State v. Legins
State v. Legins
Dissenting Opinion
dissenting.
Because the trial court erred by denying defendant’s motion to dismiss the charge of attempted robbery with a dangerous weapon, I respectfully dissent. Even considered in the light most favorable to the State, there is insufficient evidence in the record that defendant’s purpose was to rob or take the property of another.
“ ‘An attempted robbery with a dangerous weapon occurs when a person, with the specific intent to unlawfully deprive another of personal property by endangering or threatening his life with a dangerous weapon, does some overt act calculated to bring about this result.’ ” State v. Gillis, 158 N.C. App. 48, 56, 580 S.E.2d 32, 38 (2003) (quoting State v. Allison, 319 N.C. 92, 96, 352 S.E.2d 420, 423 (1987)) (citations omitted). To sustain a charge of attempted armed robbery, “there must be evidence of an intent to rob the victim.” State v. Miller, 344 N.C. 658, 668, 477 S.E.2d 915, 921 (1966); see also State v. McDowell, 329 N.C. 363, 407 S.E.2d 200 (1991) (display of weapon without other indicias of intent to rob held insufficient to show attempt to rob where belongings of victim left undisturbed). “ ‘Evidence is not substantial if it arouses only a suspicion about the fact to be proved, even if the suspicion is strong.’ ” McDowell, 329 N.C. at 389, 407 S.E.2d at 215 (quoting State v. Reese, 319 N.C. 110, 139, 353 S.E.2d 352, 368 (1987)).
Here, defendant possessed a weapon and assaulted the storekeeper. That this event occurred in a convenience store that sells goods to others, and that defendant negotiated the counter where the cash register was located in a quest to attack the storekeeper and therefore placed himself in “close proximity to the store’s two cash registers” as the majority observes, are insufficient circumstances to constitute substantial evidence that defendant had the requisite spe
Because the evidence, at best, raises only a suspicion that defendant possessed the requisite intent to rob, the trial court erred by failing to dismiss the attempted robbery with a dangerous weapon charge.
Opinion of the Court
On 2 July 2005, Tamon Jacoby Legins (“defendant”) entered the Wilco Hess convenience store in Winston-Salem, North Carolina. The store’s two clerks working at the time were Keith Deberry (“Deberry”) and Wayne Wagoner (“Wagoner”). Upon entering the store, defendant went into the store’s bathroom and proceeded to smoke crack. After a few minutes, defendant exited the bathroom carrying a steak knife in his hand. He walked towards the counter where Deberry was working on one of the store’s two cash registers. Defendant then stepped into the area behind the store’s counter and charged at Deberry with the knife raised.
Defendant waved the knife in the air in a slicing motion with the serrated edge facing Wagoner and Deberry. Once Deberry noticed defendant, Deberry grabbed a trash can and used it “to get a distance between him and [defendant]. So, that way, you know, [defendant] couldn’t get a good swing at him.” Deberry testified that he feared defendant was going to stab him.
Suddenly, defendant fell into the corner of the counter and then onto the floor. Deberry and Wagoner immobilized defendant by pressing the trash can down onto him. Wagoner “held his knees ... to the trash can and leaned back, so that way if [defendant] did start swinging [the knife], he wouldn’t get a good swing at me. And I yelled at [Deberry] to call 9-1-1.”
On 22 August 2005, defendant was indicted on one count of attempted robbery with a dangerous weapon and on the aggravating factor that he was on probation or parole at the time the offense was committed. Ini a superceding indictment filed 12 September 2005, defendant was also charged with assault on a government officer. Following a trial by jury, defendant was found guilty of attempted robbery with a dangerous weapon and assault on an officer. For the attempted robbery conviction, defendant was sentenced to term of imprisonment of 103 to 133 months. For the assault conviction, defendant was sentenced to 75 days imprisonment.
On 16 May 2006, this Court granted defendant’s petition for writ of certiorari, thereby enabling us to review defendant’s conviction.
Defendant’s sole argument on appeal is that the trial court erred in submitting the charge of attempted robbery with a dangerous weapon to the jury, based upon an insufficiency of the evidence to support the charge. Specifically, defendant contends there was no evidence showing defendant’s intent to commit a robbery, nor was there evidence showing an overt act in furtherance of such intent.
“In ruling on a defendant’s motion to dismiss, the trial court must determine whether the State has presented substantial evidence (1) of each essential element of the offense and (2) of the defendant’s being the perpetrator.” State v. Boyd, 177 N.C. App. 165, 175, 628 S.E.2d 796, 804 (2006). “ ‘Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Id. (quoting State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001)). “When considering a motion to dismiss, the trial court must view all of the evidence presented ‘in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.’ ” Id. (quoting State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert.
Contradictions and discrepancies in the testimony or evidence are for the jury to resolve and will not warrant dismissal. State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996). Determinations of the credibility of witnesses are issues for the jury to resolve, and they do not fall within the role of the trial court or the appellate courts. See State v. Hyatt, 355 N.C. 642, 666, 566 S.E.2d 61, 77 (2002) (“[I]t is the province of the jury, not the court, to assess and determine witness credibility.”), cert. denied, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003). When a trial court is considering a defendant’s motion to dismiss based upon an insufficiency of the evidence presented, the trial court “is concerned only with the sufficiency of the evidence to carry the case to the jury and not with its weight.” State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
“The essential elements of attempted armed robbery, as set forth in G.S. sec. 14-87(a), are: (1) the unlawful attempted taking of personal property from another; (2) the possession, use or threatened use of a firearm or other dangerous weapon, implement or means; and (3) danger or threat to the life of the victim.” State v. Rowland, 89 N.C. App. 372, 376, 366 S.E.2d 550, 552 (1988). The offense of attempted armed robbery is completed once a person, with the requisite intent to deprive another of property, commits an overt act calculated to achieve that end. State v. Miller, 344 N.C. 658, 667, 477 S.E.2d 915, 921 (1996). To constitute an overt act, an act “need not be the last proximate act to the consummation of the offense . . . .” Id. at 668, 477 S.E.2d at 921 (quotation omitted). However, the act must go beyond mere preparation but fall short of the completed offense. State v. Squires, 357 N.C. 529, 535, 591 S.E.2d 837, 841 (2003), cert. denied, 541 U.S. 1088, 159 L. Ed. 2d 252 (2004). “ .‘Intent is an attitude or emotion of the mind and is seldom, if ever, susceptible of proof by direct evidence^] it must ordinarily be proven by circumstantial evidence, i.e., by facts and circumstances from which it may be inferred.’ ” State v. Mangum, 158 N.C. App. 187, 192, 580 S.E.2d 750, 754 (quoting State v. Banks, 295 N.C. 399, 412, 245 S.E.2d 743, 752 (1978)), disc. review denied, 357 N.C. 510, 588 S.E.2d 378 (2003).
As noted, the trial court’s role in ruling on a motion to dismiss based upon an insufficiency of the evidence is to determine the sufficiency of the evidence to carry the case to the jury, and not to determine the evidence’s weight or the credibility of any witnesses. Powell, 299 N.C. at 99, 261 S.E.2d at 117; Hyatt, 355 N.C. at 666, 566 S.E.2d at 77. At trial, the evidence showed that defendant was familiar with the convenience store and its layout, and that the cashiers knew defendant as a previous customer. On 2 July 2005, defendant entered the store and proceeded to go into the bathroom and smoke crack cocaine. When defendant came out of the bathroom, he held a steak knife in his hand, and immediately walked towards the counter at the front of the store where two cash registers were located. Defendant then went into the area behind the counter and charged at one of the clerks, placing himself in close proximity to the store’s two cash registers. At the same time defendant stepped behind the counter, he held the knife in front of him and moved it in a slicing motion in the direction of the two store clerks, with the serrated edge of the knife facing the clerks. Deberry testified that he was afraid that defendant was going to stab him.
Based upon the evidence presented at trial, we hold there was sufficient evidence for the charge of attempted armed robbery to be submitted to the jury. Defendant’s actions constitute sufficient evidence that a reasonable mind might conclude defendant had the intent to commit robbery and that he did an overt act in furtherance
No error.
Reference
- Full Case Name
- State of North Carolina v. Tamon Jacoby Legins
- Cited By
- 4 cases
- Status
- Published