SECTION 1 - COLQUITT
389 S.E.2d 286 (N.C. App. 1990)
Defendant was charged with attempted robbery with a firearm or other dangerous weapon. * * * The State's evidence tended to show that on 14 April 1988 a man, later identified as the defendant, entered the Zayres store on Eastway Drive in Charlotte and approached one of the cashiers. Defendant laid a note on the counter directing her to give him all the money. When the cashier explained that she could not open the case register without ringing up a sale, defendant responded by saying "I'm as scared as you are." Defendant then raised his shirt to reveal the butt of a revolver protruding above the waistband of his shorts, told the cashier not to say anything, and left the store. At some point during the exchange defendant picked up the note and returned it to his pocket.
At trial the court instructed the jury on attempted robbery with a firearm and attempted common law robbery. Defendant was convicted of attempted robbery with a firearm and received a 14-year sentence. Defendant appeals.
Defendant first assigns as error the trial court's denial of his motion to dismiss the charge of attempted robbery with a firearm. Defendant contends that there was no evidence that he displayed, used, or threatened to use the gun during the course of the attempted robbery, but that the evidence showed that his gun was used only to facilitate his escape.
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N.C.Gen.Stat. § 14-87(a) (1986) provides:
"Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another * * * shall be guilty of a Class D felony."
G.S. § 14-87(a) therefore defines two crimes: (1) armed robbery, which requires an actual taking, and (2) attempted armed robbery, which requires an attempted taking. The purpose of the statute is to increase the punishment for common law robbery when firearms or other dangerous weapons are used to commit a robbery, whether or not the robber succeeds in the effort to take the personal property. The statute provides that an attempted taking with a weapon be punished as severely as a completed taking under the same circumstances, and that both be punished more severely than forceful takings committed without dangerous weapons.
An attempted robbery with a dangerous weapon in violation of G.S. § 14-87(a) 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. Defendant does not deny that there was an intent to rob the Zayres' cashier nor that an overt act calculated to bring about a robbery took place. Rather, defendant argues that the attempted taking was over prior to the display of the gun and, therefore, the element of endangering or threatening the life of a person is absent.
In construing when a defendant's use of force or intimidation must occur in order to support a conviction for armed robbery, our Supreme Court has said that the commission of armed robbery as defined by G.S. § 14-87(a) does not depend upon whether the threat or use of violence precedes or follows the taking of the victim's property. Rather, where there is a continuous transaction, the temporal order of the threat or use of a dangerous weapon and the taking is immaterial. The defendant's use or threatened use of a dangerous weapon must precede or be concomitant with the taking, or be so joined with it in a continuous transaction by time and circumstances as to be inseparable. State v. Hope, 317 N.C. 302, 345 S.E.2d 361 (1986). In Hope, the defendant attempted to walk out of a store wearing a coat that was part of the store's merchandise. When one employee tried to stop the defendant from leaving, another employee discreetly pointed out that the defendant had a gun in his waistline. The employee closest to the defendant told the other employee to call the police. At that point the defendant threatened to kill the first employee. The gun was still visible at the defendant's waist, but he had not deliberately displayed, handled, or pointed the gun at anyone. The Court found this evidence sufficient to support the jury's finding that the defendant's use or threatened use of the gun was inseparable from the taking and induced the victims to part with the coat.
In this case, the evidence was sufficient to allow the jury to conclude that defendant's use or threatened use of his gun was concomitant with and inseparable from his robbery attempt.
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