State v. Torbit , 77 N.C. App. 816 ( 1985 )

336 S.E.2d 122 (1985)

STATE of North Carolina
v.
Willie James TORBIT, Jr.

No. 8521SC639.

Court of Appeals of North Carolina.

November 19, 1985.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Sueanna P. Peeler, Raleigh, for the State.

Acting Appellate Defender Malcolm Ray Hunter, Jr., Raleigh, for defendant-appellant.

HEDRICK, Chief Judge.

Defendant's two assignments of error both raise the issue of whether the evidence is sufficient for the jury to find that he attempted to rob Ms. Cook. He first contends that neither his words nor his conduct evidenced any intent to rob Ms. Cook, and that the charge of attempted armed robbery should not have been submitted to the jury. We disagree. The elements of attempted armed robbery are: (1) the unlawful attempted taking of personal property from another, (2) the possession, use or threatened use of "firearms or other dangerous weapon, implement or means," and (3) danger or threat to the life of the victim. State v. Joyner, 295 N.C. 55, 243 S.E.2d 367 (1978). In this case, defendant held a long butcher or hunting knife to Ms. Cook's throat and threatened her, according to her testimony, by saying that "if I gave him any trouble, he would mess me up but good." Ms. Cook's testimony also shows that it was her habit to keep her purse on the floor in front of the passenger seat. The jury could therefore properly infer that the money clip found on the floor in front of the driver's seat had been in the possession of defendant, who had unlawfully attempted to take it from Ms. Cook. This argument is overruled.

Defendant next contends that the indictment charging him with kidnapping for the purpose of facilitating the commission of armed robbery is not supported by the evidence. He argues that the State did not prove the particular intent alleged, as it must do when an indictment alleges an intent to commit a particular felony. State v. Alston, 310 N.C. 399, 312 S.E.2d 470 (1984). We again disagree. Much of the evidence would permit a jury to infer that defendant attempted to rob Ms. Cook. He forced his way into her car, asked for her purse, looked through it, then gave it back to her. There was no evidence that defendant attempted or intended to sexually molest Ms. Cook. We hold that the evidence was sufficient to submit the charge to the jury and for the jury to infer that defendant had the intent to rob Ms. Cook. This assignment of error is overruled.

Defendant had a fair trial free from prejudicial error.

No error.

WHICHARD and JOHNSON, JJ., concur.