An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-734

NORTH CAROLINA COURT OF APPEALS

Filed: 18 May 2004

STATE OF NORTH CAROLINA

         v.                        Wayne County
                                No. 01 CRS 58475
SAMUEL DARION APPLEWHITE

    Appeal by defendant from judgment entered 23 July 2002 by Judge Jerry Braswell in Wayne County Superior Court. Heard in the Court of Appeals 3 May 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Mabel Y. Bullock, for the State.

    Ligon and Hinton, by Lemuel W. Hinton, for defendant- appellant.

    CALABRIA, Judge.

    Defendant was found guilty of common law robbery and of misdemeanor assault inflicting serious injury. The convictions were consolidated and defendant was sentenced within the aggravated range to an active term of 16 to 29 months. Defendant asserts the trial court erred by failing to dismiss the charge of assault inflicting serious injury, refusing to submit the lesser offense of misdemeanor larceny, and failing to find certain mitigating factors. We find no error.
    At trial, the State presented evidence tending to show that three young males entered the King Cafe in Goldsboro on 8 September 2001. Two of the men approached the counter as if they were going to order something. The proprietor of the store, Oliver King, whowas approximately 80 years old, walked to the counter to assist them. The third man, whom Mr. King believed was defendant, came from behind and struck Mr. King several times on the head. The assailant knocked Mr. King to the floor and removed King's pocketbook from his pocket. The pocketbook contained approximately $1,900 which Mr. King had withdrawn from the bank to pay a hospital bill and his automobile insurance. Mr. King also discovered that a revolver behind the counter was missing, as well as some packs of cigarettes. Some youths who entered the store afterward called the police and the rescue squad for Mr. King. He was taken to the hospital, treated for his injuries, and released.
    Cory McLaurin testified on behalf of the State that he, defendant and Jamie McKinney devised a plan to rob Mr. King on 8 September 2001. He and defendant walked to the front of the counter while McKinney struck and beat Mr. King. Defendant jumped over the counter and grabbed packs of cigarettes. McLaurin walked behind the counter, saw a pistol, and put it in his pocket. McLaurin also picked up Mr. King's wallet after it fell out of his pocket. McLaurin removed the money, approximately $900, from the wallet and split it evenly between the three of them. They rode a bus to the shopping mall and purchased clothing and jewelry with the money.
    Teresa Ciero, a law enforcement investigator with the City of Goldsboro, testified regarding a statement defendant made to her in which he admitted accompanying McLaurin and McKinney to the store. He stated that Cory McLaurin hit Mr. King and took Mr. King's moneyfrom his wallet. Defendant denied knowledge of any plan to rob Mr. King, any participation in the crimes, or receiving any of the spoils of the robbery.
    Defendant first contends that the court erred by failing to dismiss the charge of assault inflicting serious injury. He argues the State was required to prove that defendant personally committed every element of the offense because the court failed to instruct the jury regarding the principle of acting in concert with respect to that charge. See State v. Bethea, 156 N.C. App. 167, 171, 575 S.E.2d 831, 834 (2003). We disagree.
    Upon a motion to dismiss, the evidence of the State is taken as true and is considered in the light most favorable to the State, including contradictions and inconsistencies. State v. Peele, 281 N.C. 253, 259, 188 S.E.2d 326, 331 (1972). Mr. King identified defendant as the person who assaulted him. This testimony is sufficient to withstand the motion to dismiss and to take the case to the jury. Moreover, the record shows that the court did give an instruction on acting in concert with regard to the charge of common law robbery. In this instruction, given immediately after the court's instructions defining the elements of assault inflicting serious injury, the court instructed the jury that each person who joined in a plan to commit the offense of common law robbery “is not only guilty of that crime if the other commits the crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose to commit common law robbery.” One of defendant's two companions, if not defendant,assaulted Mr. King in pursuance of the common plan to rob Mr. King. Considered as a whole and in context, this instruction and evidence are sufficient to permit a jury to find defendant guilty of assault inflicting serious injury based upon either the principle of concerted action or the premise that defendant was the assailant.
    Defendant next contends the court erred by refusing to submit the lesser offense of misdemeanor larceny. However, when the evidence is positive and unequivocal as to every element of the greater offense, and there is no evidence to support the defendant's guilt of the lesser offense, the court's failure to submit a lesser offense is not error. State v. Peacock, 313 N.C. 554, 562, 330 S.E.2d 190, 195 (1985). “The sole factor determining the judge's obligation to give such an instruction is the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense.” State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981). The distinction between common law robbery and the lesser offense of misdemeanor larceny is that the former requires that the victim be placed in fear while the latter does not. State v. White, 142 N.C. App. 201, 204, 542 S.E.2d 265, 267 (2001). We have previously held that where, as here, “[a]ll of the evidence tends to show that the taking of the money was 'occasioned by the violent acts of the defendant,'” the court commits no error for failing to instruct the jury on the lesser included offense of misdemeanor larceny because the theft took place through violence which naturally produces fear. State v. McCullers, 77 N.C. App. 433,435, 335 S.E.2d 348, 349 (1985). We similarly find that where, the evidence is uncontradicted and unequivocal that Mr. King was assaulted and that his money was taken from him during the course of this assault, the trial court did not err in failing to submit misdemeanor larceny to the jury. Absent from the record is any evidence to support a conviction of misdemeanor larceny. This assignment of error is overruled.
    Defendant finally contends that the court erred by failing to find as mitigating factors that defendant was a passive participant or played a minor role in the commission of the offense and that his age or immaturity significantly reduced his culpability. The defendant has the burden of proving factors in mitigation by the preponderance of the evidence. State v. Canty, 321 N.C. 520, 523, 364 S.E.2d 410, 413 (1988). The defendant's evidence must establish the factor so clearly that no reasonable inferences to the contrary may be drawn. State v. Jones, 309 N.C. 214, 220, 306 S.E.2d 451, 455 (1983). Only when the evidence in support of a factor in mitigation is uncontradicted, substantial and manifestly credible does the court err in failing to find the mitigating factor. State v. Blackwelder, 309 N.C. 410, 419, 306 S.E.2d 783, 789 (1983). The evidence in this case does not reach this level. The evidence is conflicting and does not prove that defendant was a passive participant or minor role player. For example, Mr. King testified that defendant actively assaulted him, and Cory McLaurin testified that defendant actively pilfered the packs of cigarettes. There is absolutely no evidence in the record to suggest thatdefendant's youth or immaturity diminished his culpability for the offenses. This assignment of error is overruled.
    No error.
    Judges TIMMONS-GOODSON and ELMORE concur.
    Report per Rule 30(e).

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