State v. Clemmons
| Decision Date | 07 February 1978 |
| Docket Number | No. 7711SC674,7711SC674 |
| Citation | 35 N.C.App. 192,241 S.E.2d 116 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Ronnie CLEMMONS. |
Atty. Gen. Rufus L. Edmisten by Assoc. Atty. Gen., Joan H. Byers, Raleigh, for the State.
Morgan, Bryan, Jones, Johnson, Hunter & Greene by C. M. Hunter, Erwin, for defendant-appellant.
Defendant assigns as error the denial of his motion for nonsuit and bases his argument on two grounds: (1) the insufficiency of the evidence, and (2) variance in the charge (the indictment alleging that the money was taken "from the presence, person, place of business of Elizabeth Ann McCormick") and the proof (evidence that the money was taken from the person and presence of Mr. McCormick).
Turning first to the sufficiency of the evidence, it is established that Dale Ray and another acted in concert in committing the armed robbery. Dale and defendant were together at 5:30 p.m. when they left the Miller home in the car Miller had loaned to defendant. The time of the commission of the crime was fixed at about 6:30 p.m. by testimony of the victims that the perpetrators entered Ann's Grocery a few minutes after the local newscast on television. Dale and defendant were seen together in Miller's car minutes before 6:30 at a service station a few miles from Ann's Grocery, and they were seen together again a few minutes after 6:30 at another service station a few miles from Ann's Grocery. Black gloves were worn by the unidentified perpetrator, and he dropped one of the gloves at the scene of the crime. On the following day a similar black glove was found on the floor of Miller's car. This evidence, together with the other evidence considered in the light most favorable to the State, reasonably conduces to the conclusion as a fairly logical and legitimate deduction that defendant was the unidentified person with Dale and that they committed the armed robbery in concert. See State v. Stephens, 244 N.C. 380, 93 S.E.2d 431 (1956). The State's evidence on the issue of identity is circumstantial, but the test of the sufficiency of the evidence to withstand a motion for nonsuit is the same whether the evidence is circumstantial, direct, or both. State v. McKnight, 279 N.C. 148, 181 S.E.2d 415 (1971); State v. McCuien, 15 N.C.App. 296, 190 S.E.2d 386 (1972). The defendant's motion for nonsuit on grounds of insufficiency of the evidence was properly denied.
The variance between the charge and the proof is not fatal. The armed robbery was a single, continuous course of conduct that lasted only a few minutes from the entry, when both Mr. and Mrs. McCormick were present, until the perpetrators left. Mrs. McCormick walked from the store to an adjoining room and was shot by the unidentified robber as she closed the door. It is not clear whether she was in the adjoining room or outside seeking help when the money was taken. The main element of the offense of armed robbery is the force or intimidation occasioned by the use or threatened use of firearms. State v. Lynch, 266 N.C. 584, 146 S.E.2d 677 (1966); State v. Black, 286 N.C. 191, 209 S.E.2d 458 (1974); State v. Johnson, 20 N.C.App. 53, 200 S.E.2d 395 (1973).
Mrs. Ann McCormick left the store area and went to an adjoining room immediately after the perpetrators intimidated her by the threatened use of firearms and announced that it was a holdup. At that stage, before taking the money from Mr. McCormick, there was a completed crime under G.S. 14-87. The offense is complete if there is either a taking or an attempt to take the personal property of another by the means and in the manner prescribed by G.S. 14-87. State v. Evans, 279 N.C. 447, 183 S.E.2d 540 (1971).
In the case sub judice the indictment alleges "from the presence, person, place of business, of Elizabeth Ann McCormick." We note that G.S. 14-87 provides "from . . . any other place where there is a person or persons in attendance. . . ." The statutory language is much broader than the indictment language, and the district attorney may find it advisable to use the statutory language in indictments for armed robbery to avoid problems of proof that may arise if the more restrictive common law language is used. The word "presence" must be interpreted broadly and with due consideration to the main element of the crime intimidation or force by the use or threatened use of firearms. "Presence" here means a possession or control by a person so immediate...
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Com. v. Levia
...v. Perkins, 45 Or.App. 91, 607 P.2d 1202 (1980). See also State v. Ballard, 280 N.C. 479, 186 S.E.2d 372 (1972); State v. Clemmons, 35 N.C.App. 192, 241 S.E.2d 116 (1978). The North Carolina courts, in the above-cited cases, concluded, and the defendant here argues, that the existence of a ......
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State v. Styles
...evidence the money was taken from the presence of the victim. "The word 'presence' must be interpreted broadly," State v. Clemmons, 35 N.C.App. 192, 196, 241 S.E.2d 116, 118-19, disc. rev. denied, 294 N.C. 737, 244 S.E.2d 155 (1978), with due consideration given to the element of the crime ......
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...the taking of the property in a continuous course of conduct, the taking is from the "presence" of the victim. State v. Clemmons, 35 N.C.App. 192, 196, 241 S.E.2d 116, 118-19 (citations omitted), disc. review denied, 294 N.C. 737, 244 S.E.2d 155 (1978); see also State v. Dunn, 26 N.C.App. 4......
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