Appeal by defendant from judgments entered 11 May 2006 by
Judge James M. Webb in Guilford County Superior Court. Heard in
the Court of Appeals 28 August 2007.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Dorothy Powers, for the State.
Crumpler, Freedman, Parker, & Witt, by Vincent F. Rabil, for
defendant-appellant.
HUNTER, Judge.
Lamont Darrell Carter (“defendant”) appeals from the trial
court's entry of judgments based on jury verdicts of guilty of
common law robbery and conspiracy to commit common law robbery.
After careful review, we vacate the conviction for common law
robbery and remand for resentencing on a charge of larceny from the
person.
On 20 May 2004, Sean Rowlett (“Rowlett”) and Marvin Cooks
(“Cooks”), as Express Teller Services employees, went to Alamance
Church Road in Greensboro to replenish an ATM. The ATM was located
in an atrium just inside a Bi-Lo grocery store. Upon their arrival
at the store, Rowlett exited the truck carrying a canvas bag inside
which was a plastic bag containing $103,000.00 in cash, which he
then placed in a grocery cart. He entered the store, approached
the ATM, and began the replenishment process, placing the grocery
cart with the cash to his left.
Rowlett was “about to insert [his] settlement card” into the
ATM to balance the machine when he felt a spray hit the back of his
head. Rowlett testified that he “thought it was like a little kid
with a water gun[.]” When he touched the back of his head and
looked at his hand, however, he discovered that the spray was
orange, and the back of his head began to “burn”; he believed itmight have been pepper spray or mace. Rowlett then turned to his
left, toward where the shopping cart had been, and discovered that
the bag containing the money was gone. He looked out the door and
saw someone running away with the sack wearing what appeared to be
the same uniform he and his partner were wearing. Rowlett had been
instructed not to chase after anyone, and so he remained at the
store and called the police. Defendant was later apprehended by
Greensboro police and charged with both common law robbery and
conspiracy to commit common law robbery, the latter based on
evidence that defendant and Cooks, Rowlett's driver, acted in
concert to commit the crime.
Cooks testified against defendant at trial. During his
testimony, Cooks read to the jury three anonymous threatening
letters that he stated he received in jail, testified that he had
been threatened, and stated that he had passed a polygraph test
regarding these events.
On 11 May 2006, defendant was convicted by a jury of common
law robbery and conspiracy to commit common law robbery, then pled
guilty to being an habitual felon. He was sentenced in the
presumptive range to 90 to 117 months on the first count and 90 to
117 months on the second count, to run at the expiration of the
first sentence. Defendant appeals his conviction for common law
robbery.
(See footnote 1)
I.
[1] “When ruling on a motion to dismiss, the trial court must
determine whether the prosecution has presented 'substantial
evidence of each essential element of the crime.'”
State v. Smith,
357 N.C. 604, 615, 588 S.E.2d 453, 461 (2003) (quoting
State v.
Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998),
cert. denied,
534 U.S. 1046, 151 L. Ed. 2d 548 (2001)). “'Substantial evidence'
is relevant evidence that a reasonable person might accept as
adequate, or would consider necessary to support a particular
conclusion[.]”
State v. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724,
746 (2004) (internal citation omitted). “'The reviewing court
considers all evidence in the light most favorable to the State,
and the State receives the benefit of every reasonable inference
supported by that evidence. Evidentiary “[c]ontradictions and
discrepancies are for the jury to resolve and do not warrant
dismissal.”'”
State v. McNeil, 359 N.C. 800, 804, 617 S.E.2d 271,
274 (2005) (quoting
Garcia, 358 N.C. at 412-13, 597 S.E.2d at 746)
(alteration in original).
Common law robbery “is the felonious taking of money or goods
of any value from the person of another, or in his presence,
against his will, by violence or putting him in fear.”
State v.
Stewart, 255 N.C. 571, 572, 122 S.E.2d 355, 356 (1961). “It is not
necessary to prove both violence and putting in fear--proof of
either is sufficient.”
State v. Moore, 279 N.C. 455, 458, 183
S.E.2d 546, 547 (1971). The primary element in dispute here is the final one: Taking
the property “by violence or putting [the victim] in fear.”
Stewart, 255 N.C. at 572, 122 S.E.2d at 356.
Generally the element of force in the
offense of robbery may be actual or
constructive. Although actual force implies
personal violence, the degree of force used is
immaterial,
so long as it is sufficient to
compel the victim to part with his property or
property in his possession. On the other
hand, under constructive force are included
“all demonstrations of force, menaces, and
other means by which the person robbed is put
in fear sufficient to suspend the free
exercise of his will or prevent resistance to
the taking . . . [.] No matter how slight the
cause creating the fear may be or by what
other circumstances the taking may be
accomplished, if the transaction is attended
with such circumstances of terror, such [as]
threatening by word or gesture, as in common
experience are likely to create an
apprehension of danger and
induce a man to
part with his property for the sake of his
person, the victim is put in fear.”
State v. Sawyer, 224 N.C. 61, 65, 29 S.E.2d 34, 37 (1944) (quoting
46 Am. Jur. 146) (emphasis added).
The key distinction here is that, while there clearly was a
battery, it did not induce Rowlett to part with the money. The
facts as evidenced from Rowlett's own testimony was that he was
sprayed with an unidentifiable substance, felt the back of his head
to see what it was, and then turned around to find defendant
already running out the door with the money. Certainly, spraying
someone with pepper spray, even on the back of the head, is a use
of force, but in this instance that force did not instill the fear
necessary such that defendant's obtaining the money could be
considered common law robbery. The State argues to this Court that the above-quoted language
means that any time a person's “resistance to the taking” of
property is “prevent[ed],” constructive force -- and therefore a
common law robbery -- has occurred. This meaning only appears when
the phrase is taken out of context. The full sentence states:
“under constructive force are included 'all demonstrations of
force, menaces, and other means by which the person robbed is put
in fear sufficient to [1] suspend the free exercise of his will
or
[2] prevent resistance to the taking[.]”
Id. (emphasis added).
That is, the person must not only be prevented from resisting; that
prevention must be accomplished by putting the person in fear. The
State's argument that Rowlett's lack of resistance proves that he
was put in fear is unconvincing, particularly considering Rowlett's
own testimony that he was instructed not to give chase in the event
of a robbery.
Although we must take the facts in the light most favorable to
the State here, the record shows no evidence that the money was
taken from Rowlett by the use of violence or putting him in fear.
However, the remaining elements of common law robbery -- that
defendant took money from the person of another, or in his
presence, against his will -- together constitute the crime of
larceny from the person.
As our Supreme Court has stated, “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. Buckom, 328
N.C. 313, 317, 401 S.E.2d 362, 365 (1991). Defendant also arguesto this Court that, because the money involved was in a cart to
Rowlett's side, it was not taken from his person or presence as
required for a conviction of common law robbery. The requirement
for the crime of larceny from the person is slightly different, so
we consider defendant's argument on this point here.
For the crime of larceny from the person, the property must be
taken “'from one's presence and control[,]'” which our Supreme
Court has stated means “the property stolen must be in the
immediate presence of and under the protection or control of the
victim at the time the property is taken.”
State v. Barnes, 345
N.C. 146, 149, 478 S.E.2d 188, 190 (1996) (emphasis omitted)
(quoting
Buckom, 328 N.C. at 317-18, 401 S.E.2d at 365). As this
explanation suggests, our courts' holdings as to when larceny from
the person has been committed have concentrated on the physical
proximity of the victim to the property when it was taken.
See
Buckom, 328 N.C. at 318, 401 S.E.2d at 365 (defendant's taking
money from cash register when cashier was standing in front of
register making change constituted larceny from the person);
State
v. Wilson, 154 N.C. App. 686, 689-91, 573 S.E.2d 193, 195-97 (2002)
(same);
State v. Pickard, 143 N.C. App. 485, 491, 547 S.E.2d 102,
106-07 (2001) (finding evidence that defendant snatched victim's
purse off her arm while standing behind her sufficient to support
conviction for larceny from the person);
Barnes, 345 N.C. at 148-
50, 478 S.E.2d at 189-90 (where employee in charge of bank bag left
it under cash register and was in kiosk twenty-five feet away, bag
was no longer in his presence or control for purposes of larcenyfrom the person);
State v. Lee, 88 N.C. App. 478, 478-79, 363
S.E.2d 656, 656 (1988) (theft of purse not larceny from the person
where purse was left in grocery cart and stolen while owner walked
away for four or five minutes).
In the case at hand, Rowlett had the money close at hand and
was in the middle of the replenishment transaction with the ATM
when the money was removed from his possession. Further, although
the money does not appear from the record to have been in Rowlett's
line of sight, as we noted in
Barnes, “if a man carrying a heavy
suitcase sets it down for a moment to rest, and remains right there
to guard it, the suitcase remains under the protection of his
person.”
Barnes, 345 N.C. at 148, 478 S.E.2d at 190 (quoting
Rollin M. Perkins & Ronald N. Boyce,
Criminal Law 342-43 (3d ed.
1982)).
Thus, we find substantial evidence was presented for all the
elements of larceny from the person, and as such remand this case
for sentencing on that basis.
II.
[2] At trial, Cooks, defendant's alleged co-conspirator, was
allowed to testify that defendant and another person had “sent
[him] threats” and to read to the jury three threatening letters
that he testified he had received while in prison. Defendant
argues that both pieces of testimony were improperly admitted;
specifically, that Cooks's testimony as to threats he received was
unduly prejudicial, and that the letters were not properlyauthenticated before being read to the jury. Both of these
arguments are without merit.
We first note that defendant has the burden to show not only
that the evidence was admitted in error, but also that the error
was prejudicial. That is, a defendant must show that, but for the
error, a different result would likely have been reached.
State v.
Freeman, 313 N.C. 539, 548, 330 S.E.2d 465, 473 (1985).
Cooks's statement regarding the threats came in the context of
his testimony about defendant and another person coming to his
house to urge him to commit certain crimes with them. Cooks
stated: “[H]e -_ they sent threats, and they said that I needed to
help them or, you know, something was going to happen to me if I
didn't.” He also testified that he “didn't want to participate[,]”
but the pair “kept pushing and urging.” Defendant argues that this
testimony exaggerated his propensity for violence, and thus “its
probative value is substantially outweighed by the danger of unfair
prejudice” and so should have been excluded. N.C. Gen. Stat. § 8C-
1, Rule 403 (2005).
The letters Cooks was allowed to read to the jury urged him
not to testify and explained at length how, if Cooks did not
testify against his co-conspirators, he would not serve any further
jail time. Only one of the three was signed; it stated it was from
“Two Guns,” which Cooks stated he understood to mean defendant,
having heard defendant refer to himself that way in the past.
Defendant argues that, because the trial court allowed the lettersto be read without authenticating their handwriting, they were
hearsay and thus inadmissible.
Regardless of whether these pieces of evidence were in fact
inadmissible, however, defendant cannot show that without them a
different result would likely have been reached. As to the
testimony regarding the threats, the statements specified in
defendant's assignments of error (quoted above) are just two
sentences of Cooks's testimony as to defendant's threatening
behavior, the whole of which covers several pages of the record.
The removal of these two sentences would have no discernable effect
on the thrust of Cooks's testimony as to defendant's threats. As
to the letters, defendant only argues that they are highly
prejudicial because the handwriting was not authenticated, which is
in fact an argument as to why they are
hearsay, not why they are
prejudicial.
Defendant cannot show why the exclusion of this evidence would
have led to a different result at trial, and as such, this
assignment of error is overruled.
III.
[3] Finally, defendant argues that his counsel's failure to
object to the mention of Cooks's having taken a polygraph test
constituted ineffective assistance of counsel. This argument is
without merit.
The fact that Cooks had taken a polygraph test came up three
times during the trial: Twice during Cooks's own testimony, and
once during the testimony of Detective Jackie Taylor of the RaleighPolice Department. Defense counsel did not object at any of these
times. When Cooks read the above-mentioned letters to the jury,
one letter contained the following statement: “I fully explained
to him how the police threatened you with a murder charge if you
didn't tell them what they wanted to hear, even though you passed
a polygraph test.” Next, during defense counsel's cross-
examination of Cooks, she asked: “Did you tell the police officers
that you had to go about four weeks ago and take a polygraph?”
This was repeated twice after the State objected and the court
overruled it before Cooks answered; he then answered “[y]es” and
defense counsel moved on to what else Cooks had told the police.
Finally, during Detective Taylor's testimony, defense counsel read
aloud a portion of the detective's report summarizing what Cooks
had told them: “I had to go about four weeks ago and take a
polygraph at the police department.”
Defense counsel's failure to object to these statements at
trial means that this Court reviews defendant's arguments under a
plain error standard.
See State v. Mitchell, 328 N.C. 705, 711,
403 S.E.2d 287, 290 (1991). However, “[t]he fact that counsel made
an error, even an unreasonable error, does not warrant reversal of
a conviction unless there is a reasonable probability that, but for
counsel's errors, there would have been a different result in the
proceedings.”
State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d
241, 248 (1985). Again, given the very slight nature of these
pieces of evidence, defendant cannot show that without them adifferent result would have been reached. As such, this assignment
of error is overruled.
IV.
We find no prejudicial error resulted from the admission of
the letters, testimony of threats, or evidence of Cooks's polygraph
test. However, because the State did not present evidence of all
the elements of common law robbery but did present evidence of all
the elements of larceny from the person, we vacate the verdict on
common law robbery and remand to the trial court for resentencing
based on a charge of larceny from the person.
Vacated and remanded.
Judges WYNN and BRYANT concur.
Footnote: 1