An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
ROBERT N. HUNTER, Jr., Judge.
Layton Allen Waters ("Defendant") appeals his conviction for robbery with a dangerous weapon. Defendant contends the trial court erred by denying his motion to dismiss when the State failed to prove Defendant possessed a dangerous weapon. We find no error.
I. Factual and Procedural History
On 25 June 2015, Detective S. Galloway arrested Defendant for robbery with a dangerous weapon. On 27 July 2015, a Henderson County Grand Jury indicted Defendant for robbery with a dangerous weapon. On 5 January 2016, the trial court called Defendant's case for trial. The State's evidence tended to show the following.
The State first called Melanie McCall, a teller at the First Citizens Bank of Etowah ("the Bank"). On the afternoon of 25 June 2015, Defendant approached McCall's teller window. Defendant wore a baseball hat and red sunglasses. He did not speak to McCall and did not respond when she greeted him. When he reached her teller window, Defendant set a piece of folded paper in front of her. McCall opened it. The paper read, "This is not a joke. Give me all your money. I have a bomb outside." McCall indicated, at trial, for a "split second" she wondered if she would ever see her children again. Defendant then handed McCall a wadded up plastic bag. McCall placed $13,327
The State next called Matthew Clark. At the relevant time, Clark rented a basement apartment from Defendant's mother. On 25 June 2015, Defendant asked Clark for a ride to the Bank. Clark drove Defendant towards the Bank, but Defendant asked Clark to pull into a gas station near the Bank. Defendant entered the gas station. Clark did not see Defendant carrying anything with him into the gas station. Defendant exited the gas station and walked around the back of the gas station, towards the Bank. Clark did not wait "long" before Defendant exited the Bank. Clark did not see Defendant carry anything with him out of the Bank. Clark drove Defendant back to Clark's residence. Clark noticed Defendant seemed "a little more upbeat" on the drive home. Defendant gave Clark $100.
The State next called Detective Richard Olsen of the Hendersonville Police Department. On 25 June 2015, Detective Olsen heard a radio transmission announcing the presence of a suspected bank robber near a local camping store.
The State rested. Defendant then moved to dismiss the case. Defendant argued the State failed to prove the "use or threatened use of any firearms or other dangerous weapon," element for N.C. Gen. Stat. § 14-87. The trial court denied Defendant's motion to dismiss.
Defendant testified on his own behalf. According to Defendant, a dream from the previous night inspired him to commit the bank robbery. Defendant admitted to walking into the Bank and stealing the money by using the note. However, defendant denied the presence of a bomb or any intention to hurt anyone. Defendant believed it was protocol for bank tellers to hand over money if a note indicated the presence of a weapon.
Defendant rested and renewed his motion to dismiss. The trial court denied the motion.
On 6 January 2016, the trial court held a charge conference. The trial court altered the pattern jury instruction for robbery with a dangerous weapon other than a firearm. For the element "use or threatened use of any firearms or other dangerous weapon," the trial court removed the presumptive language that would have allowed the jury to assume where a dangerous weapon was threatened, one was present. Additionally, the trial court included a definition for an explosive device. The instructions included the lesser included offense of common law robbery.
The next morning, on 7 January 2016, the State argued the presumptive language should not be removed from the pattern jury instruction because Defendant failed to prove he was not carrying a bomb. Defendant argued there was sufficient evidence to rebut the presumption. The trial court, relying on Defendant's testimony as some evidence of the lack of a bomb, denied the State's request and left the presumptive language out of the instruction. The trial court then instructed the jury on both common law robbery and robbery with a dangerous weapon. Before closing arguments, Defendant admitted he was guilty of common law robbery.
The jury found Defendant guilty of robbery with a dangerous weapon. The trial court sentenced Defendant to 64 to 89 months imprisonment. Defendant moved for Judgment Notwithstanding the Verdict. The trial court denied Defendant's motion. Also on 7 January 2016, Defendant filed a pro se purported written notice of appeal.
On 11 January 2017, Defendant filed a petition for a writ of certiorari. In his petition, Defendant admits his written notice of appeal failed to comply with Rule 4 of the North Carolina Rules of Appellate Procedure. On 19 January 2017, the State filed its response to Defendant's petition and a motion to dismiss Defendant's appeal.
Under Rule 4 of the North Carolina Rules of Appellate Procedure:
N.C. R. App. P. 4 (2017).
Here, although Defendant filed a purported notice of appeal on the same day as the judgment, there is no evidence Defendant served the State. In fact, Defendant fully admits failure to adhere to Rule 4, and the record suggests the appeal did not include a certificate of service. Because Defendant failed to comply with Rule 4, we allow the State's motion to dismiss. However, we exercise our discretion and grant Defendant's petition for writ of certiorari and review the merits of his appeal.
III. Standard of Review
The standard of review for a motion to dismiss for insufficient evidence is de novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted). "`Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.'" State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)). "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) (citations omitted).
"In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor." State v. Rose, 339 N.C. 172, 192-93, 451 S.E.2d 211, 223 (1994) (citation omitted).
Defendant contends the trial court erred in denying his motion to dismiss because the State failed to provide sufficient evidence Defendant had a dangerous weapon at the time of the robbery. We disagree.
Under N.C. Gen. Stat. § 14-87,
N.C. Gen. Stat. § 14-87 (2016) (emphasis added).
In construing this statute:
State v. Jarrett, 167 N.C. App. 336, 339-40, 607 S.E.2d 661, 663 (2004) (quoting State v. Lee, 128 N.C. App. 506, 510, 495 S.E.2d 373, 376 (1998)). See also State v. Williams, 335 N.C. 518, 521, 438 S.E.2d 727, 728-29 (1994); State v. Bartley, 156 N.C. App. 490, 496, 577 S.E.2d 319, 323 (2003).
As stated by our Court:
State v. Marshall, 188 N.C. App. 744, 750, 656 S.E.2d 709, 714 (2008) (citations omitted).
When a defendant pretends to possess a dangerous weapon, there is "a presumption that the defendant, in fact, possessed a dangerous weapon." Id. at 750-51, 656 S.E.2d at 714 (citing State v. Joyner, 312 N.C. 799, 782-83, 324 S.E.2d 841, 844 (1985)). However, when a defendant introduces evidence to show he did not, in fact, possess a weapon, the mandatory presumption disappears. Id. at 751, 656 S.E.2d at 714 (citation omitted). Then, a "permissive inference" survives and permits, but does not require, the jury to infer the element. Id. at 751, 656 S.E.2d at 714 (citation omitted). The permissive inference is enough to survive a motion to dismiss. Id. at 751, 656 S.E.2d at 714 (citation omitted).
Defendant cites to State v. Keller, 214 N.C. 447, 199 S.E. 620 (1938)
Defendant contends the State failed to present sufficient evidence to survive a motion to dismiss. Defendant's argument centers on the amount of evidence indicating a bomb was not present. Specifically, Defendant notes officers searched the Bank, the getaway car, and Defendant's home. However, officers failed to discover a bomb, evidence of a bomb, or any bomb-making materials.
Here, the victim of the robbery testified Defendant passed her a note saying "This is not a joke. Give me all your money. I have a bomb outside." Additionally, McCall testified she gave Defendant the money "[b]ecause he said he had a bomb." In fact, McCall stated she would not have given Defendant the money, but for the note indicating he had a bomb outside. Viewing the evidence in the light most favorable to the State, we conclude Defendant's statement and behavior were sufficient evidence leading the victim to reasonably believe he possessed a bomb, a dangerous weapon, and would use it to perpetuate the robbery.
We note Defendant presented evidence he did not actually possess a dangerous weapon. Thus, there was no mandatory presumption of possession. Marshall, 188 N.C. App. at 751, 656 S.E.2d at 714 (citation omitted). However, what remained was a "mere permissive inference" of the element being met. Id. at 751, 656 S.E.2d at 714 (citation omitted). This is sufficient to overcome Defendant's motion to dismiss. Id. at 750-51, 656 S.E.2d at 714 (citation omitted).
We hold the evidence was sufficient to submit to the jury the charge of robbery with a dangerous weapon and overrule this assignment of error.
For the reasons stated above, the trial court properly denied Defendant's motion to dismiss.
Chief Judge McGEE and Judge ZACHARY concur.
Report per Rule 30(e).