STATE OF NORTH CAROLINA
v
.
BOBBY JOE REID, JR.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Grady L. Balentine, Jr., for the State.
Jarvis John Edgerton, IV for defendant-appellant.
HUNTER, Judge.
Bobby Joe Reid, Jr. (“defendant”) appeals convictions of
robbery with a dangerous weapon, financial transaction card theft,
and financial transaction card fraud. We find no error.
The State's evidence tended to show that on 27 June 2000 at
approximately 7:15 p.m., Elizabeth Stanaland was placing her purse
and some prescriptions she had just purchased in the back seat of
her car in a CVS Pharmacy parking lot. As Stanaland was placing
the items in her car, someone came up behind her and struck her in
the face with an object. Stanaland was hit so hard with the object
that her knees buckled and she fell to the ground. The assailantthen began pulling at her purse strap, which was still around her
arm, consequently dragging Stanaland across the ground. The
assailant was able to take her purse. Stanaland lay “dazed” in the
parking lot for a few moments before being able to return to the
pharmacy for help.
Stanaland testified that, although she was not able to see
what the assailant used to hit her, she did not believe it was his
hand. She testified that the object had a smooth surface, but that
it was “firm” and “rigid enough to have . . . exerted some force.”
The force of the object loosened several of Stanaland's teeth and
drove her upper teeth through her lower lip, requiring twenty-five
stitches.
On the afternoon of 28 June 2000, the day following the
robbery, defendant entered a department store and attempted to buy
several hundred dollars' worth of clothes using Stanaland's credit
card. The store's employees notified police, and defendant was
apprehended. Defendant was carrying a briefcase on his person that
contained the contents of Stanaland's stolen purse, including her
wallet, checkbooks, prescription glasses, medicine, business cards,
soap dispenser, and hair accessories. Stanaland identified all of
the items found in defendant's briefcase, as well as the credit
card defendant attempted to use, as the items stolen from her the
previous evening. On 7 February 2001, a jury convicted defendant of felonious
financial transaction card theft, non-felonious financial
transaction card fraud, and robbery with a dangerous weapon. The
trial court consolidated the convictions, and sentenced defendant
to a single term of 117 to 150 months' imprisonment. Defendant
appeals.
Defendant makes five arguments on appeal: (1) the evidence
was insufficient to support his conviction for robbery with a
dangerous weapon; (2) the evidence was insufficient to support his
conviction for financial transaction card theft; (3) the conviction
for financial transaction card theft must be vacated to protect
defendant from double jeopardy; (4) the trial court
unconstitutionally prevented defendant from representing himself;
and (5) the trial court unconstitutionally removed defendant from
the courtroom during closing arguments. For reasons discussed
herein, we hold that the trial court did not commit prejudicial
error, and defendant received a fair trial.
Defendant first argues that the trial court erred in denying
his motion to dismiss the charge of robbery with a dangerous weapon
for insufficient evidence that defendant perpetrated the crime and
that he did so using a dangerous weapon. We disagree. In ruling
upon a motion to dismiss, the trial court must determine if the
State has presented substantial evidence of each essential elementof the offense. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d
245, 255 (2002). “'Evidence is substantial if it is relevant and
adequate to convince a reasonable mind to accept a conclusion.'”
Id. at 336, 561 S.E.2d at 255 (citation omitted). In considering
the motion, the trial court must view the evidence in the light
most favorable to the State, giving the State the benefit of every
reasonable inference to be drawn from the evidence, and resolving
any contradictions in favor of the State. Id. at 336, 561 S.E.2d
at 256.
In the present case, the State presented sufficient evidence
that defendant perpetrated the robbery under the doctrine of recent
possession. This doctrine allows the jury to infer that the
possessor of the stolen property is guilty of its taking. State v.
Pickard, 143 N.C. App. 485, 487, 547 S.E.2d 102, 104, disc. review
denied, 354 N.C. 73, 553 S.E.2d 210 (2001). The doctrine of recent
possession applies where the State can prove three things: (1)
that the property was stolen; (2) that the defendant had possession
of this stolen property, possession being that “'he is aware of its
presence and has, either by himself or together with others, both
the power and intent to control its disposition or use'”; and (3)
“'that the defendant had possession of this property so soon after
it was stolen and under such circumstances as to make it unlikelythat he obtained possession honestly.'” Id. at 487-88, 547 S.E.2d
at 104 (citation omitted).
Here, the State presented evidence that the contents of
Stanaland's purse were stolen, and that the entire contents of the
purse were recovered from defendant's possession upon his attempt
to make a substantial purchase using Stanaland's credit card less
than twenty-four hours after the robbery. The stolen goods were
located in a briefcase that defendant carried on his person,
thereby allowing the inference that defendant was aware that he
possessed the stolen goods, and had both the power and intent to
control them. Taking this evidence in the light most favorable to
the State, there was sufficient evidence establishing defendant's
identity as the perpetrator to allow for the jury to consider the
evidence.
Likewise, the State presented sufficient evidence that
defendant used a dangerous weapon to perpetrate the robbery.
Whether an instrument constitutes a dangerous weapon depends upon
the nature of the instrument and the manner in which it was used,
State v. Peacock, 313 N.C. 554, 563, 330 S.E.2d 190, 196 (1985), as
well as the extent of the victim's injuries, State v. Greene, 67
N.C. App. 703, 706, 314 S.E.2d 262, 264, appeal dismissed and disc.
review denied, 311 N.C. 405, 319 S.E.2d 276 (1984). In State v.
Sturdivant, 304 N.C. 293, 283 S.E.2d 719 (1981), our Supreme Courtobserved that “[n]o item, no matter how small or commonplace, can
be safely disregarded for its capacity to cause serious bodily
injury or death when it is wielded with the requisite evil intent
and force.” Id. at 301 n.2, 283 S.E.2d at 725 n.2 (citing various
cases in which such common place items as brooms, nail clippers,
baseball bats, plastic bags, soda bottles, and rocks have been held
to constitute deadly weapons).
In Greene, we held that although the State failed to present
evidence of the exact weapon used to hit the victim on the back of
the head during a robbery, the evidence was sufficient to establish
that the object was a dangerous weapon where the blow stunned the
victim, knocking him to the ground, and caused a hematoma and
laceration on the victim's head requiring four to five stitches.
Greene, 67 N.C. App. at 706, 314 S.E.2d at 264. Similarly, in
Peacock, we held that a glass vase used to strike the victim's head
constituted a dangerous weapon where the blow inflicted lacerations
on the victim and was sufficient to render her unconscious.
Peacock, 313 N.C. at 563, 330 S.E.2d at 196.
In this case, Stanaland testified that she was hit with a
firm, rigid object that she did not believe to be a hand. The
object exerted such force that it drove Stanaland's top teeth
through her lower lip, requiring twenty-five stitches, and caused
several other teeth to loosen. When hit with the object,Stanaland's knees buckled and she fell to the ground where she lay
dazed for an unknown amount of time. Taken in the light most
favorable to the State, the evidence was sufficient to allow the
jury to consider whether defendant perpetrated the crime using a
dangerous weapon. The trial court did not err in denying
defendant's motion to dismiss.
We also reject defendant's second argument, that the evidence
was insufficient to support his conviction for financial
transaction card theft. Defendant argues that the evidence was
insufficient to establish that he was the perpetrator of the theft;
however, as discussed above, the State presented sufficient
evidence under the doctrine of recent possession that defendant
stole Stanaland's purse, which contained her financial transaction
cards. This argument is overruled.
In his third argument, defendant maintains that his conviction
for financial transaction card theft must be vacated because that
conviction, along with his conviction for robbery with a dangerous
weapon, constitutes multiple punishment for the same act in
violation of the Fifth Amendment prohibition against double
jeopardy. Again we disagree.
This Court has recently summarized the appropriate analysis to
use in considering a defendant's claim that he has been subject to
multiple punishments for essentially the same offense. See Statev. Haynesworth, 146 N.C. App. 523, 553 S.E.2d 103 (2001). We
stated the general rule that “[w]hen the same act or transaction
constitutes a violation of two criminal statutes, the test to
determine whether there are two separate offenses [for purposes of
double jeopardy] is whether each statute requires proof of a fact
which the other does not.” Id. at 530-31, 553 S.E.2d at 109
(citing Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306
(1932)). This is the so-called Blockburger test. “'When each
statutory offense has an element different from the other, the
Blockburger test raises no presumption that the two statutes
involve the same offense.'” Id. at 531, 553 S.E.2d at 109
(citation omitted). “The fact that each crime requires proof of an
element which the other does not demonstrates the intent of the
General Assembly to allow multiple punishments to be imposed for
the separate crimes.” Id. Thus, in Haynesworth, we rejected the
defendant's argument that he could not be convicted and sentenced
for both first degree murder and assault on a law enforcement
officer stemming from the same incident because each offense
required proof of an element which the other did not. Id.
In this case, defendant's constitutional rights have not been
abridged because the offenses of financial transaction card theft
and robbery with a dangerous weapon each require proof of an
essential element which the other does not. Financial transactioncard theft requires proof that the perpetrator obtain the financial
card with the intent to then use the card. N.C. Gen. Stat. §
14-113.9(a)(1) (2001). This is not an element of robbery with a
dangerous weapon. Robbery with a dangerous weapon requires that
the perpetrator possess a dangerous weapon during the commission of
the robbery. N.C. Gen. Stat. § 14-87(a) (2001). This is not an
element of financial transaction card theft. Accordingly,
defendant's rights have not been violated and this argument is
without merit.
Fourth, defendant argues that he is entitled to a new trial
because the trial court unconstitutionally denied his request to
represent himself. On two occasions prior to trial, defendant
signed waiver of counsel forms indicting a desire to represent
himself. However, subsequent to those waivers, during a pretrial
discovery meeting on 25 October 2000, defendant refused to sign a
waiver of his right to counsel when he learned of the potential
punishment he faced. Thereafter, on 13 December 2000, the trial
court entered an order assigning a public defender to represent
defendant. On 22 December 2000, defendant filed a hand-written
motion to suppress evidence and dismiss the charges. On 3 January
2001, defendant addressed a letter to both the trial court and his
assigned counsel expressing his dissatisfaction with counsel's
handling of the matter. Defendant also addressed a letter to hisattorney directing him to follow his wishes, and stating that if he
refused, defendant wished to represent himself.
On 26 January 2001, the trial court conducted a hearing
regarding defendant's representation. The trial court asked
defendant if he wanted to represent himself when his trial
commenced. Defendant responded that what he really wanted was to
have his motion to suppress and dismiss heard immediately. When
asked a second time if he wanted to represent himself during trial,
defendant asked the trial court whether, if he represented himself,
he would be allowed to proceed that day with his motions.
Defendant expressed confusion regarding the proceedings,
particularly with respect to the date of trial, and upon the trial
court's attempt to explain, defendant opined that “[t]his is crap.”
Defendant also indicated that his counsel was there to “dismiss
himself.” The trial court retained defendant's counsel, who then
conducted defendant's trial when it commenced on 6 February 2001.
Although a defendant may request to proceed pro se, before a
trial court may allow a defendant to waive representation, it must
ensure that constitutional and statutory standards are met. State
v. Fulp, 355 N.C. 171, 174-75, 558 S.E.2d 156, 159 (2002). First,
the defendant's waiver must be expressed clearly and unequivocally.
Id. at 175, 558 S.E.2d at 159. Second, the trial court must ensure
that the defendant's waiver is knowing, voluntary, and intelligent. Id. Our Supreme Court has held that the trial court's inquiry into
these matters is sufficient where the trial court complies with the
guidelines set forth in N.C. Gen. Stat. § 15A-1242 (2001). Id.
That statute provides:
A defendant may be permitted at his
election to proceed in the trial of his case
without the assistance of counsel only after
the trial judge makes thorough inquiry and is
satisfied that the defendant:
(1) Has been clearly advised of his
right to the assistance of counsel,
including his right to the
assignment of counsel when he is so
entitled;
(2) Understands and appreciates the
consequences of this decision; and
(3) Comprehends the nature of the
charges and proceedings and the
range of permissible punishments.
N.C. Gen. Stat. § 15A-1242.
In the present case, it is evident from the transcript that
defendant's main focus was having his motion to suppress and
dismiss heard immediately, and that he failed to understand that
the issue of his representation had no bearing on whether his
motions would proceed that day. Defendant appeared willing to
waive counsel if such action would assist him in having his motions
heard immediately, even after the trial court explained that
defendant's motions could not proceed that day. Although defendantargues that he clearly requested several times to proceed on his
own, the trial court was under an obligation to ensure, before
granting such a request, that all constitutional and statutory
requirements were met. Our review of the transcript leads us to
conclude that the trial court did not err in determining that the
statutory requirements for a clear, unequivocal, knowing,
voluntary, and intelligent waiver were not sufficiently
established. This argument is overruled.
Finally, defendant maintains that he is entitled to a new
trial because the court unconstitutionally removed him from the
courtroom during closing arguments. The Confrontation Clause in
Article I, Section 23 of the North Carolina Constitution provides
a defendant with the right to be present during each stage of his
trial. State v. Miller, 146 N.C. App. 494, 499-500, 553 S.E.2d
410, 414 (2001). However, in a non-capital case, a defendant may
waive the right to be present through his behavior. Id. at 500,
553 S.E.2d at 414. N.C. Gen. Stat. § 15A-1032 (2001) provides:
(a) A trial judge, after warning a
defendant whose conduct is disrupting his
trial, may order the defendant removed from
the trial if he continues conduct which is so
disruptive that the trial cannot proceed in an
orderly manner. When practicable, the judge's
warning and order for removal must be issued
out of the presence of the jury.
(b) If the judge orders a defendant
removed from the courtroom, he must:
(1) Enter in the record the reasons for
his action; and
(2) Instruct the jurors that the removal
is not to be considered in weighing
evidence or determining the issue of
guilt.
N.C. Gen. Stat. § 15A-1032.
Here, following the close of all evidence, and outside the
presence of the jury, defendant's counsel informed the trial court
that defendant wished to give his own closing argument. The trial
court stated it would not allow this, whereupon defendant said to
the court, “[n]o, sir.” The trial court instructed defendant to
stand, and defendant, who remained seated, replied again, “[n]o,
sir.” Defendant then stated to the court, “[y]esterday . . . was
a total jerk.” The trial court instructed defendant to be quiet
and began to explain that the courtroom would be conducted as the
court determined. Defendant then interrupted the court,
complaining about a previous evidentiary ruling. The trial court
instructed that defendant be removed, and entered findings in the
record that by his conduct, defendant waived his right to be
present. When the jury returned, the trial court instructed that
it was not to consider defendant's absence in weighing the evidence
and coming to a verdict. The trial court invited defendant to
return to the courtroom following closing arguments, but defendant
refused. We hold that the trial court did not err in finding that
defendant waived his right to be present and in removing him from
the courtroom in accordance with N.C. Gen. Stat. § 15A-1032.
Defendant argues that the trial court failed to comply with the
statute in that it failed to warn defendant prior to ordering his
removal. The State maintains that the trial court warned defendant
when it instructed him to be quiet and began to explain that the
trial would be conducted as the court determined, only to be
interrupted by defendant's complaints about a prior ruling.
In any event, the right to be present at all critical stages
of a trial is subject to a harmless error analysis. Miller, 146
N.C. App. at 502, 553 S.E.2d at 415. Defendant is only entitled to
a new trial where he can establish the usefulness of his presence
during trial and that absent the trial court's error, the result of
the trial would have been different. Id. In Miller, we held that
the court's failure to comply with N.C. Gen. Stat. § 15A-1032(b)(2)
by instructing the jury that it was not to consider the defendant's
absence did not warrant a new trial. Id. In so holding, we noted
that defendant had the opportunity to keep informed of the
proceedings through his attorney; that defendant was present during
the admission of all evidence and confronted all witnesses; that
defendant failed to show the usefulness of his presence during that
portion of the trial during which he was absent; and that defendantfailed to show that absent any error, the result of his trial would
have been different. Id. at 501, 553 S.E.2d at 415.
Likewise, in this case, defendant has not established that his
removal from the courtroom, if error, entitles him to a new trial.
Defendant was present during the presentation of all evidence and
was able to confront all witnesses; defendant failed to show how
his presence in the courtroom would have been useful during closing
arguments; the trial court invited defendant to return to the
courtroom following closing arguments, but he refused; and, in
light of the evidence presented, defendant failed to show that any
error in his removal during closing arguments affected the outcome
of his trial.
Defendant received a fair trial.
No error.
Judges WYNN and THOMAS concur.
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