State v. Bell, 227 N.C. App. 339 (May. 21, 2013)

(1) Notwithstanding the defendant’s testimony that the gun used in a robbery was unloaded, the trial court properly denied the defendant’s motion to dismiss an armed robbery charge. The victim testified that the defendant entered her business, pointed a gun at her and demanded money. The defendant testified that he unloaded the gun before entering. He also testified that upon leaving he saw the police and ran into the woods where he left his hoodie and gun and jumped off of an embankment. On appeal, the defendant argued that the evidence was insufficient because it showed that the gun was unloaded. Because of the defendant’s testimony, the mandatory presumption of danger or threat to life arising from the defendant’s use of what appeared to the victim to be firearm disappeared. However, a permissive inference to that effect remained. Given the defendant’s flight and attempt to hide evidence, the use of the permissive inference was not inappropriate. (2) The trial court did not err by declining to give a jury instruction regarding the mere possession of a firearm. The defendant argued that the trial court should have given the instruction in footnote six to element seven of N.C.P.I.—Crim. 217.20. That footnote instructs that where use of a firearm is in issue, the trial court should instruct that mere possession of the firearm does not, in itself, constitute endangering or threating the life of the victim. Here, however, the evidence showed that the defendant displayed and threatened to use the weapon by pointing it at the victim; the mere possession instruction therefore was not required.