State v. Wash

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-1152
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Rowan County
Nos. 06 CRS 57896-97,
07 CRS 51270
JOVAN DAVID WASH
Appeal by defendant from judgments entered 4 April 2013 by
Judge W. Erwin Spainhour in Rowan County Superior Court. Heard
in the Court of Appeals 7 April 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Robert D. Croom, for the State.
Leslie C. Rawls for defendant-appellant.
ELMORE, Judge.
Jovan David Wash (defendant) appeals from judgments entered
upon jury verdicts finding him guilty of three counts of robbery
with a firearm. The trial court sentenced defendant to three
consecutive terms of 102 to 132 months imprisonment. Defendant
gave oral notice of appeal in open court.
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Defendant’s sole argument on appeal is that the trial court
erred in denying his motion to dismiss the robbery with a
firearm charge in file number 06 CRS 57897. Defendant contends
the State failed to establish all of the elements of robbery
with a firearm in that charge, because the State only presented
evidence that he possessed a firearm during the robbery and
never threatened or endangered the lives of the victims. We
disagree.
“This Court reviews the trial court’s denial of a motion to
dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650
S.E.2d 29, 33 (2007). “‘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 (quoting State v. Barnes, 334 N.C. 67, 75, 430
S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148 L. Ed.
2d 150 (2000). “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). “In making its determination, the trial court
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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, 451 S.E.2d 211, 223 (1994), cert. denied, 515
U.S. 1135, 132 L. Ed. 2d 818 (1995). “The elements of robbery
with a [firearm or other] dangerous weapon are: (1) the unlawful
taking or an attempt to take personal property from the person
or in the presence of another (2) by use or threatened use of a
firearm or other dangerous weapon (3) whereby the life of a
person is endangered or threatened.” State v. Hill, 365 N.C.
273, 275, 715 S.E.2d 841, 843 (2011) (citation and quotation
marks omitted).
At trial, the State presented testimony from Ms. Sloop
regarding the robbery charged in file number 06 CRS 57897. Ms.
Sloop testified that on 3 October 2006, she was working at the
Eckerd’s store located on East Innes Street in Salisbury, North
Carolina. Ms. Sloop stated that a man, later identified as
defendant, came into the store shortly before it closed wearing
a black ski mask and holding a handgun. Defendant asked her if
anyone else was in the store and directed her to go towards the
office. Defendant followed Ms. Sloop to the office, where he
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demanded that the manager give him the store’s money. Defendant
made Ms. Sloop stand in a corner where she could not see him
while the manager gathered the cash. After taking the money,
defendant instructed Ms. Sloop and her manager to start counting
and not to phone the police. Defendant then fled from the
store. At trial, the State played a surveillance video of the
robbery to the jury to illustrate Ms. Sloop’s testimony.
Contrary to defendant’s argument, the State’s evidence
established more than mere possession of the handgun by
defendant during the robbery. While it is unclear if defendant
ever actually pointed his handgun directly at either Ms. Sloop
or the manager, Ms. Sloop’s testimony established that defendant
brandished the handgun throughout the robbery, threatening her
life and the manager’s. See State v. Green, 2 N.C. App. 170,
173, 162 S.E.2d 641, 643 (1968) (“Exhibition of a pistol while
demanding money conveys the message loud and clear that the
victim’s life is being threatened.”). Accordingly, we hold the
State presented substantial evidence that defendant threatened
the lives of Ms. Sloop and the manager with a firearm during the
robbery, and thus the trial court did not err in denying
defendant’s motion to dismiss.
No error.
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Judges McGEE and DAVIS concur.
Report per Rule 30(e).