State v. Gaither

• Decision Date: 04 November 2003
• Docket Number: No. COA02-1477.,COA02-1477.
• Parties: STATE of North Carolina v. John Fred GAITHER.
• Court: North Carolina Court of Appeals

587 S.E.2d 505

161 NC App. 96

STATE of North Carolina v. John Fred GAITHER.

No. COA02-1477.

Court of Appeals of North Carolina.

November 4, 2003.

Attorney General Roy Cooper, by Assistant Attorney General Tina A. Krasner, for the State.

McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and Terri W. Sharp, New Bern, attorneys for defendant-appellant.

TIMMONS-GOODSON, Judge.

John Fred Gaither ("defendant") appeals his convictions of armed robbery and possession of a firearm by a convicted felon. For the reasons stated herein, we hold that defendant received a trial free of prejudicial error.

The evidence presented at trial tended to show the following: On 16 January 2002 at approximately 3:30 p.m., Belk department store security officer Tina Holt ("Holt") and regional loss prevention manager Brian Phillips ("Phillips") observed defendant on the second floor of the store in Wilmington, North Carolina via a security camera. Defendant drew the two employees' attention because he was wearing a large, heavy coat with a drawstring pulled tightly around the waist. Defendant also appeared to nervously look around the store. Holt and Phillips observed defendant conceal inside his coat nine Polo shirts from the boys' clothing department.

After concealing the shirts, defendant zipped his coat and proceeded out of the boys' department to the escalator. As defendant rode the escalator to the first floor, Holt called for assistance from mall security officers, James Allen ("Allen") and Jeffrey Reece ("Reece"), while Phillips called 911. Belk security officer Caroline Short ("Short") was called to the loss prevention office to monitor the situation via security camera while Phillips communicated with the 911 operator. Short eventually took over the communication with the 911 officer from Phillips.

Holt, Allen and Reece attempted to stop defendant at the bottom of the escalator. As they approached defendant, he immediately put his hands in his pockets. Allen asked defendant to remove his hands from his pockets several times, but defendant refused to do so. Holt, Allen and Reece instructed defendant to accompany them to the loss prevention office, but defendant continued to walk toward the store exit. Allen and Reece placed themselves in front of the exit to prevent defendant from leaving.

As Reece stood in front of defendant, he focused on defendant's hands. Defendant removed his hand from his pocket, and Reece saw the barrel of a small handgun with defendant's right index finger on the trigger of the gun. Defendant said, "You don't—you don't want to do that." Reece immediately moved from defendant's path, and said, "Gun. He's got a gun."

Defendant then exited Belk, walked down the sidewalk for approximately thirty feet and then proceeded into the parking lot, running between cars. Allen and Reece pursued defendant, but remained a distance of twenty feet away out of concern for their safety. Defendant's hands remained in his pockets the entire time he was running. Defendant ran toward Independence Boulevard.

Sergeant Brian Pettuce of the Wilmington Police Department was in the vicinity when the 911 dispatch reported that a shoplifting involving a weapon had occurred. He responded to the call and as he drove on Independence Boulevard he observed defendant run into the adjacent woods. The sergeant exited his vehicle, drew his weapon, and ordered defendant to come out of the woods and show his hands. Defendant complied with the order and was searched for a weapon. The search revealed no weapon but several Polo shirts were found stuffed inside defendant's coat. He then called for a K-9 unit to respond to the scene to conduct an article search. The K-9 unit recovered a loaded .22-caliber handgun from the woods. The recovery of the handgun was filmed by a local news crew which had responded to police reports of an armed robbery.

As an initial matter, we note that defendant's brief contains arguments supporting only five of the original seven assignments of error on appeal. The two omitted assignments of error are deemed abandoned pursuant to N.C.R.App. R. 28(b)(5) (2002). We therefore limit our review to those assignments of error properly preserved by defendant for appeal.

The issues presented for appeal are whether the trial court erred by (1) denying defendant's motion to dismiss the charge of armed robbery, or in the alternative, refusing to instruct the jury on the lesser-included offense of common law robbery; (2) admitting an audiotape of the 911 call into evidence; (3) admitting a videotaped news report of the gun recovery into evidence; and (4) denying defendant's motion to dismiss the charge of possession of a firearm by a convicted felon.

Defendant first argues that the trial court erred in denying his motion to dismiss the charge of armed robbery. Defendant asserts there was insufficient evidence to support the charges. We disagree.

In ruling on a motion to dismiss based on insufficiency of evidence, the trial court must determine whether there is substantial evidence of each element of the offense charged. See State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984)

. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). When reviewing the evidence, the trial court must consider even incompetent evidence in the light most favorable to the prosecution, granting the State the benefit of every reasonable inference. See State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). Any contradictions or discrepancies in the evidence should be resolved by the jury. See id.

In the present case, defendant was convicted of armed robbery. By definition armed robbery is committed when "[a]ny person ... who, having in possession or with the ... 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 ... any place of business...." N.C. Gen.Stat. § 14-87(a). Absent the firearm or dangerous weapon element, the offense constitutes common law robbery. "The mere possession of a firearm during the course of taking property is not a violation of N.C. Gen.Stat. § 14-87(a); the firearm must be used to endanger or threaten the life of a person as that element is the essence of armed robbery." State v. Thomas, 85 N.C.App. 319, 321, 354 S.E.2d 891, 893 (1987). "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. Lee, 128 N.C.App. 506, 510, 495 S.E.2d 373, 376 (1998). "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." Id. A defendant's threatened use of his gun is deemed concomitant with and inseparable from his robbery attempt where the evidence shows that (1) the gun was used to facilitate the defendant's escape, and (2) the taking of property coupled with the escape constitutes one continuous transaction. State v. Cunningham, 97 N.C.App. 631, 634, 389 S.E.2d 286, 288 (1990). This standard applies even if there is no evidence that defendant used force or intimidation before the taking of property. Id.

Viewing the evidence in the light most favorable to the State, there was sufficient evidence presented at trial from which a jury could find that defendant's actions fulfilled all of the elements of armed robbery. First, there was an unlawful taking of the Polo shirts from the store premises. Second, defendant showed the security officers that he possessed a gun. Third, Holt, Allen and Reece testified that they believed defendant might use the gun, and thus were threatened.

The evidence also supports a finding that while defendant's use of intimidation occurred after the taking of property, defendant's effort to avoid apprehension by store and mall security officers is an action continuous with the taking and therefore constitutes a part of the robbery attempt. First, the evidence tends to show that while in the store defendant removed several shirts from a display, concealed them within his coat, and began walking toward the first floor store exits. Then when defendant was approached by three security guards who physically blocked defendant's exit to the street, defendant presented a gun and made a threatening statement. The defendant did not testify, nor did he present any witnesses to contradict this evidence. Thus, all of the evidence presented permits a reasonable inference of defendant's guilt sufficient to defeat a motion to dismiss. The fact that only one witness to the incident actually observed the gun in defendant's possession goes to the weight of the evidence. In ruling on a motion to dismiss, the trial court is not permitted to weigh the evidence. Thus, we conclude that in the light most favorable to the state there was sufficient evidence from which the jury could find that defendant committed armed robbery. Therefore, the trial court did not err in denying defendant's motion to dismiss the charge of armed robbery.

Next, we address defendant's argument that the trial...