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2011-UP-008 - State v. Johnson

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Denen L. Johnson, Appellant


Appeal From Charleston County
R. Markley Dennis, Jr., Circuit Court Judge


Unpublished Opinion No. 2011-UP-008
Submitted January 1, 2011 – Filed January 24, 2011


AFFIRMED


Appellate Defender Elizabeth A. Franklin-Best, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Deborah R.J. Shupe, all of Columbia; and Solicitor Scarlett Anne Wilson, of Charleston, for Respondent.

PER CURIAM:  Denen L. Johnson appeals his conviction for armed robbery, arguing the circuit court erroneously denied his motion for a directed verdict.  He contends the victim's subjective belief was insufficient evidence to show he was armed or tried to induce the belief he was armed.  We affirm.[1]

An appellate court reviews the denial of a directed verdict by viewing the evidence and all reasonable inferences in the light most favorable to the State.  State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006).  "If there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, [an appellate court] must find the case was properly submitted to the jury."  Id. at 292-93, 625 S.E.2d at 648.  The circuit court may not consider the weight of the evidence.  Id. at 292, 625 S.E.2d at 648.

Robbery rises to armed robbery on the occurrence of one of two additional elements: (1) that the robber was "armed with a pistol . . . or other deadly weapon" or (2) that the robber "alleg[ed], either by action or words, he was armed while using a representation of a deadly weapon or any object which a person present during the commission of the robbery reasonably believed to be a deadly weapon."  S.C. Code Ann. § 16-11-330(A) (2003); State v. Dodd, 354 S.C. 13, 17, 579 S.E.2d 331, 333 (Ct. App. 2003).  A jury may infer the presence of a deadly weapon from circumstantial evidence.  State v. Muldrow, 348 S.C. 264, 268, 599 S.E.2d 847, 849 (2002).  However, if there is insufficient evidence the robber was armed with a deadly weapon, the second prong of the armed robbery statute "ensures that the use of [an] object which is in fact not a deadly weapon will support a conviction for armed robbery."  Id. at 269, 599 S.E.2d at 850.  A jury can conclude that a defendant was "armed under the requisite circumstances without having to conclude that he was, in fact, so armed."  State v. Jones, 342 S.C. 248, 253, 536 S.E.2d 396, 398 (Ct. App. 2000).

Here, the State presented sufficient evidence to meet both prongs of the armed robbery statute.  Contrary to Johnson's assertion, the victim's subjective belief was not the State's only evidence relevant to the armed robbery charge.  Rather, the State's evidence included the robbery note, the surveillance video, and the victim's testimony of her observations during the robbery.  The evidence showed that Johnson told the victim he would hurt her if she did not comply with his demands and put his hand under his shirt as if he was pointing an object toward her.  Moreover, the victim testified she thought he was armed with a gun.  Therefore, sufficient evidence existed for a jury to reasonably infer Johnson was armed with a deadly weapon.  Furthermore, the State's evidence sufficiently showed Johnson alleged or purported he was armed while using either a representation of or an object reasonably believed to be a deadly weapon.  Accordingly, the decision of the circuit court is

AFFIRMED.

FEW, C.J., SHORT and WILLIAMS, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.