NO. COA06-51
Appeal by defendant from a judgment entered 10 August 2005 by
Judge James M. Webb in Moore County Superior Court. Heard in the
Court of Appeals 16 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Allison S. Corum, for the State.
Russell J. Hollers, III, for defendant-appellant.
BRYANT, Judge.
Robert Lee Holmes (defendant), charged with common law robbery
and, in a separate bill of indictment, having attained habitual
felon status, appeals from a judgment entered 10 August 2005.
The State's evidence tended to show that on the afternoon of
10 July 2002, Rachel Robertson (Robertson) was working as a cashier
at a Piggly-Wiggly located in Vass, North Carolina. A male
customer, later identified as Mr. Hill, approached Robertson's
register to purchase a bottle of rubbing alcohol with a handful of
change. Robertson completed the sales transaction and closed her
cash register drawer. Mr. Hill then told Robertson that he would
like to exchange his remaining change for cash. Robertson
consented and opened the cash register. As Mr. Hill handed overthe change, “he dropped all of it on the floor.” Mr. Hill told
Robertson that he had arthritis and asked for her assistance in
picking up the change. Leaving the cash register open, Robertson
bent over to help Mr. Hill. She then heard a loud “click”, which
sounded as if one of the bill clips in her cash register had
snapped back down after being lifted. Robertson quickly turned
around and saw defendant “standing pretty close to the register.”
Robertson had not seen defendant prior to the clicking noise.
Robertson stood up, closed the register drawer, and asked defendant
if he had taken any money. Before defendant could answer, Mr. Hill
said, “No. I saw him. He didn't take any money out of the drawer.”
Although Robertson believed Mr. Hill, she had a “bad
feeling[.]” Robertson noticed that defendant had a
Piggly-Wiggly sales paper in his hand. Robertson thought defendant
took the sales paper from the stack of sales papers behind her
register to hide money defendant may have taken from her cash
register. Robertson followed defendant as he left the store and
again asked him if he had taken any cash. After defendant denied
taking any money, Robertson “placed [her] hands on the edge of the
paper and tried to tug on it, but he wouldn't let go of it.”
Robertson saw defendant drive off in a vehicle occupied by another
man. When Robertson turned around she saw that Mr. Hill had left
the store without picking up his change. Robertson wrote down the
vehicle's license plate number and reported the incident to her
supervisor, who called the police.
Police took a statement from Robertson upon arriving at thestore. In the meantime, Officer Marvin Scott McKinnis stopped a
vehicle matching Robertson's description and arrested defendant,
who was the driver, and Mr. Hill, the passenger. At the arrest
scene, Robertson identified defendant and Mr. Hill. Upon a search
of defendant, Officer McKinnis found $736.47 on defendant's person.
The Piggly-Wiggly later determined that $700.00 was missing from
Robertson's cash register drawer.
A jury found defendant guilty of larceny from the person.
Defendant subsequently admitted his habitual felon status. The
trial court sentenced defendant to 90 to 117 months imprisonment.
Defendant appeals.
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Defendant raises two issues on appeal: (I) whether the trial
court committed error by denying his motion to dismiss; and (II)
whether the trial court committed plain error by not instructing
the jury on the lesser included offense of misdemeanor larceny.
I
Defendant first contends the trial court erred in denying his
motion to dismiss. A motion to dismiss for insufficiency of the
evidence should be denied if there is substantial evidence: (1) of
each essential element of the offense charged and (2) of
defendant's being the perpetrator of the offense.
State v. Scott,
356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). Substantial
evidence is that amount of relevant evidence necessary to persuade
a rational juror to accept a conclusion.
Id. at 597, 573 S.E.2d
at 869.
In ruling on a motion to dismiss, the trial court mustconsider all of the evidence in the light most favorable to the
State, and the State is entitled to all reasonable inferences which
may be drawn from the evidence.
State v. Davis, 130 N.C. App. 675,
679, 505 S.E.2d 138, 141 (1998). “Any contradictions or
discrepancies arising from the evidence are properly left for the
jury to resolve and do not warrant dismissal.”
State v. King, 343
N.C. 29, 36, 468 S.E.2d 232, 237 (1996).
“Common law robbery is the felonious, non-consensual taking of
money or personal property from the person or presence of another
by means of violence or fear.”
State v. Smith, 305 N.C. 691, 700,
292 S.E.2d 264, 270 (1982). “At common law, larceny from the
person differs from robbery in that larceny from the person lacks
the requirement that the victim be put in fear.”
State v. Pickard,
143 N.C. App. 485, 491 547 S.E.2d 102, 106 (2001).
Defendant
argues that the State failed to present substantial evidence of a
taking “from the person.” To support his contention, defendant
relies on
State v. Barnes, 345 N.C. 146, 478 S.E.2d 188 (1996) and
State v. Lee, 88 N.C. App. 478, 363 S.E.2d 656 (1988).
In
Barnes,
our Supreme Court held that the evidence did not support a
conviction of larceny from the person where the defendant removed
a bank bag containing money from below the cash register in a kiosk
at a shopping mall while the victim was twenty-five to thirty feet
from the kiosk, in another store.
Barnes
at 151, 478 S.E.2d at
191. In
Lee, this Court held that the evidence did not support a
conviction for larceny from the person where the defendant secretly
removed the victim's purse from her unattended grocery cart whileshe was four to five steps away, looking for an item in the grocery
store.
Lee at 479, 363 S.E.2d at 656. Like the grocery store
customer and the kiosk merchant,
defendant asserts that “the cash
in the register's drawer was not in Ms. Robertson's immediate
presence, nor under her protection or control when Mr. Holmes
secretly took it” and, therefore, his conviction larceny from the
person is not supported by the evidence.
The facts of this case are distinguishable from
Barnes and
Lee. They are more closely aligned with those of
State v. Buckom,
328 N.C. 313, 401 S.E.2d 362 (1991). In
Buckom, the clerk was
making change for the defendant when he reached into the drawer and
grabbed the money.
Id. “Such evidence was sufficient to support
the defendant's conviction for larceny from the person.”
Id. at
318, 410 S.E.2d at 365.
Here, defendant took money from the cash register while
Robertson, at her cash register, bent down to help a customer who
was later identified as defendant's accomplice, pick up change he
had dropped on the floor. Robertson was physically at her cash
register when defendant took the money
and, unlike the victims in
Barnes and
Lee, had not left her cash register unattended.
Defendant's removal of the money while Robertson was at her cash
register constituted an invasion of Robertson's person or immediate
presence. We conclude that the evidence was sufficient to support
a finding that the money was in the immediate presence of and under
the protection or control of Robertson at the time of the taking,
and the money was taken “from the person” of Robertson.Accordingly, the trial court properly denied defendant's motion to
dismiss.
Because we conclude that there was sufficient evidence to
satisfy the “from the person” element of the larceny from the
person charge, we reject defendant's contention that he was
entitled to an instruction on the lesser included offense of
misdemeanor larceny. This assignment of error is overruled.
II
Defendant admits he failed to ask the trial court for the
instruction and, therefore, asks this Court for plain error review.
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)).
A
defendant “is entitled to an instruction on a lesser included
offense if the evidence would permit a jury rationally to find him
guilty of the lesser offense and acquit him of the greater.” State
v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924 (2000) (citations
and internal quotation marks omitted). However, “a lesser offense
should not be submitted to the jury if the evidence is sufficient
to support a finding of all the elements of the greater offense,
and there is no evidence to support a finding of the lesser
offense.” State v. Nelson, 341 N.C. 695, 697, 462 S.E.2d 225, 226
(1995). “The essential elements of larceny are: (1) the taking of
the property of another; (2) carrying it away; (3) without the
owner's consent; and (4) with the intent to permanently deprive theowner of the property.” State v. Barbour, 153 N.C. App. 500, 502,
570 S.E.2d 126, 127 (2002) (citation omitted).
Here, the State presented substantial evidence that
the money
was taken “from the person” of Robertson and there is no evidence
to support a finding of the lesser included offense of misdemeanor
larceny. Accordingly, the trial court did not commit plain error
in failing to instruct on the lesser included offense.
This
assignment of error is overruled.
No error.
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
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