An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-603


Filed: 6 April 2004


     v.                            Cumberland County
                                No. 02 CRS 54468

    Appeal by defendant from judgment entered 16 January 2003 by Judge Gary L. Locklear in Superior Court, Cumberland County. Heard in the Court of Appeals 22 March 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Gaines M. Weaver, for the State.

    Reita P. Pendry for defendant appellant.

    WYNN, Judge.

    By this appeal, Defendant, Cleo McNeill, III, contends the trial court erred in denying his motion to dismiss the charge of common law robbery based on insufficiency of the evidence. After careful review, we find no error in the judgment of the trial court.
    The State presented evidence tending to show the following: On 2 April 2002, Defendant entered the Family Dollar Store located at 420 Person Street in Fayetteville, North Carolina, and proceeded to the shoe department. Rosa Durant, the store manager on duty, observed Defendant enter the store and decided to watch him as he had a jacket across his arm -- a typical method used by shopliftersto conceal merchandise. Defendant subsequently placed a pair of men's shoes and four ladies' hats under the jacket. When Defendant moved past customers at the checkout towards the store's exit, Ms. Durant intercepted Defendant and attempted to prevent him from leaving the store. Ms. Durant told Defendant that she wanted the shoes and hats that were under his jacket. Defendant responded with profanity. When Ms. Durant reiterated her request for the merchandise, Defendant refused. Ms. Durant continued to block Defendant's path and told him, “Well, you're going to give me back my merchandise.” Defendant then pulled up his shirt, exposing the butt of a handgun tucked in the waistband of his pants. Frightened, Ms. Durant retreated, shouting to the cashier to telephone emergency assistance. Defendant left the store with the merchandise, but was later apprehended by police. An officer then took Defendant back to the store, where Ms. Durant identified Defendant as the robber. The police later recovered the four stolen hats from an area in close proximity to where Defendant had been apprehended.
    After the State rested, Defendant twice moved to dismiss the charge of common law robbery based upon insufficient evidence. The trial court denied both motions. Defendant presented no evidence. After being instructed on common law robbery and misdemeanor larceny, the jury found Defendant guilty of robbery. Defendant thereafter admitted to having attained the status of habitual felon. After finding two mitigating factors, the trial court sentenced Defendant to a mitigated term of 101-131 months'imprisonment. Defendant appealed.
    By his first assignment of error on appeal, Defendant argues the trial court erred in denying his motion to dismiss based upon insufficient evidence. Specifically, Defendant contends there was insufficient evidence to show that he used force or a threat to perpetrate the instant theft. He submits that the threat here was made to effect his escape from the store after the offense of misdemeanor larceny was complete. We disagree.
    A motion to dismiss for insufficiency of the evidence is properly denied if viewing “all of the evidence, whether competent or incompetent, in the light most favorable to the State, giving it the benefit of every reasonable inference drawn from the evidence . . . . there is substantial evidence of each essential element of the crime charged.” State v. Rich, 132 N.C. App. 440, 452, 512 S.E.2d 441, 449 (1999), affirmed, 351 N.C. 386, 527 S.E.2d 299 (2000). Substantial evidence has been defined as that amount of evidence that a reasonable mind might accept as adequate to support a conclusion. State v. Williams, 151 N.C. App. 535, 539, 566 S.E.2d 155, 159, cert. denied, 356 N.C. 313, 571 S.E.2d 214 (2002). “Any contradictions or discrepancies in the evidence are for the jury to resolve, and these inconsistencies, by themselves, do not serve as grounds for dismissal.” Rich, 132 N.C. App. at 452, 512 S.E.2d at 449.
    To obtain a conviction for common law robbery, the State must show that the defendant unlawfully took money or personal propertyfrom another by means of violence or fear. State v. White, 142 N.C. App. 201, 204, 542 S.E.2d 265, 267 (2001). While our courts have consistently held that the crime of common law robbery includes an assault -- “an intentional offer or attempt by force or violence to do injury to the person of another which causes a reasonable apprehension of immediate bodily harm,” id. at 204, 542 S.E.2d at 268, this Court explained in White,
        [t]he use of force in common law robbery need not be actual, but may be constructive: . . . . “Under constructive force are included 'all demonstrations of force, menaces, and other means by which the person robbed is put in fear sufficient to suspend the free exercise of his will or prevent resistance to the taking . . . No matter how slight the cause creating the fear may be or by what other circumstances the taking may be accomplished, if the transaction is attended with such circumstances of terror, such threatening by word or gesture, as in common experience are likely to create an apprehension of danger and induce a man to part with his property for the sake of his person, the victim is put in fear.'”
Id. at 204-05, 542 S.E.2d at 268 (quoting State v. Norris, 264 N.C. 470, 473, 141 S.E.2d 869, 872 (1965) (citations omitted)). For purposes of larceny, “the element of taking is complete in the sense of being satisfied at the moment a thief first exercises dominion over the property.” State v. Sumpter, 318 N.C. 102, 111, 347 S.E.2d 396, 401 (1986). For purposes of robbery, however, the taking is not complete until after “the thief succeeds in removing the stolen property from the victim's possession.” Id. “[J]ust because a thief has physically taken an item does not mean that its rightful owner no longer has possession of it.” State v. Barnes,125 N.C. App. 75, 79, 479 S.E.2d 236, 238, affirmed per curiam, 347 N.C. 350, 492 S.E.2d 355 (1997).
    In Barnes, two defendants were observed by store personnel shoplifting non-prescription medications. The defendants subsequently exited the store, but were detained in the store parking lot, where a struggle ensued between store personnel and the defendants. It was not until the two defendants actually exited the store that a gun and knife were used to effectuate their flight from the scene. The Barnes Court rejected defendants' argument that the trial court should have allowed their motion to dismiss because the use of a dangerous weapon was not contemporaneous with the taking of the property. The Court concluded that the defendants' “attempt to take the property from the store by force was inseparable from the rest of the transaction.” Id. at 79, 479 S.E.2d at 239. The Court reasoned that “the taking was not complete when defendant Hooks brandished the handgun, because defendant Hooks had not successfully wrested possession of the merchandise from the store employees.” Id. at 79, 479 S.E.2d at 238. As defendant Hooks' “purpose in brandishing the weapon was to thwart the efforts of store personnel, as they attempted to retain lawful possession of the store merchandise[,]” the Court determined, “[d]efendant Hooks' display of a handgun was . . . necessary to the completion of the taking[.]” Id. at 79, 479 S.E.2d at 238-39.
    The facts in the instant case prompt a similar result. Here, though the crime of misdemeanor larceny may have been complete atthe time that Defendant took the shoes and hats and hid them under his coat, the common law robbery was not completed until after Defendant extricated himself from the confrontation with the store manager, Rosa Durant. The threat of force was then contemporaneous with the removal of the items from the store. Accordingly, we conclude that the trial court properly denied Defendant's motion to dismiss.
    In light of our conclusion in this regard, we summarily reject Defendant's argument that the trial court erred in denying his motion to set aside the verdict. See State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (providing that the standard of review of a motion to dismiss made after the return of a verdict of guilty and before the entry of judgment is the same as the standard used in reviewing a motion to dismiss made at the close of the State's evidence or at the close of all the evidence). Both of Defendant's assignments of error are therefore overruled.
    Having overruled both of Defendant's assignments of error, we hold that Defendant received a fair trial, free from prejudicial error.
    No error.
    Judges HUNTER and McCULLOUGH concur.
    Report per Rule 30(e).

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