STATE OF NORTH CAROLINA
v. Cumberland County
No. 02 CRS 54468
CLEO MCNEILL, III
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.
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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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