STATE OF NORTH CAROLINA
v. Person County
No. 03 CRS 54358
RAHEEM LYNELL GALLOWAY
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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