State v. Goldston

WEBB, Justice. In his sole assignment of error, the defendant contends that the trial court erred in denying his motion to dismiss on the ground that the evidence was insufficient to support the defendant’s conviction of felony murder. The defendant does not argue that there was not substantial evidence that a murder and attempted robbery were committed. He argues that all the evidence was circumstantial and that there was not substantial evidence that he committed the crimes. In order to withstand a motion to dismiss, there must be substantial evidence of all elements of the offense. It is immaterial whether the evidence is circumstantial or direct. State v. Jones, 303 N.C. 500, 504, 279 S.E.2d 835, 838 (1981). A jury, when considering circumstantial evidence, may make an inference on an inference. State v. Childress, 321 N.C. 226, 232, 362 S.E.2d 263, 267 (1987); Kenneth S. Broun, Brandis and Broun on North Carolina Evidence § 82 (4th ed. 1993). There is strong circumstantial evidence in this case that the defendant shot and attempted to rob Mr. Cheek. Mr. Cheek was shot to death behind the cash register in his store. Four bullets had been fired from Mr. Cheek’s pistol; three of the bullets were found in the store, and one was removed from the defendant’s arm. The most logical conclusion from this evidence is that when a robbery attempt was made on Mr. Cheek, he fired four times to prevent the robbery, and one of the bullets struck the robber who was the defendant. It is hardly likely that Mr. Cheek fired four times in his store if a robbery was not in progress. It is also improbable that Mr. Cheek or some other person shot the defendant before or after the attempted robbery. *504 There was also evidence that the defendant went to considerable lengths to concoct a story that would explain his wound. This showed guilty knowledge and could be considered by the jury. We hold that the evidence was sufficient for the jury to find the defendant guilty of attempted robbery with a firearm and felony murder. The felony upon which the first-degree murder conviction was based in this case was the attempted robbery with a firearm. The jury did not convict the defendant based on premeditation and deliberation, and the attempted robbery conviction merged into the felony murder conviction. Therefore, judgment should have been arrested on the attempted robbery with a firearm conviction. State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981). The court consolidated the murder and attempted robbery with a firearm convictions and imposed a life sentence, which was required for the murder conviction. The defendant was thus not prejudiced by this consolidation. Accordingly, we arrest judgment on the sentence for attempted robbery with a firearm and do not disturb the sentence for felony murder. CASE NO. 93CRS1274, FIRST-DEGREE MURDER — NO ERROR. CASE NO. 93CRS1275, ATTEMPTED ROBBERY WITH A FIREARM — JUDGMENT ARRESTED.