{ "id": 8524935, "name": "STATE OF NORTH CAROLINA v. VANCE STERLING ALLEN", "name_abbreviation": "State v. Allen", "decision_date": "1985-05-07", "docket_number": "No. 842SC1085", "first_page": "449", "last_page": "455", "citations": [ { "type": "official", "cite": "74 N.C. App. 449" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "299 S.E. 2d 815", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "816" } ], "opinion_index": 0 }, { "cite": "60 N.C. App. 771", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524109 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/60/0771-01" ] }, { "cite": "324 S.E. 2d 841", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "844" }, { "page": "844" } ], "opinion_index": 0 }, { "cite": "312 N.C. 779", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750808 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/312/0779-01" ] }, { "cite": "312 S.E. 2d 681", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "67 N.C. App. 134", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525811 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/67/0134-01" ] }, { "cite": "455 U.S. 1038", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11385393, 11385354 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/455/1038-02", "/us/455/1038-01" ] }, { "cite": "283 S.E. 2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567383 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0201-01" ] }, { "cite": "286 S.E. 2d 546", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566261 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0126-01" ] }, { "cite": "304 S.E. 2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 549", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4705131 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0549-01" ] } ], "analysis": { "cardinality": 577, "char_count": 12214, "ocr_confidence": 0.779, "pagerank": { "raw": 8.138363859351185e-08, "percentile": 0.4721321590563774 }, "sha256": "69b866c3853b942d0e0808377d437745e55a8db078bf28c1d9bdb0b6f8945f06", "simhash": "1:c37b8022429c595c", "word_count": 2079 }, "last_updated": "2023-07-14T16:43:43.207286+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Whichard and Johnson concur." ], "parties": [ "STATE OF NORTH CAROLINA v. VANCE STERLING ALLEN" ], "opinions": [ { "text": "EAGLES, Judge.\nI\nDefendant first assigns as error the trial court\u2019s denial of his motion to suppress his inculpatory statement to police on the grounds that the statement was not made freely, voluntarily and understandingly and was taken in violation of defendant\u2019s constitutional rights. We find no error.\nDefendant contends that his physical and mental condition immediately prior to and at the time of the making of inculpatory statements \u201ccalls into serious question\u201d the voluntariness of his statement to police. We disagree.\nOur examination of the record reveals that a voir dire was held as to the voluntariness of the inculpatory statement given by defendant to police. Evidence offered at voir dire tended to show that defendant, rather than being incoherent when apprehended, was out of breath and had been perspiring heavily because he had been running. The only evidence tending to show that defendant may have been impaired was his bare assertion to Deputy Beach that he was \u201con coke.\u201d When defendant\u2019s statement was taken, defendant had \u201ccooled down\u201d and was \u201cvery composed,\u201d answering questions \u201cvery intelligently\u201d after being advised of his rights to remain silent and to have an attorney present. At the conclusion of the evidence on voir dire, the trial court made appropriate findings of fact and conclusions of law that defendant \u201cfreely, voluntarily and understandingly waived his constitutional right to remain silent and his right against self-incrimination by agreeing to answer questions after having been fully informed of said constitutional rights and others.\u201d Accordingly, the trial court ruled that defendant was \u201cnot entitled to suppress\u201d the inculpatory statements he made to police on 11 September 1983 at 12:15 a.m.\nFindings of fact made by the trial court following a voir dire hearing on the voluntariness of a defendant\u2019s confession are conclusive on appeal if supported by competent evidence in the record. State v. Jackson, 308 N.C. 549, 304 S.E. 2d 134 (1983); State v. Oxendine, 305 N.C. 126, 286 S.E. 2d 546 (1982); State v. Rook, 304 N.C. 201, 283 S.E. 2d 732 (1981), cert. denied, 455 U.S. 1038 (1982). The trial court\u2019s findings of fact and conclusions of law as to the voluntariness of defendant\u2019s inculpatory statement to police are supported by competent evidence and are binding on this court. Accordingly, the trial court did not err in denying defendant\u2019s motion to suppress.\nII\nDefendant next assigns as error the trial court\u2019s denial of his motion to dismiss the charge of robbery with a dangerous weapon made at the close of the State\u2019s evidence and at the close of all the evidence. We find no error.\nDefendant argues that since defendant stated to police that the weapon he used was a \u201ccap pistol\u201d and since the only weapon found in the possession of defendant was the rear portion of a revolver which alone was incapable of firing, there was insufficient evidence that the weapon used by defendant in the robbery was a dangerous weapon. We disagree. Our examination of the record reveals that the victim of the robbery and the witness both testified they thought defendant was holding a real gun during the robbery.\nIn State v. Joyner, 67 N.C. App. 134. 312 S.E. 2d 681 (1984), aff\u2019d 312 N.C. 779, 324 S.E. 2d 841 (1985), the Supreme Court explained:\nWhen a person commits a robbery by the use or threatened use of an implement which appears to be a firearm or other dangerous weapon, the law presumes, in the absence of any evidence to the contrary, that the instrument is what his conduct represents it to be \u2014 an implement endangering or threatening the life of the person being robbed. [Citations omitted.] Thus, where there is evidence that a defendant has committed a robbery with what appears to the victim to be a firearm or other dangerous weapon and nothing to the contrary appears in evidence, the presumption that the victim\u2019s life was endangered or threatened is mandatory.\nId. at 782, 324 S.E. 2d at 844 (1985).\n[W]hen any evidence is introduced tending to show that the life of the victim was not endangered or threatened, \u201cthe mandatory presumption disappears, leaving only a mere permissive inference\u201d . . . which . . . permits but does not require the jury to infer the elemental fact (danger or threat to life) from the basic fact proven (robbery with what appeared to the victim to be a firearm or other dangerous weapon). [Citations omitted.]\nId. at 783, 324 S.E. 2d at 844 (1985).\nAs applied here, there was proof of a robbery with what appeared to the victim to be a dangerous weapon. However, since there was evidence introduced by the State tending to show that the victim\u2019s life was not actually endangered or threatened, i.e. defendant had in his possession an inoperable weapon when arrested and stated to police that he had, in fact, used a cap pistol, there survived only a permissive inference of the elemental fact of danger or threat to life. State v. Joyner, supra. While the evidence that defendant was found with an inoperable pistol or that he used a cap pistol removed the mandatory presumption of danger or threat to life, allowing the jury to consider the lesser included offense of common law robbery, the evidence was not so compelling as to prevent a permissive inference of danger or threat to life or to require a directed verdict in defendant\u2019s favor as to the charge of robbery with a dangerous weapon. Id.\nWe note that defendant was arrested about twenty minutes after the robbery. This was ample time in which defendant could have discarded the barrel portion of the pistol which was found in his possession. Further, testimony at trial clearly shows that a gun barrel was seen in defendant\u2019s hand at the time of the robbery. Here, the trial court correctly instructed the jury on the crimes of robbery with a dangerous weapon and common law robbery. The jury inferred that the element of danger or threat to life was present and entered its verdict accordingly.\nIll\nDefendant next assigns as error the trial court\u2019s instruction that a cap pistol was included in and met the definition of the term \u201cdangerous weapon.\u201d\nIn its charge to the jury, the trial court stated:\nThe sixth thing the State must prove to you beyond a reasonable doubt for you to return a verdict of guilty of robbery with a dangerous weapon is that the defendant had a firearm or other dangerous weapon in his possession at the time he obtained the currency. The term \u201cdangerous weapon\u201d includes firearms. A .22 caliber pistol is a firearm within the meaning of the law as it applies to this case. The term \u201cdangerous weapon\u201d also includes pistols which look like firearms such as cap pistols.\nAn instrument is a dangerous weapon if it is apparently a weapon capable of inflicting a life threatening injury.\nAt the time of the robbery, there was no basis for the victim or the witness to conclude that the metal object with a protruding barrel brandished by defendant was anything other than a gun, a dangerous weapon. Further, the jury instruction here fully comports with the holding in State v. Quick, 60 N.C. App. 771, 299 S.E. 2d 815 (1983):\nWhether an instrument is a dangerous weapon or a firearm can only be judged by the victim of a robbery from its appearance and the manner of its use. We cannot perceive how the victims in [the] instant case could have determined with certainty that the firearm was real unless the defendant had actually fired a shot. We would not intimate, however, that a robbery victim should force the issue merely to determine the true character of the weapon.\nId. at 771, 772, 299 S.E. 2d at 816 (1983).\nThe evidence is clear that the object used by defendant in the commission of the robbery, notwithstanding the fact that it may have been an inoperable pistol or a cap pistol, was perceived by the victim to be a real gun. Accordingly, the trial court\u2019s instruction to the jury that a cap pistol could be a dangerous weapon if it is apparently capable of inflicting a life threatening injury, was not error.\nSince there is substantial evidence of each element of robbery with a dangerous weapon, we find in the trial\nNo error.\nJudges Whichard and Johnson concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Griffin, Martin and Cannon, by Glen E. Cannon, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. VANCE STERLING ALLEN\nNo. 842SC1085\n(Filed 7 May 1985)\n1. Criminal Law \u00a7 75.15\u2014 voluntariness of confession\nThe evidence supported the trial court\u2019s determination that defendant\u2019s in-custody statement was voluntary where the only evidence tending to show that defendant may have been impaired was his bare assertion to an officer that he was \u201con coke,\u201d and where the State\u2019s evidence tended to show that defendant was out of breath and perspiring when apprehended because he had been running, and that when his statement was taken defendant had cooled down, was very composed, and answered questions intelligently.\n2. Robbery \u00a7 4.3\u2014 evidence of inoperable weapon or cap pistol \u2014 sufficiency of evidence of armed robbery\nWhile the evidence that defendant was found with an inoperable pistol or that he used a cap pistol removed the mandatory presumption of danger or threat to life, allowing the jury to consider the lesser included offense of common law robbery, the evidence was not so compelling as to prevent a permissive inference of danger or threat to life or to require a directed verdict in defendant\u2019s favor as to the charge of robbery with a dangerous weapon.\n3. Robbery 8 5.2\u2014 instruction on cap pistol as dangerous weapon\nThe trial court did not err in instructing the jury that a cap pistol could be a dangerous weapon if it is apparently capable of inflicting a life threatening injury.\nAppeal by defendant from Bruce, Judge. Judgment entered 12 June 1984 in Superior Court, Martin County. Heard in the Court of Appeals 5 April 1985.\nThis is a criminal case in which defendant, Vance Sterling Allen, was convicted at a jury trial for the felony of robbery with a dangerous weapon. From a judgment imposing the mandatory minimum fourteen year prison sentence, defendant appeals.\nThe State\u2019s evidence tended to show that on 10 September 1983, Dorothy Davenport was employed by the Quick Snack store in Williamston. Shortly before 11:00 p.m., a black male wearing a mask entered the store, pointed what appeared to be a gun at Ms. Davenport and ordered her to give him the money in the cash register. Ms. Davenport handed the money which included \u201cone or two twenties\u201d to the man, later identified as defendant, as a car drove up to the store.\nMr. Rudy Brown drove up to the Quick Snack at approximately 11:00 p.m. As he approached the door, he met a man wearing a ski mask holding in his hand what appeared to Mr. Brown to be a revolver. The masked man ordered Mr. Brown to stop and then fled on foot, running east along U.S. Highway 64. Mr. Brown got back into his car and followed the fleeing man who entered a wooded area near Martin General Hospital. Mr. Brown then stopped at the residence of Chief Deputy Sheriff Jerry Beach, who lived nearby on U.S. Highway 64, and told him of the incident. Mr. Brown then drove back to Martin General Hospital where he observed a gray Ford Granada parked on a dirt path nearby. Mr. Brown pulled his car in front of the Ford Granada and observed a man he identified as the defendant sitting behind the steering wheel.\nAt about this same time, Williamston City Police officers and Deputy Beach arrived, took defendant into custody and conducted a search in which they found the rear portion of a revolver and a crumpled twenty dollar bill on defendant\u2019s person and another twenty dollar bill in the passenger compartment of the Ford Granada.\nDefendant told Deputy Beach that he was \u201con coke\u201d and Deputy Beach observed that defendant was sweating and completely out of breath and that defendant smelled of alcohol but was not intoxicated. Deputy Beach took defendant to the Martin County Sheriff\u2019s Department where defendant gave a statement. A search of the area where defendant was arrested produced a yellow ski mask. Neither the front portion of the revolver nor any other money was recovered.\nAttorney General Edmisten, by Assistant Attorney General Thomas B. Wood, for the State.\nGriffin, Martin and Cannon, by Glen E. Cannon, for defendant-appellant." }, "file_name": "0449-01", "first_page_order": 481, "last_page_order": 487 }