              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA19-151

                              Filed: 18 February 2020

Henderson County, No. 17CRS52478

STATE OF NORTH CAROLINA

             v.

SAMUEL NATHANIEL ANGRAM, III, Defendant.


      Appeal by defendant from judgment entered on or about 28 September 2018

by Judge R. Gregory Horne in Superior Court, Henderson County. Heard in the Court

of Appeals 30 October 2019.


      Attorney General Joshua H. Stein, by Assistant Attorney General Rajeev K.
      Premakumar, for the State.

      Mark Hayes, for defendant-appellant.


      STROUD, Judge.


      Defendant appeals his conviction for robbery with a dangerous weapon.

Because the State failed to present substantial evidence of each element of aiding and

abetting the commission of the robbery with a dangerous weapon by defendant’s

brother, Michael Angram, the trial court should have granted defendant’s motion to

dismiss. We therefore reverse.

                                    I.     Background

      The State’s evidence tended to show that on 11 May 2017, Mr. Marvin Price

went to Mountain Credit Union to close his account which contained approximately
                                  STATE V. ANGRAM

                                  Opinion of the Court



$25,000. Mr. Price received about $24,000 in cash and put about $300-400 in his

wallet; the rest of the money was in an envelope. At least four employees were

working in the credit union when Mr. Price withdrew his money.

      When Mr. Price arrived home, he began to get out of his car and was robbed at

gunpoint. The robber asked Mr. Price, “where is the 25,000[,]” and Mr. Price claimed

he had taken it to another bank although he had not. Ultimately the robber only took

Mr. Price’s wallet and did not find the envelope. Mr. Price saw no one with the robber

and did not see a vehicle the robber used to get to or leave his home. Mr. Michael

Angram, defendant’s brother, was convicted of robbing Mr. Price with a dangerous

weapon.

      One credit union employee, Ms. Robinson, had a child with defendant,

Michael’s brother. The State jointly tried both defendant and Ms. Robinson for

charges of conspiracy to commit robbery with a dangerous weapon and robbery with

a dangerous weapon.      The jury was instructed on aiding and abetting as to the

robbery charge, and both were convicted of robbery with a dangerous weapon. Both

were acquitted of the charge of conspiracy to commit robbery with a dangerous

weapon. Both defendant and Ms. Robinson appealed, but this opinion addresses only

defendant’s appeal.

                                 II.    Motion to Dismiss




                                         -2-
                                  STATE V. ANGRAM

                                  Opinion of the Court



      Defendant argues that the trial court should have allowed his motion to

dismiss due to the insufficiency of the evidence.

                   The standard of review on a motion to dismiss is
             whether there is substantial evidence of each essential
             element of the offense charged and of the defendant being
             the perpetrator of the offense.
                   Substantial evidence is relevant evidence that
                   a reasonable mind might accept as adequate
                   to support a conclusion. In ruling on a motion
                   to dismiss, the trial court must examine the
                   evidence in the light most favorable to the
                   State, and the State is entitled to every
                   reasonable inference and intendment that can
                   be drawn therefrom.

State v. Clagon, 207 N.C. App. 346, 350, 700 S.E.2d 89, 92 (2010) (citations and

quotation marks omitted).

                    Our courts have held that the essential elements of
             the crime of robbery with a dangerous weapon are: (1) the
             unlawful taking or attempted taking of personal property
             from another; (2) the possession, use or threatened use of
             firearms or other dangerous weapon, implement or means;
             and (3) danger or threat to the life of the victim.

State v. Van Trusell, 170 N.C. App. 33, 37, 612 S.E.2d 195, 198 (2005) (citation,

quotation marks, and italics omitted).

      Defendant was charged, but not convicted, with conspiracy to commit robbery

with a dangerous weapon based upon an alleged conspiracy with Michael and Ms.

Robinson. Defendant was convicted of robbery with a dangerous weapon based upon




                                         -3-
                                   STATE V. ANGRAM

                                   Opinion of the Court



a theory of aiding and abetting the robbery by Michael.      The trial court instructed

the jury regarding the theory of aiding and abetting:

                    The second count that the State must prove beyond
             a reasonable doubt as to this charge is that the defendant
             knowingly advised, instigated, encouraged, procured or
             aided the other person to commit that crime.
                    And, third, that the defendant’s action or statements
             caused or contributed to the commission of the crime by
             that other person.

      Defendant argues the State presented no substantive evidence he participated

in the robbery or that he “knowingly advised, instigated, encouraged, procured, or

aided” Michael in committing the robbery. Defendant notes there are two theories

upon which the State alleges defendant aided Michael:          “through some kind of

communication – by telling him about the money, or if Ms. Robinson told Michael

about the money, then by encouraging Michael to rob Mr. Price” or “by driving him

to or from Mr. Price’s house.” Defendant contends the State failed to present any

substantive evidence of either theory of aiding and abetting and also failed to present

sufficient evidence to support a valid inference of either theory.

      Defendant begins his argument by focusing on testimony by Detective Aaron

Lisenbee regarding his interview of Michael. The State called Michael as a witness.

Michael had previously been convicted of the robbery, but at defendant’s trial, he

testified he did not remember anything about the robbery and did not know why he

was convicted of robbing Mr. Price. Michael did not testify to anything incriminating



                                          -4-
                                    STATE V. ANGRAM

                                    Opinion of the Court



as to defendant or Ms. Robinson. The State then called Detective Lisenbee to testify

about his interview of Michael during his investigation of the robbery. The interview

was videotaped but the recording was not in evidence.

       The State had Detective Lisenbee testify, over defendant’s objections, to the

contradictions between Michael’s trial testimony – which was minimal as he claimed

not to remember anything – and what he had said during the interview.               In

responding to defendant’s objections, the State emphasized it was not offering

Detective Lisenbee’s testimony about Michael’s statements as substantive evidence:

“It is solely being offered to show that Michael Angram is not telling the truth to the

jury . . . . We are not trying to get it in as substantive.”

       All of Detective Lisenbee’s testimony regarding the interview with Michael was

entered only for impeachment purposes and not as substantive evidence.              In

summary, the evidence admitted only for purposes of impeachment was that

defendant told him about the $25,000 bank withdrawal and drove Michael to Mr.

Price’s home. The trial court gave the jury a limiting instruction noting that the

detective’s statements could only be considered for purposes of Michael’s credibility

and not “as evidence of the truth of what was said[;]” in other words, the testimony

was not substantive evidence.

       In its brief, the State does not seek to use Detective Lisenbee’s testimony as

part of its summary of evidence against defendant, as is appropriate since the



                                           -5-
                                        STATE V. ANGRAM

                                        Opinion of the Court



testimony was not substantive evidence and cannot be used to prove the truth of any

facts asserted. See generally State v. Alston, 131 N.C. App. 514, 517, 508 S.E.2d 315,

317 (1998) (noting that hearsay evidence admitted only as to state of mind was not to

be used as substantive evidence).1            Thus, we will address only the substantive

evidence presented by the State for purposes of considering whether defendant’s

motion to dismiss should have been allowed. Here, the State’s substantive evidence

regarding defendant’s involvement in the robbery of Mr. Price was that defendant

was Michael’s brother and that while Mr. Price was in the credit union, Ms. Robinson,

one of the four employees on duty, spoke to defendant. The evidence also shows that

all of the employees used their cell phones while Mr. Price was in the credit union,

and all were questioned by law enforcement officers.

       One employee, Ms. Heather Highland, assisted Mr. Price. One employee, Ms.

Melissa Cameron was in the process of purchasing a new vehicle with a loan. Ms.

Cameron testified that she expressed concern to Ms. Highland by saying, “What if he

were to get robbed?” Another employee, Ms. Charne Tucker, was a childhood friend

of Michael, but she denied having Michael’s phone number.                      A third employee,

Kristen Walker, did not testify. Another employee, Ms. Robinson, acknowledged

speaking with defendant, her child’s father, on the phone, while Mr. Price was in the


1A portion of State v. Alston, 131 N.C. App. 514, 508 S.E.2d 315, was superseded on other grounds by
North Carolina General Statute § 14-415.1 (2019) regarding possession of firearms: “Alston is
super[s]eded by the current language of N.C. Gen. Stat. § 14–415.1 which contains no time bar for this
charge.” State v. Gaither, 161 N.C. App. 96, 103, 587 S.E.2d 505, 510 (2003).

                                                -6-
                                 STATE V. ANGRAM

                                 Opinion of the Court



credit union.   Detective Lisenbee wanted to examine Ms. Robinson’s phone and

obtained a search warrant for the phone, but according to Detective Lisenbee they

did not extract anything of “evidentiary value” from Ms. Robinson’s phone.

      To be clear, from our reading of the transcript it is not in evidence that Ms.

Robinson initiated the phone call to defendant though that is the inference the State

would like us to make. Ms. Robinson acknowledged she “talked” to defendant but

Detective Lisenbee’s testimony does not clarify whether Ms. Robinson called

defendant or he happened to call her while Mr. Price was in the credit union. When

questioned on redirect Detective Lisenbee could not confirm Ms. Robinson’s

acknowledgement to him she had spoken with defendant during the relevant time,

                   Q.    Detective Lisenbee, Mr. Edney asked you if
             you knew -- how you knew whether Christina Robinson
             talked to Samuel Angram that day.

                    A.    Correct.

                    Q.    How do you know that?

                    A.    She told me.

                    Q.    And what exactly did Christina Robinson tell
             you?

                   A.    That she talked to . . . [defendant] on the
             phone while Mr. Price was in the bank.

                    Q.   And he asked you if you were able to confirm
             that information. Were you?

                    A.    No.


                                         -7-
                                   STATE V. ANGRAM

                                   Opinion of the Court




                   Q.     Were you able to confirm it through the phone
             records?

                     A.   I was not.

                     Q.   Were you able to confirm it through anybody
             else?

                     A.   No.

When questioned on cross-examination about retrieving data from any of the other

employee’s phones Detective Lisenbee was asked, “But you never even tried?” to

which he responded: “We did not see a need to try.”

      The State contends that based only upon the relationship between Ms.

Robinson, defendant, and Michael, and the fact that Ms. Robinson spoke to defendant

while Mr. Price was in the bank,

             [a] reasonable jury could conclude that Christian Robinson,
             upon learning of Mr. Price’s withdrawal of nearly $25,000
             in cash, obtained his address from the driver’s license
             photocopy in the employee workstation directly next to
             her’s, left her employee workstation to call the defendant
             to inform him of this situation, that the defendant then
             communicated with his brother, with whom he is close, to
             inform and encourage his brother . . . to rob Mr. Price at
             gunpoint.

      Although circumstantial evidence may be sufficient to prove a crime, pure

speculation is not, and the State’s argument is based upon speculation. See generally

State v. Weston, 197 N.C. 25, 29, 147 S.E. 618, 621 (1929).

             [W]hen the essential fact in controversy in the trial of a


                                          -8-
                                  STATE V. ANGRAM

                                   Opinion of the Court



             criminal action can be established only by an inference
             from other facts, there must be evidence tending to
             establish these facts. Evidence which leaves the facts from
             which the inference as to the essential fact must be made
             a matter of conjecture and speculation, is not sufficient,
             and should not be submitted to the jury.

Id.    Without the information in Detective Lisenbee’s testimony which was not

admitted for substantive purposes, there is not substantial evidence to support

defendant’s conviction of aiding and abetting robbery with a dangerous weapon.

Detective Lisenbee’s testimony, admitted only for the purpose of impeachment, about

Michael’s communication with defendant and defendant’s driving him to Mr. Price’s

home cannot be used to prove that defendant aided and abetted robbery with a

dangerous weapon.

      According to the State a “reasonable” juror could infer from the evidence that

Ms. Robinson obtained Mr. Price’s address from his drivers license, although she was

not the employee assisting him; Ms. Robinson then called and informed defendant of

Mr. Price’s address and withdrawal of funds; defendant then contacted Michael and

encouraged him to rob Mr. Price. The State’s argument requires not just one but at

least three layers of inference built solely on knowledge of Mr. Price’s transaction and

Ms. Robinson’s phone call with the father of her child. The trial court should have

granted defendant’s motion to dismiss due to the insufficiency of the evidence.

Because we must reverse the judgment, we need not address defendant’s other issue

on appeal.


                                          -9-
                                STATE V. ANGRAM

                                Opinion of the Court



                                   III.    Conclusion

      Because the State failed to present substantial evidence that defendant aided

or abetted Michael in committing the armed robbery of Mr. Price, the trial court

should have granted defendant’s motion to dismiss. We therefore reverse.

      REVERSED.

      Judges ZACHARY and MURPHY concur.




                                       - 10 -
