you." Burke noted that defendant seemed very nervous and in a hurry. Defendant grabbed the money and ran out of the store.

At the same time, Jerry Lanning (Lanning), a college student, was driving past the store and saw defendant run out of the store. As Lanning drove closer to the store, defendant stopped running and began to walk. Lanning saw defendant get into an older model blue, two-door, foreign car parked in an auto sales lot next to the store. Defendant pulled out of the parking lot at a high rate of speed and began following Lanning very closely. Defendant passed Lanning's car in the center turn lane, and Lanning noted the license tag number of defendant's vehicle. Lanning returned to the store to see what had happened.

After defendant left the store, Burke called 911 to report the incident. Burke gave a description of defendant, describing him as good-sized, well-built with dark hair, appearing to be either Spanish or Hispanic. While Burke was on the telephone, Lanning entered the store. Lanning told Burke what he had seen. Lanning also spoke to the dispatcher, giving a similar description of defendant, a description of the car and its license tag number. Lanning described defendant as large, with a dark complexion and facial hair, wearing "all blue" clothing, long sleeves, long pants, and having his hands full as if he had something in them. The police were also informed that defendant was barefoot.

Officer Fred Elder (Officer Elder) of the Wilmington Police Department testified he was on patrol that night when he received a report to be on the lookout for a person matching the descriptions given by Burke and Lanning and driving a car of the type and with the license tag number described by Lanning, in connection with an armed robbery. After the license tag number was checked, Officer Elder was told to go to a residence in a trailer park to look for the owner of a car matching the description. Officer Elder arrived at the residence at approximately 1:10 a.m. and was there for about five minutes when a vehicle drove up with its headlights off. Defendant, the driver of the vehicle, was a heavy-set Hispanic man who was barefoot and was wearing blue jeans and a shirt. Officer Elder arrested defendant, searched defendant and the vehicle, and found a blue jacket in the vehicle. Officer Elder did not find a firearm in his search of either defendant or defendant's vehicle.

Shortly after defendant's arrest, Burke was taken to defendant's house in a police car. Burke stated that because the suspect's face had been covered, he could not be 100 percent certain in his identification of defendant, but because of other identifying features of the suspect, Burke identified defendant as the man who had robbed the store earlier that night. Lanning was also taken to where defendant was located. Lanning stated that he was 100 percent certain defendant was the man he had seen running from the store earlier that night and who had gotten into the vehicle Lanning had previously described.

Defendant's wife testified that she did not recognize her husband as the perpetrator on the surveillance tape of the store the night in question, and that her husband did not own a blue jacket like the one found by police. However, defendant's wife did testify that her husband was not at home at the time of the robbery. Defendant did not testify.

I.

Defendant argues that, even though he did not move to dismiss the charge against him, the trial court erred by failing to dismiss the charge of felonious robbery with a dangerous weapon due to the insufficiency of the evidence. N.C.R.App. P. 10(b)(3) states in pertinent part:

A defendant in a criminal case may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action, or for judgment as in case of nonsuit, at trial.

Defendant did not move to dismiss the charge against him, and thus did not meet the requirements of N.C.R.App. P. 10(b)(3). Defendant's attempt to invoke plain error review is inappropriate as this assignment of error concerns the sufficiency of the evidence, not an instructional error or an error concerning the admissibility of evidence. See State v. Steen, 352 N.C. 227, 256, 536 S.E.2d 1, 18 (2000),

cert. denied, 531 U.S. 1167, 121 S.Ct. 1131, 148 L.Ed.2d 997 (2001). However, even if we were to review defendant's first assignment of error on its merits, there is sufficient evidence to submit the charge of robbery with a dangerous weapon to the jury.

The appropriate test is "whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995) (citation omitted). Our review requires that we consider the evidence in a light most favorable to the State and give the State the benefit of every reasonable inference from that evidence. State v. Jaynes, 342 N.C. 249, 274, 464 S.E.2d 448, 463 (1995), cert. denied, 518 U.S. 1024, 116 S.Ct. 2563, 135 L.Ed.2d 1080 (1996). This review is the same whether the evidence is direct, circumstantial, or both. Id.

The essential elements of robbery with a dangerous weapon are:

"(1) the unlawful taking or an attempt to take personal property from the person or in the presence of another (2) by use or threatened use of a firearm or other dangerous weapon (3) whereby the life of a person is endangered or threatened. `Force or intimidation occasioned by the use or threatened use of firearms, is the main element of the offense.'"

State v. Small, 328 N.C. 175, 181, 400 S.E.2d 413, 416 (1991) (quoting State v. Beaty, 306 N.C. 491, 496, 293 S.E.2d 760, 764 (1982) and State v. Mull, 224 N.C. 574, 576, 31 S.E.2d 764, 765 (1944)). Defendant challenges the sufficiency of the evidence as to the second element. Defendant claims that Burke's eyewitness account creates no more than "surmise, conjecture, or suspicion" that defendant was armed, which under State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967), would be insufficient to support the charge of robbery with a dangerous weapon. We do not believe that the State's evidence creates merely "surmise, conjecture, or suspicion" as suggested by defendant.

Burke testified that defendant "made like he had a gun. He had his pocket up like this and make [sic] like he had a gun and kept screaming, `give me the money, give me the money.' "Burke also responded to a question by the State as to whether he knew what was in defendant's pocket at the time by saying, "No. A gun, it was, like, of course." In addition, upon seeing defendant with his hands in his pocket "like he had a gun," Burke's immediate reaction was to raise his hands in the air, a natural reaction of one who believes he is being confronted by someone with a gun. The fact that Burke never actually saw a firearm, never asked if defendant had a firearm, nor sought to prove defendant had a firearm by any other means does not negate Burke's testimony. State v. Thompson, 297 N.C. 285, 288-89, 254 S.E.2d 526, 528 (1979) ("We would not intimate, however, that a robbery victim should force the issue merely to determine the true character of the weapon. Thus, when a witness testified that he was robbed by use of a firearm ..., his admission on cross-examination that he could not positively say it was a gun or dangerous weapon is without probative value.").

Defendant cites two cases, State v. Lee, 128 N.C.App. 506, 495 S.E.2d 373,disc. review denied, 348 N.C. 76, 505 S.E.2d 883 (1998) and State v. Harris, 115 N.C.App. 560, 445 S.E.2d 626 (1994), and...