Opinion
No. COA09-914.
Filed January 19, 2010.
Forsyth County No. 08 CRS 058553.
Appeal by defendant from judgment entered 18 February 2009 by Judge Lindsay R. Davis, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 9 December 2009.
Attorney General Roy Cooper, by Special Deputy Attorney General Ted R. Williams, for the State. Michael J. Reece for defendant.
At the 16 February 2009 criminal session of Forsyth County Superior Court, a jury convicted defendant Barry Bevionta Richardson of robbery with a firearm. The trial court sentenced defendant to 48 to 67 months in prison. Defendant appeals. For the reasons discussed below, we reverse.
Facts
The evidence at trial tended to show the following. On August 2008 at approximately 11:00 p.m., Tony Walker withdrew one $20 bill from an ATM machine in Winston-Salem. Walker had been playing bingo and already had three $20 bills and two $10 bills in his wallet. As Walker put the withdrawn money into his wallet, two African-American men in their teens or early twenties, one taller and one shorter, ran up to him. The taller man held a gun to Walker's chest and demanded money. The shorter man went through Walker's pockets. After the taller man grabbed the money from Walker's wallet, the two assailants fled. Walker first called his daughter and a friend, then returned to playing bingo. Later, however, he approached a police officer in the bingo parlor parking lot and reported the robbery. Walker described the taller suspect as being about six feet tall with a slim build and wearing jeans and a hooded top. He described the shorter suspect as having "lighter" skin and wearing jeans with a shirt and jacket.
Defendant and another teenager, Darian Andrews, were stopped by a police officer at about 11:45 p.m. as they rode their bikes less than half a mile from the ATM where the robbery had taken place. Defendant admitted owning a .45 caliber handgun found on the ground near where he and Andrews were stopped. Each was wearing jeans with a white t-shirt. Defendant moved to dismiss following the State's case and again at the close of all evidence. The trial court denied defendant's motions.
Defendant made three assignments of error but brings forward only a single argument in his brief: that the trial court erred in denying his motion to dismiss the robbery charge when the State had failed to present sufficient evidence to sustain a conviction. As discussed below, we reverse.
Analysis Defendant argues that the trial court erred in denying his motion to dismiss. We agree.
In reviewing the trial court's denial of defendant's motion to dismiss, this Court
must evaluate the evidence in the light most favorable to the State. All contradictions must be resolved in favor of the State. The ultimate question is whether a reasonable inference of the defendant's guilt may be drawn from the circumstances. As long as the evidence supports a reasonable inference of defendant's guilt, it is up to the jury to decide whether there is proof beyond a reasonable doubt. This is true regardless of whether the evidence is direct or circumstantial. However, if the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator, the motion to dismiss must be allowed. This is true even though the suspicion aroused by the evidence is strong.
State v. Myers, 181 N.C. App. 310, 313, 639 S.E.2d 1, 3 (2007) (internal citations and quotation marks omitted).
In Myers, this Court affirmed the trial court's dismissal of murder charges on grounds that the evidence was insufficient that the defendant was the perpetrator of the crime. Id. at 315, 639 S.E.2d at 5. In that case, in the light most favorable to the State, the evidence tend[ed] to establish that: [the] defendants were in the vicinity of the Herring residence sometime in the early morning of 10 July 2001, that Barrow's body was found in this vicinity several hours later, that [the] defendants argued and struggled with an unidentified individual who groaned at one point during the struggle, and that [the] defendant Myers appeared to have blood and dirt on his shirt after the struggle. We note that none of the State's witnesses identified Barrow as the man involved in the struggle with [the] defendants, or as the man Mary Ann Essell saw in the road near the Herring residence. Furthermore, there was testimony indicating that there were other unidentified males in the area around the same time the murder is alleged to have occurred. Although the evidence here arouses strong suspicion, we conclude that it is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator, and thus the trial court correctly granted [the] defendants' motions to dismiss.
Id. at 315, 639 S.E.2d at 4-5.
Here, defendant contends the evidence at trial raised only a suspicion or conjecture that he committed the robbery. We believe the evidence here is even thinner than that present in Myers. There was no evidence that defendant was ever at the ATM where the robbery occurred; he was merely found riding his bike nearby on Conley Street more than forty-five minutes after the crime. Defendant and Andrews told the police they had spent the day at Andrews' home on Conley Street across the street from the ATM. The victim could not identify defendant as one of the men who robbed him. Defendant, the taller of the two youths, was not wearing a hooded top; the victim had described the taller suspect as wearing a hooded top. The victim had four $20 bills and two $10 bills taken from him. Defendant had two twenty dollar bills when he was stopped and Andrews had three twenties, two tens and two one dollar bills in his pocket. Thus, defendant and Andrews did not even have the same amount of money on their persons as was stolen. Further, twenty and ten dollar bills are exceedingly common denominations, the possession of which can hardly be deemed suspicious. The evidence here showed that defendant was a tall, thin, teenaged African-American and had a gun similar to that the victim described. They were found in the general area of the ATM with common denominations of money in their pockets. Like the Court in Myers, we conclude that this evidence does no more than raise a strong suspicion that defendant was the perpetrator of the robbery here. The trial court erred in denying defendant's motion to dismiss.
Reversed.
Judges HUNTER, Robert C., and JACKSON concur.
Report per Rule 30(e).