State v. Wash

• Court: Court of Appeals of North Carolina
• Decided: May 6, 2014
• Docket: 13-1152
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. -2- 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 -3- 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 -4- 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. -5- Judges McGEE and DAVIS concur.

Report per Rule 30(e).