An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1487


Filed: 2 August 2005


         v.                        Person County
                                No. 03 CRS 54358

    Appeal by defendant from judgment entered 30 July 2004 by Judge W. Osmond Smith, III, in Person County Superior Court. Heard in the Court of Appeals 18 July 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Hilda Burnett-Baker, for the State.

    Terry W. Alford for defendant-appellant.

    MARTIN, Chief Judge.

    Defendant was charged with second degree kidnapping and common law robbery. The State's evidence tended to show that on the morning of 7 December 2003, Jeremy Royster (Royster) went to a CCB automatic teller machine (ATM) before his shift at Lowe's Foods. After Royster withdrew $20.00 from the ATM, defendant grabbed Royster in a bear hug from behind. Royster struggled and defendant told Royster to calm down and that he was not going to hurt Royster. Defendant carried Royster to a dark-colored vehicle parked sixty feet away in the Lowe's Food parking lot. Defendant gave Royster's wallet to Corey Ruffin (Ruffin) who was seated in the front passenger seat. Ruffin took the $67.00 Royster had inhis wallet, then threw Royster's wallet on the floorboard of the vehicle.
    Afterwards, defendant put his arm around Royster and told Royster he needed $100.00 to bail someone out of jail. Royster observed that defendant kept one hand in his pants pocket. Defendant escorted Royster back to the ATM. Royster withdrew the $100.00 from the ATM and gave it to defendant. Defendant counted the money and put the money in his pants pocket. Royster testified that he followed defendant's instructions to avoid being injured. Defendant walked Royster back to the dark-colored vehicle. Defendant asked Royster, “You're not going to tell anybody, are you?” and Royster replied, “No.” Defendant then told Royster that he would be back in thirty minutes to repay Royster. Defendant told Royster that his name was “Chris” and shook Royster's hand. Defendant instructed Ruffin to give Royster's wallet back to Royster and Ruffin did so. Defendant got back into the vehicle and drove off.
    April Moore walked up to Royster, told him she witnessed the incident and gave Royster the license plate number of the dark- colored vehicle. Royster went to the Lowe's Foods and informed police of the incident. Police subsequently observed the dark- colored vehicle at a gas station in Roxboro. Ruffin was paying for gas, defendant was sitting in the driver's seat and a female, Pamela Stuart, was sitting in the back seat. Once Ruffin got back into the vehicle, police attempted to stop the vehicle. Defendant sped off and police gave chase. The vehicle eventually stoppedwhen it collided with another patrol vehicle. Upon a search of defendant's front pants pocket, police found six $20 bills. Police found a knife sheath in the vehicle. At the close of the State's evidence, defendant moved to dismiss the charges against him. The trial court allowed the motion as to defendant's kidnapping charge.
    Defendant testified that it was Ruffin's idea to rob Royster, that Ruffin threatened to hurt Pamela Stuart with a knife if defendant did not do as Ruffin said, and that defendant robbed Royster to prevent Ruffin from harming Pamela Stuart.
    The trial court denied defendant's motion to dismiss at the close of all the evidence and submitted the charge of common law robbery to the jury. The trial court also instructed the jury on the defense of duress. The jury found defendant guilty of common law robbery and the trial court sentenced defendant to sixteen to twenty months imprisonment. Defendant appeals.
    Defendant contends the trial court erred in denying his motion to dismiss. Defendant argues the State failed to present sufficient evidence that he intended to permanently deprive Royster of the money. We disagree.
    The trial court must grant a defendant's motion to dismiss if the State fails to present “substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). “In determining the sufficiency of the evidence we consider it in the light most favorable to the State.” Id. To obtain a conviction for common law robbery, theState must show that the defendant unlawfully took money or personal property from another without his consent by means of violence or fear and with the intent to deprive him of its use permanently. State v. Shaw, 164 N.C. App. 723, 728, 596 S.E.2d 884, 888 (2004).
    Here, defendant grabbed Royster, carried Royster to the vehicle, and handed Royster's wallet to Ruffin who took the $67.00 from Royster's wallet. Defendant then escorted Royster back to the ATM and pocketed the $100.00 Royster withdrew. Although defendant told Royster that he would return in thirty minutes to repay him, defendant told Royster that his name was “Chris.” Furthermore, when defendant was apprehended after a high speed chase with police, $120.00 of Royster's money was found in defendant's pocket. From this evidence, the jury could permissibly find that defendant intended to permanently deprive Royster of his money.
    Defendant further argues that the trial court should have allowed his motion to dismiss because he presented sufficient evidence of the defense of duress. Defendant, however, did not argue the defense of duress when he moved to dismiss, nor did he ask the trial court to rule that he proved the defense of duress as a matter of law. Because defendant did not present the duress argument to the trial court, it is not properly before this Court. See State v. Washington, 134 N.C. App. 479, 485, 518 S.E.2d 14, 17 (1999). We note that defendant did ask the trial court to instruct the jury on the defense of duress, which instruction was submitted to, and rejected by, the jury. Accordingly, the trial court didnot err in denying the defendant's motion to dismiss the charge of common law robbery.
    Defendant also contends the trial court erred in submitting to the jury only common law robbery, and not the lesser included offense of larceny from the person. We disagree.
    It is well settled that the trial court need only submit an instruction to the jury on a lesser included offense when there is evidence from which a jury could find the defendant committed the lesser included offense. State v. Cummings, 346 N.C. 291, 325, 488 S.E.2d 550, 570 (1997), cert. denied, 522 U.S. 1092, 139 L. Ed. 2d 873 (1998). “[T]he trial judge is not required to submit lesser included offenses for a jury's consideration when the State's evidence is positive as to each and every element of the crime charged and there is no conflicting evidence related to any element of the crime charged.” State v. Washington, 142 N.C. App. 657, 660, 544 S.E.2d 249, 251, appeal dismissed, disc. review denied, 353 N.C. 532, 550 S.E.2d 165 (2001).
    “Common law robbery is an open and violent larceny from the person” of another, “of goods or money against his will by violence or by putting him in fear.” State v. Pickard, 143 N.C. App. 485, 490, 547 S.E.2d 102, 106, disc. review denied, 354 N.C. 73, 553 S.E.2d 210 (2001). Larceny from the person is a lesser included offense of common law robbery. State v. Young, 305 N.C. 391, 393, 289 S.E.2d 374, 376 (1982). The difference between the two charges is that larceny from the person does not require that the victim be put in fear. Pickard at 491, 547 S.E.2d at 106. Defendant arguesthat the victim was not put in fear since the victim was not hurt, defendant did not use a weapon and the victim shook defendant's hand afterwards.
    Here, Royster testified that he gave defendant the money “to prevent injury” and because he did not want to be harmed. Furthermore, when defendant's attorney asked Royster on cross-examination, “You were a little scared, weren't you?,” Royster answered, “Yeah.” Because there was sufficient evidence to support each element of the greater offense of common law robbery, the trial court properly denied defendant's request to instruct the jury on larceny from the person.
    No error.
    Judges HUNTER and STEELMAN concur.
    Report per Rule 30(e).

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