STATE OF NORTH CAROLINA
v. Beaufort County
No. 03 CRS 51841
TYRON HASHIM SAVAGE,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney
General Jason T. Campbell, for the State.
Adrian M. Lapas, for the defendant-appellant.
WYNN, Judge.
“A trial court must give instructions on all lesser-included
offenses that are supported by the evidence[.]” State v. Lawrence,
352 N.C. 1, 19, 530 S.E.2d 807, 819 (2000), cert. denied, 531 U.S.
1083, 148 L. Ed. 2d 684 (2001)). In this case, Defendant, charged
with robbery with a firearm, contends that the trial court erred by
failing to instruct on the lesser-included offense of larceny from
the person. Because the evidence was uncontradicted that force was
used in taking the money and the trial court submitted the lesser
offense of common-law robbery, we hold that the trial court did not
err in not submitting the charge of larceny from the person to the
jury. Defendant Tyron Hashim Savage was charged with first-degree
burglary and robbery with a firearm. The State's evidence tended
to show that on the evening of 15 May 2003, Danny Adams heard a
knock at his front door as he was lying on his couch. When Adams
opened the door, a man wearing a hooded sweatshirt “jumped on”
Adams. Defendant then came in the door with a gun in his hand and
told Adams to “[g]ive up the money.” Defendant stood by the front
door while Adams and the hooded man fought. Defendant subsequently
held Adams in a choke hold as the hooded man punched Adams.
Defendant also struck Adams with the gun. Unable to defend himself
any longer, Adams told the men he had $100 in his bedroom. After
the hooded man retrieved the $100 from the bedroom, Defendant
struck Adams's head with his gun and the two men fled. Adams, who
suffered bruises, scrapes and a cut over his eye, was later
transported to the hospital.
Defendant testified that he and Linwood Brown (Brown) went to
Adams's residence to “get some weed.” Defendant testified that
after Brown bought a small bag of marijuana, Brown snatched a
bigger bag of marijuana from Adams's hand. Defendant testified
that he stood in the door way as the two men exchanged blows.
Defendant testified that he did not assist either Adams or Brown
during the fight, that he did not possess a gun and that he did not
take Adams's money.
A jury found Defendant guilty of first-degree burglary and of
the lesser-included offense of common-law robbery. The trial court
sentenced Defendant to ninety to 117 months imprisonment for theburglary conviction and a consecutive term of thirteen to sixteen
months imprisonment for the robbery conviction. Defendant appeals.
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Defendant first contends the trial court erred by not
instructing the jury on the lesser offense of larceny from the
person.
Defendant admits that he neither requested the jury be
instructed on the lesser-included offense nor objected to the jury
charge and, therefore, asks this Court to review for plain error.
Plain error arises when the error is “'so basic, so prejudicial, so
lacking in its elements that justice cannot have been done[.]'”
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.
1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d. 513 (1982)).
“It is well settled that '[a] trial court must give
instructions on all lesser-included offenses that are supported by
the evidence[.]'” State v. Ray, 149 N.C. App. 137, 145-46, 560
S.E.2d 211, 217 (quoting Lawrence, 352 N.C. at 19, 530 S.E.2d at
819). “The trial court may decline to submit the lesser offense to
the jury if 'the State's evidence is positive as to each element of
the crime charged' and there is no 'conflicting evidence relating
to any of [the] elements.'” Id. at 146, 560 S.E.2d at 217 (quoting
State v. Leroux, 326 N.C. 368, 378, 390 S.E.2d 314, 322, cert.
denied, 498 U.S. 871, 112 L. Ed. 2d 155 (1990)). To convict a
defendant of robbery with a firearm, the State must prove the (1)
felonious, non-consensual taking of (2) money or personal property
(3) from the person or presence of another (4) by means of force orintimidation occasioned by the use or threatened use of firearms.
N.C. Gen. Stat. § 14-87 (2004); State v. Waddell, 279 N.C. 442,
444, 183 S.E.2d 644, 646 (1971). To convict a defendant of larceny
from the person, it must be shown that he (1) took the property of
another, (2) from their person, (3) carried it away, (4) without
the owner's consent, and (5) with the intent to deprive the owner
of the property permanently. N.C. Gen. Stat. § 14-72(b)(1) (2004);
State v. Reeves, 62 N.C. App. 219, 223, 302 S.E.2d 658, 660 (1983).
Larceny from the person is a lesser offense of robbery with a
firearm and contains all of the above elements except for the
requirement of use or threatened use of a firearm. State v. White,
322 N.C. 506, 518, 369 S.E.2d 813, 819 (1988).
Here, there is evidence showing that the taking of Adams's
$100 was perpetrated by threatened use of a firearm. Defendant hit
Adams with a gun and held Adams while Brown punched Adams. Adams
testified that Defendant was holding a gun in his hand and pointed
it at him. But Defendant testified that he did not have a gun.
However, Defendant testified that he witnessed Brown punching
Adams. Therefore, the evidence is uncontradicted that the taking
of Adams's money was forcible.
The lesser-included offense of common law robbery was
submitted to the jury, which the jury found Defendant guilty of.
To convict a defendant of common-law robbery, the State must prove
the (1) felonious, non-consensual taking of (2) money or personal
property (3) from the person or presence of another (4) by means of
force or placing in fear. State v. Hedgecoe, 106 N.C. App. 157,161, 415 S.E.2d 777, 780 (1992). Larceny from the person is also
a lesser-included offense of common law robbery. State v. Pickard,
143 N.C. App. 485, 491, 547 S.E.2d 102, 106, disc. review denied,
354 N.C. 73, 553 S.E.2d 210 (2001). In the absence of any evidence
to show that the taking was not forcible, we hold the trial court
properly refused to submit the offense of larceny from the person
where the alternative lesser-included offense common-law robbery
was submitted.
Defendant also raises an ineffective assistance of counsel
claim with respect to his counsel's failure to request an
instruction on larceny from the person as a lesser-included offense
of robbery with a firearm. Because we have found no error
pertaining to the trial court's jury instructions, this assignment
of error is overruled.
Defendant finally contends the trial court erred in sentencing
him as a prior record level III offender. Defendant argues the
State did not prove he was a prior record level III offender
pursuant to the North Carolina sentencing statutes. We disagree.
Section 15A-1340.14 of the North Carolina General Statutes
requires that each of a felony offender's prior convictions be
proven to determine the offender's prior record level. N.C. Gen.
Stat. § 15A-1340.14 (2004). Section 15A-1340.14 also provides that
the State bears this burden of proving any prior convictions by a
preponderance of the evidence. Section 15A-1340.14(f) lists
several methods the State may use to prove prior convictions:
(1) Stipulation of the parties.
(2) An original or copy of the court record of
the prior conviction.
(3) A copy of records maintained by the
Division of Criminal Information, the Division
of Motor Vehicles, or of the Administrative
Office of the Courts.
(4) Any other method found by the court to be
reliable.
N.C. Gen. Stat. § 15A-1340.14(f). Clear and unequivocal statements
expressing agreement with the items listed on a sentencing
worksheet have been held to be stipulations. See State v. Morgan,
164 N.C. App. 298, 306-07, 595 S.E.2d 804, 810-11 (2004) (holding
defendant had stipulated to record level where defense counsel
“conceded the existence of the convictions by arguing that
Defendant should be sentenced at a level III on the basis of her
prior record” and “made no objection to the prior record level
worksheet except to the number of points [that a] third degree
homicide conviction from New Jersey should receive”).
Here, the State presented evidence in the form of a
stipulation by the parties. The record discloses that on 17 March
2004, the prosecutor and defense attorney signed a written
stipulation, in which the parties stipulated to the list of
Defendant's prior convictions and agreed upon Defendant's prior
record level set out in the worksheet provided by the State. The
trial court relied upon this written stipulation to sentence
Defendant for the burglary and robbery convictions and to sentence
Defendant for a conviction to which Defendant pled guilty that same
day. See
Morgan, 164 N.C. App. at 306-07, 595 S.E.2d at 810-11.
We conclude, therefore, that this evidence indicates that the State
carried its burden of proving each prior conviction by a
preponderance of the evidence under section 15A-1340.14 of the
North Carolina General Statutes. Accordingly, this assignment of
error is without merit.
No error.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).
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