dissenting.
I disagree with the conclusion reached by the majority that neither the state nor the defendant presented any evidence that the defendant did not use a firearm or dangerous weapon. Both victims offered testimony that they were unsure as to whether the robber possessed a firearm. Although Ms. Smith testified that the robber pointed his right jacket pocket at her as if he had a gun inside his pocket, she nonetheless concluded that she “didn’t see no gun.” Likewise, Ms. Jordan testified that the robber wielded something that “looked like a pistol, but it was wrapped up where I couldn’t see what it was.”
*301Under State v. Thompson, 297 N.C. 285, 254 S.E.2d 526 (1979) and State v. Joyner, 312 N.C. 779, 324 S.E.2d 841 (1985), the law presumes that an implement that appears to be a dangerous or deadly weapon is what it appears to be, in the absence of any evidence to the contrary. In Thompson, the court held that an eye-witness’s concession on cross-examination that what appeared to be a gun might not have been, in fact, a gun “was not of sufficient probative value” to constitute contrary evidence. Thus, it would appear that the evidence elicited from the victims in this case, standing alone, would not be enough to warrant a rejection of an instruction on the mandatory presumption.
However, in the subject case, the defendant in presenting an alibi defense, took the stand and testified in his own behalf that he did not “mess with guns.” Moreover, on cross-examination, when the prosecutor asked the defendant, “Mr. Williams, did you testify you don’t have a gun, you don’t mess with guns?,” the defendant replied, “Correct. I don’t own a gun.” This evidence, when coupled with the evidence that neither of the victims ever saw a gun, is evidence that the defendant did not have a gun. It was therefore error to give the mandatory presumption instruction in this case.