An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 4 April 2006
STATE OF NORTH CAROLINA
No. 02 CRS 55109-111
LARRY DARNELL ANDERSON 02 CRS 55235
03 CRS 2101
Appeal by defendant from judgment entered 4 May 2004 by Judge
W. Erwin Spainhour in Union County Superior Court. Heard in the
Court of Appeals 14 November 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Elizabeth J. Weese, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Julie Ramseur Lewis, for defendant-appellant.
Larry Darnell Anderson (defendant) appeals from judgments
entered on jury verdicts finding him guilty of second-degree
kidnapping, second-degree rape, and two counts of common law
robbery. We find no prejudicial error at trial and uphold the
judgments against defendant.
In 2001, defendant had been a guest in the home of Torrey and
Janice Phillips. Mr. and Mrs. Phillips had taken defendant in off
the street and tried to help him get back on his feet. Defendant
was asked to move out after he threatened Mrs. Phillips with a
hammer. The Phillips' pastor took defendant's belongings so that
defendant would not need to return to the home. However, defendantdid return for his belongings, at which time he barged into the
home with a box-cutter knife and threatened to kill both Torrey and
On 24 September 2002, defendant entered the Phillips' home at
approximately 7:30 a.m. while Mrs. Phillips slept. She awoke to
find defendant standing by her bed showing her a knife and
threatening to kill her if she did not do what he said. Defendant
ordered Mrs. Phillips to lift her gown and when she hesitated, he
held up the knife until she complied. He kissed her vagina and
ordered her to kiss his penis. Defendant then took a piggy bank
and about $30.00 in church money from the Phillips' home and had
Mrs. Phillips get in her car with him.
Defendant drove to a BB&T bank where he demanded that Mrs.
Phillips remove $40.00 from her account via an automatic teller
machine (ATM). He then drove back roads to a mobile home.
Defendant took the keys to the car with him as he went in the
trailer and told Mrs. Phillips not to leave. When he returned to
the car, he again drove back roads to a gas station where the two
purchased gas and defendant made Mrs. Phillips get additional money
from her bank account through an ATM that was near the station.
While driving the car from the trailer to the gas station defendant
was fondling Mrs. Phillips and smoking a pipe that she testified
Defendant continued to fondle Mrs. Phillips as he returned to
the trailer at least one more time. At some point, he stopped the
car and had Mrs. Phillips get out, face the car, bend over, andpull her pants down. When she complied, he raped her and committed
various sexual acts. After these actions, defendant cried,
apologized, and threatened suicide. Mrs. Phillips prayed with him.
After driving some more, defendant stopped the car and fled. Mrs.
Phillips reported the robberies the next day and the rape on 26
Among other charges, the jury was presented with one count of
first-degree kidnapping and three counts of robbery with a
dangerous weapon. Defendant was convicted of first-degree
kidnapping, second-degree rape, and three counts of common law
robbery. The jury also determined that defendant was an habitual
felon. The trial court reduced the kidnapping charge to a
second-degree offense and arrested the sentence on one robbery
charge. Defendant was then sentenced in the presumptive range to
four consecutive terms of 151 to 191 months imprisonment.
Defendant first argues that his kidnapping indictment was
improperly amended. It is true that a bill of indictment may not
be amended, see N.C. Gen. Stat. § 15A-923(e) (2005), but
amendment has been specifically defined to only include those
alterations that would substantially alter the charge set forth in
the indictment. State v. Carrington, 35 N.C. App. 53, 58, 240
S.E.2d 475, 478, disc. review denied, 294 N.C. 737, 244 S.E.2d 155
(1978). The indictment, prior to its alteration, essentially
tracked the language of the kidnapping statute:
The jurors for the State upon their oath
present that on or about the date of offenseshown and in the county named above the
defendant named above unlawfully, willfully
and feloniously did kidnap Janice Denise
Phillips, a person who had attained the age of
16 years, by unlawfully confining, restraining
and moveing [sic] the victim from one place to
another without the consent of that victim and
for the purpose of facilitating the commission
of a felony, Armed Robbery. Janice Denise
Phillips was sexually assaulted.
The alleged improper amendment by the State was changing the word
moveing to removing. Defendant argues that the terms move
and remove are substantially different, and the trial court erred
in allowing the change. We disagree.
First, the plain meaning of move is to change in position
from one point to another, The American Heritage College
Dictionary 893 (3d ed. 1997), while the primary definition of
remove is to move from a place or position occupied, id. at
1155. This technical change does not substantially alter the
charge set forth. See, e.g., State v. Brinson, 337 N.C. 764, 766-
69, 448 S.E.2d 822, 824 (1994) (an indictment for assault with a
deadly weapon was not amended where the object serving as the
deadly weapon was altered the day of jury selection). In fact, if
any alteration exists, it operates in defendant's favor: the term
move is arguably broader than the term remove, such that the
alteration narrows the scope of the charge from its original form.
Second, the guiding purpose of an indictment is to identify
clearly the crime being charged, thereby putting the accused on
reasonable notice to defend against it and prepare for trial, and
to protect the accused from being jeopardized by the State more
than once for the same crime. State v. Sturdivant, 304 N.C. 293,311, 283 S.E.2d 719, 731 (1981). The State's alteration of the
word moveing in this case did nothing to upset defendant's
understanding or preparation for trial, and we find defendant's
arguments to the contrary to be meritless. See State v. Campbell,
133 N.C. App. 531, 535-36, 515 S.E.2d 732, 735 (A change in an
indictment does not constitute an amendment where the variance was
inadvertent and defendant was neither misled nor surprised as to
the nature of the charges.), disc. review denied, 351 N.C. 111,
540 S.E.2d 370 (1999).
Next, defendant argues that the trial court erred by admitting
evidence of prior bad acts, thus prejudicing his case. This
argument is also without merit. Rule 404(b) clearly states that
evidence of prior bad acts is not admissible in order to show that
a person acted in conformity with his character. Yet, such
evidence may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake, entrapment or accident. N.C.
Gen. Stat. § 8C-1, Rule 404(b) (2005).
Rule 404(b) is thus a general rule of inclusion of relevant
evidence of [prior bad acts], subject to but one exception
requiring its exclusion if its only probative value is to show that
the defendant has the propensity or disposition to commit an
offense of the nature of the crime charged. State v. Coffey, 326
N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990) (emphasis in original).
In State v. Smith, 152 N.C. App. 29, 34-35, 566 S.E.2d 793, 798(2002) (relying on State v. Agee, 326 N.C. 542, 548, 391 S.E.2d
171, 174 (1990)), this Court applied Rule 404(b) and determined
that evidence establishing a chain of circumstances leading up to
the crime charged may be admissible if linked in time and
circumstances  or if it forms an integral and natural part of an
account of the crime, or is necessary to complete the story of the
crime for the jury. Further, in State v. Young, 317 N.C. 396,
413, 346 S.E.2d 626, 636 (1986), our Supreme Court determined that
where the offense in question requires proof of lack of consent or
that the offense was committed against the will of the victim,
evidence of a victim's awareness of prior bad acts by the defendant
may be admitted in order to show that the victim's will had been
overcome by her fears for her safety.
In this case, evidence of defendant's previous threats against
Mr. and Mrs. Phillips was necessary to explain why Mrs. Phillips
feared for her safety. The previous threats of violence support
how defendant was able to keep Mrs. Phillips from fleeing even
though at times she was left unattended. Also, the evidence was
neither so remote in time nor so dissimilar in form as to render it
Defendant last argues that the trial court erred in failing to
grant his motion to dismiss two of the robbery charges under the
theory that all three charges arose out of one continuous
transaction, thereby giving rise to just one charge. The trial court's analysis of a motion to dismiss is well
settled: it must review the evidence presented in the light most
favorable to the State_giving it the benefit of every reasonable
inference_to determine if there is substantial evidence supporting
each essential element of the offense and the fact that defendant
was the perpetrator. State v. Mitchell
, 342 N.C. 797, 811, 467
S.E.2d 416, 424 (1996). Here, defendant was charged with three
counts of robbery with a dangerous weapon. Thus, in order to
withstand a motion to dismiss these charges, the State was required
to submit substantial evidence that on three separate occasions: 1)
defendant unlawfully took personal property either directly from
Mrs. Phillips or in her presence, 2) by use or threatened use of a
dangerous weapon, 3) whereby her life was endangered or threatened.
See State v. Haselden
, 357 N.C. 1, 17, 577 S.E.2d 594, 605 (2003);
N.C. Gen. Stat. § 14-87(a)(2005).
We find State v. Jordan
, 128 N.C. App. 469, 495 S.E.2d 732
(1998), particularly informative as to the issue of multiple
takings from a single victim. In Jordan
, the defendant stole from
the victim while in her house. He then left her house and stole
her car. Because of the lapse of time between the two takings, the
Court concluded that two separate takings had occurred, providing
proper grounds for the separate charges of robbery with a dangerous
weapon and larceny. Id.
at 474-75, 495 S.E.2d at 736; see also
State v. Robinson
, 342 N.C. 74, 463 S.E.2d 218 (1995) (two separate
charges were supported when defendant took victim's wallet, then
after walking around a park came back and took victim's car); Statev. Barton
, 335 N.C. 741, 441 S.E.2d 306 (1994) (defendant taking
victim's wallet then later taking a gun from the victim's car
supported robbery and larceny).
Here, defendant stole money from Mrs. Phillips in her house.
He then left her house and took money from her at a BB&T ATM.
After that he took from her again at a Wachovia ATM, a separate and
distinct locale. In between these takings, and over the course of
several hours, he drove around on back roads, stopped to buy gas,
and stopped at a mobile home several times. Applying Jordan
these facts, we find sufficient evidence of three separate and
distinct takings. Since there was evidence of three distinct
robberies, the trial court did not err in failing to dismiss two of
the three counts of robbery with a dangerous weapon.
We find defendant's one continuous transaction argument
unpersuasive. It is true that the defendant's threatened use or
use of a dangerous weapon must precede or be concomitant with the
taking, or be so joined by time and circumstances with the taking
as to be part of one continuous transaction. State v. Olson
N.C. 557, 566, 411 S.E.2d 592, 597 (1992). However, the cases
defendant cites to support robbery with a dangerous weapon as a
continuing offense merely show that for a defendant to be guilty of
robbery with a dangerous weapon, it is not necessary that each
element occur simultaneously or in rapid succession so long as each
occurs in one continuous transaction. See State v. Sumpter
N.C. 102, 347 S.E.2d 396 (1986) (the elements of violence and
taking were so joined in time and circumstances as to beinseparable); State v. Bellamy
, 159 N.C. App. 143, 582 S.E.2d 663
(2003) (the exact time relationship between the violence and the
taking is unimportant so long as they are so joined by time and
circumstances as to be inseparable). Neither of these cases
support defendant's application. Instead, Jordan
better rule that under the circumstances where there exists
substantial time between takings, or the armed takings are from
different locales, a defendant can be charged with multiple counts
of robbery with a dangerous weapon, even if all acts were committed
against the same victim.
Accordingly, we find that defendant received a trial free from
error and uphold the judgment against him.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).
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