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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 3 July 2007
STATE OF NORTH CAROLINA
Nos. 02 CRS 216576
RONNIE O. EDWARDS 02 CRS 78775
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.
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
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
I. SUFFICIENCY OF THE 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.
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.
II. FAILURE TO INTERVENE EX MERO MOTU
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),
, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003). The trial
court's instruction thus cured any error. Defendant's argument is
Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).
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