State v. Hope, 8416SC1196

• Docket Nº: No. 8416SC1196
• Citation: 77 N.C.App. 338, 335 S.E.2d 218
• Case Date: October 15, 1985
• Court: Court of Appeal of North Carolina (US)

Page 218

335 S.E.2d 218 77 N.C.App. 338 STATE of North Carolina
v.
W.D. HOPE. No. 8416SC1196. Court of Appeals of North Carolina. Oct. 15, 1985.

[77 N.C.App. 339] Atty. Gen. Lacy H. Thornburg, by Associate Atty. Gen. Dolores O. Nesnow, Raleigh, for the State.

Appellate Defender Adam Stein, by First Asst. Appellate Defender Malcolm Ray Hunter, Jr., Raleigh, for defendant appellant.

BECTON, Judge.

From a conviction of robbery with a firearm, defendant, W.D. Hope, appeals.

On 31 January 1984, Williamson and Barringer were working at Ned's Outlet and Texaco when defendant entered the store wearing a long blue coat. Defendant went to the back of the store, and he returned wearing a tan coat belonging to Ned's Outlet. He left his coat as an "exchange." Defendant did not attempt to pay for the coat, and he walked toward the store's exit.

Williamson stopped defendant and told him he was wearing a coat belonging to the store. Defendant denied this, and Williamson brought defendant to the back of the store where they found the blue coat defendant had left. Williamson then brought defendant to Barringer in the front of the store, and Williamson went to the cash register. Defendant told Barringer he wanted to trade coats, but Barringer said they didn't trade coats. Defendant then headed for the exit once again, and Barringer asked him to stop. At this point, Williamson noticed a gun in defendant's pants and warned Barringer.

Barringer testified at trial that he told Williamson to call the police, and that defendant then threatened to kill Barringer if he did not keep quiet. Williamson's testimony indicated that defendant made the threat before Barringer told Williamson to call the police.

Of four possible verdicts--guilty of robbery with a firearm, guilty of common law

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robbery, guilty of misdemeanor larceny, and not guilty--the jury returned a verdict of guilty of robbery with a firearm.

Defendant raises two contentions on appeal: (1) the evidence was insufficient to go to a jury on the charge of robbery with a firearm because the threat of force was subsequent to the taking, and (2) appointed defense attorney failed to provide effective [77 N.C.App. 340] assistance of counsel at the sentencing hearing. We agree with defendant on his first argument and reverse the conviction. Therefore, we need not address the second argument.

Defendant asserts that the charge of robbery with a firearm should have been dismissed because the evidence was insufficient to prove the element of taking by force or a threat of force. On a motion to dismiss, the trial court must determine whether there is substantial evidence of each element of the offense and that the defendant was the perpetrator. State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). Defendant's motion to dismiss the armed robbery charge should have been granted unless there were substantial evidence of each element of armed robbery, which is "the taking of the personal property of another in his presence or from his person without his consent by endangering or threatening his life with a firearm or other deadly weapon with the taker knowing that he is not entitled to the property and the taker intending to permanently deprive the owner of the property." Id., at 102, 261 S.E.2d at 119 (citation omitted); see N.C.Gen.Stat. Sec. 14-87(a) (1981).

The evidence shows that, while still in the back of the store, defendant removed his own blue coat and put on a tan coat belonging to Ned's Outlet. Defendant then walked toward the exit, leaving his old blue coat in the back of the store, without attempting to pay for the tan coat. The State presented the testimony of Mr. Williamson as follows:

Q. After you saw that the defendant was leaving--with the defendant leaving with the coat on, what, if anything, did you say to him or do?

A. As he was walking toward the door, I said, "Excuse me." He stopped. I said, "That's not your coat," and then he started to arguing with me.

Q. Did you--do you recall the words of the argument?

A. Yes.

Q. Okay. What did the defendant say to you?

A. Okay. As I stopped him, I said, "That's not your coat." He said, "Yes, it is." I said, "That's not the coat you came in here [77 N.C.App. 341] with." He said, "Yes, I did." And I took him to the back of the store where he had laid his coat.

Mr. Williamson testified that he then took defendant to Donald Barringer, who spoke briefly with defendant. Mr. Williamson's testimony continued:

Q. Okay. And what happened at that time?

A. Well, as I was watching him, he started back out toward the front and that's when Donald started yelling at him, telling him that was his coat.

Q. Did the defendant still have on the coat at that time?

A. Yes, sir.

Q. Now, you stated that Donald Barringer told him what?

A. That wasn't his coat, that it belonged to the store.

Q. What happened, then?

A. Okay. As he was telling--yelling at him, he just kept walking, just like he didn't hear it.

Q. Go on.

A. And then after he got on a little closer to me, that's when Donald stopped him and when he did, that's when I pointed out the gun.

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