Converted WP file 060961-1

On writ of certiorari to review judgment entered 4 May 2004 by Judge J. Gentry Caudill in Mecklenburg County Superior Court. Heard in the Court of Appeals 23 April 2007.

Attorney General Roy Cooper, by Special Deputy Attorney General E. Burke Haywood, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Keischa M. Lovelace, for Defendant.

    STEPHENS, Judge.

    On 4 May 2004, a jury found Defendant guilty of attempted common law robbery and habitual felon status. The trial court sentenced him on that date to 130 to 165 months in prison. Defendant did not timely file a notice of appeal, but on 5 December 2005 this Court allowed Defendant's petition for a writ of certiorari. On review of the trial court's judgment entered upon the jury's verdict, we find no error in Defendant's trial.
    At trial, the State's evidence tended to show that on 15 April 2002, Sonya Ransome was loading groceries into the rear of her vehicle parked outside a Food Lion grocery store located on West Sugar Creek Road in Charlotte when a red pickup truck stopped behind her. A man exited the driver's side of the truck, told Ms.Ransome, “You got to give me this[,]” and grabbed Ms. Ransome's purse. Ms. Ransome resisted, and the two struggled for one to two minutes over possession of the purse until the purse strap either broke or detached from the purse. Thereafter, the man retreated to his truck without the purse and drove away.
    Ms. Ransome called 911 and reported the incident to a dispatcher. She described the truck and provided the dispatcher with the truck's license plate number, as obtained by a witness to the incident.
    Officer Leo Savitch of the Charlotte-Mecklenburg Police Department responded to the call. Upon arriving at the scene, he met Ms. Ransome, who was visibly upset and crying. Ms. Ransome related what had happened and provided a description of her assailant and his vehicle. Ms. Ransome also told Officer Savitch she observed a female lying in the back seat of the truck. Officer Savitch interviewed other witnesses at the scene, and based on the information he gathered, he reported over the radio “a full-sized Ford F150, red in color, North Carolina tag . . . traveling west on West Sugar Creek toward W.T. Harris . . . being driven by a black male[]” with a black female passenger lying down on the seat.
    Mecklenburg County ABC Board Officer T.L. Ashby was pulling into a gas station when he received a broadcast of an all points bulletin (“APB”) from the Mecklenburg County Center Dispatcher regarding the truck. The APB gave the license plate number and a description of the vehicle. Officer Ashby noticed a red pickup truck while at the gas station and he asked the dispatcher for are-broadcast of the license plate number and vehicle description. Upon confirming that the license plate number and vehicle description matched the suspect vehicle, Officer Ashby pulled up to a gas pump to maintain visual contact with the vehicle, whereby he noticed a female lying down in the back seat. The truck left the gas station, and Officer Ashby followed the vehicle in his unmarked police car. When the driver of the truck failed to stop at a traffic light, Officer Ashby initiated a traffic stop. The driver parked and attempted to exit the vehicle hurriedly, but Officer Ashby ran to the truck with his gun drawn, and forced the driver back into the vehicle. At trial, Officer Ashby identified Defendant as the driver of the truck.
    Meanwhile, Officer Savitch was still at the Food Lion with Ms. Ransome when he received information that a vehicle had been stopped which matched the description he had just given to dispatch. Officer Savitch escorted Ms. Ransome to the location where the suspect vehicle had been stopped. There, Ms. Ransome positively identified the driver of the vehicle as the man who attempted to take her purse. At trial, Ms. Ransome again identified Defendant as her assailant. Defendant did not offer any evidence.

    By his first assignment of error, Defendant argues that the trial court erred in denying his motion to dismiss the charge of attempted common law robbery for insufficiency of the evidence. We disagree.    In reviewing the denial of a motion to dismiss for insufficient evidence, the question for this Court is whether there is substantial evidence (1) of each essential element of the offense charged and (2) of defendant's being the perpetrator of such offense. State v. Scott, 356 N.C. 591, 573 S.E.2d 866 (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 (citation omitted). This Court “must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.” Id. at 596, 573 S.E.2d at 869 (citation omitted). “Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.” Id.
    Attempted common law robbery requires (1) the specific intent to commit common law robbery and (2) “a direct but ineffectual act” toward the robbery's commission. State v. Whitaker, 307 N.C. 115, 118, 296 S.E.2d 273, 274 (1982). “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 (citation omitted), cert. denied, 459 U.S. 1056, 74 L. Ed. 2d 622 (1982). Defendant contends that the State failed to present substantial evidence (1) to establish the element of violence or fear and (2) to identify Defendant as the perpetrator of the offense.
    In this case, and viewing the evidence in the light most favorable to the State, the State presented substantial evidencethat Defendant attempted to take Ms. Ransome's purse without her consent by means of violence or fear. The testimony at trial tended to show that (1) Defendant told Ms. Ransome, “You got to give me this[,]” (2) Defendant engaged in a forceful one to two minute struggle with Ms. Ransome in an attempt to gain possession of her purse, (3) Defendant pulled the strap with such force that it either broke or detached from the purse, and (4) afterwards, Ms. Ransome was visibly upset and crying. While our courts have repeatedly held that mere purse-snatching constitutes larceny, not robbery, see, e.g., State v. Robertson, 138 N.C. App. 506, 509, 531 S.E.2d 490, 493 (2000) (finding larceny, not robbery, where “the only force used by defendant was that sufficient to remove [victim's] purse from her shoulder[]”), the force used by Defendant went beyond what was sufficient to merely remove Ms. Ransome's purse from her shoulder. The State presented substantial evidence to establish the element of violence or fear.
    We also disagree with Defendant's contention that the State failed to present substantial evidence to identify Defendant as the perpetrator of the offense. Ms. Ransome positively identified Defendant as her assailant at trial. Her identification testimony was corroborated by other circumstantial evidence, including Officer Ashby's testimony regarding the circumstances surrounding the stop of Defendant. The State presented substantial evidence to identify Defendant as the perpetrator of the offense. Defendant's assignment of error is overruled.

    Defendant also contends that the trial court erred in failing to intervene ex mero motu when the prosecutor allegedly misstated Officer Savitch's testimony during his closing argument. Since defense counsel did not object to the alleged misstatement at trial, our standard of review is “whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu.” State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002) (citation omitted). “[T]he impropriety of the argument must be gross indeed in order for this Court to hold that a trial judge abused his discretion in not recognizing and correcting ex mero motu an argument which defense counsel apparently did not believe was prejudicial when he heard it.” State v. Johnson, 298 N.C. 355, 369, 259 S.E.2d 752, 761 (1979) (citation omitted).
    Defendant contends that during the State's closing argument, the prosecutor erroneously misstated Officer Savitch's testimony by telling the jury that Ms. Ransome was informed the man in custody “may or may not” be her assailant. Officer Savitch did not explicitly tell Ms. Ransome that the man in custody “may or may not” be her assailant. Rather, Officer Savitch informed Ms. Ransome that he was taking her to see a “possible suspect[,]” and “if she could possibly identify him . . . she could [so indicate].” Although the prosecutor misstated what Officer Savitch actually said during his testimony, the prosecutor's statement was nonetheless consistent with Officer Savitch's characterization of Defendant as a “possible suspect[.]” We conclude that theprosecutor's statement was not so grossly improper that the trial court erred in not intervening ex mero motu.
    Moreover, even if the trial court did err in failing to intervene, we find no prejudice. Ms. Ransome positively identified Defendant, and corroborating evidence supports her testimony. Furthermore, in its instructions to the jury, the court cautioned the jurors to rely upon their own recollections of the evidence over anything different stated by the prosecutor or defense counsel. It is presumed that a jury will follow the trial court's instructions. State v. Wiley, 355 N.C. 592, 565 S.E.2d 22 (2002), cert. denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003). The trial court's instruction thus cured any error. Defendant's argument is without merit.
    NO ERROR.
    Chief Judge MARTIN and Judge STEELMAN concur.
    Report per Rule 30(e).

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